text:
    Donald G. WESTBROOK et al., Petitioners, v. Paul W. KOORS et al., Respondents.
    No. 47149.
    Supreme Court of Florida.
    Sept. 30, 1975.
   Certiorari denied. 310 So.2d 61.

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


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    CITY OF MIAMI et al., Appellants, v. Dorothy SPURRIER, Appellee.
    No. 74-1783.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 3, 1975.
    John S. Lloyd, City Atty., and Ronald A. Silver, Asst. City Atty., Elliot L. Miller, Miami, for appellants.
    Charles J. Crowder, South Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

This is an appeal by the City of Miami and Miami City Employees’ Retirement System, garnishees in the circuit court, from a final judgment of garnishment in favor of Dorothy Spurrier, appellee and garnishor in the circuit court.

Appellee commenced an action for dissolution of marriage against her husband, Forrest Noel Spurrier, in November, 1970. In February, 1971, the circuit court entered its final judgment of divorce which contained provisions requiring the husband to pay certain sums of monies for alimony, child support, and medical expenses. Subsequently, appellee sought to enforce these provisions through garnishment proceedings.

During pendency of this action, appel-lee’s husband was employed by the City of Miami, a Florida municipal corporation, as a fireman. As an employee of the City of Miami Fire Department, he was a member of the Miami City Employees’ Retirement System.

Under this System, appellee’s husband and the City of Miami made contributions of money in his favor to the System for retirement benefits. On August 16, 1974, the husband became entitled to the benefits for service retirement provided under said System and began receiving a payment in the amount of $516.30 per month.

Thereafter, appellee, due to the alleged failure of the husband to comply with the order of the circuit court awarding alimony, child support, and medical payments to her, sought to garnish the monthly payments. The City of Miami and the Miami City Employees’ Retirement System, as garnishees, moved to dissolve the writ of garnishment filed by appellee and said motions were denied by the circuit court which entered its final judgment of garnishment dated November 27, 1974. From said judgment appellants bring this appeal.

Appellants contend that the trial court erred in entering the final judgment of garnishment against a municipal corporation, the City of Miami, and its agency, the Miami City Employees’ Retirement System, where alimony, child support and medical payments were the subject of the garnishment proceedings. As grounds for this contention, appellants assert that as a municipal corporation and its agency they are exempt from garnishment. As authority for this proposition appellants cite the cases of Tyler v. Akerman, 1923, 85 Fla. 485, 96 So. 838, and Ake v. Chancey, 1943, 152 Fla. 677, 13 So.2d 6. Additionally, appellants cite § 2-97, City of Miami Ordinance, Code 1945, ch. 2, § 72, which provides, among other things, that pension rights are not subject to garnishment.

Appellee contends that, where as here the purpose of the garnishment proceedings is to secure the payment of alimony, child support, and medical payments, her ex-husband’s pension funds are properly the subject of garnishment. As authority for her contention, appellee cites § 61.12 Fla.Stat., F.S.A.; City of Jacksonville v. Jones, Fla.App. 1968, 213 So.2d 259; and several cases from other jurisdictions.

After careful research, we are unable to find any Florida case addressing itself directly to the question raised on this appeal, i. e., are pension benefits provided through the Miami City Municipal Employees’ Retirement System subject to garnishment for alimony, child support and medical payments by a pensioner’s divorced wife ?

The basic theory underlying appellee’s contention is that § 2-97, Ordinance of the City of Miami, Code 1945, ch. 2, § 72, was not intended to be used for the sole use and benefit of the pensiqner to the exclusion and detriment of his family, but was to encompass the pensioner and his dependents for their mutual use and benefit, to protect them from ordinary judgment creditors. Among the authorities cited by ap-pellee in support of her position is 54 A.L.R.2d 1436, § 7 Pensions and Veterans Benefits which states that, “In a majority of the cases in which the question has been considered, it has been held that statutory exemptions relating to civil pensions are inapplicable when in conflict with the enforcement of a decree for alimony or support.”

The Florida Legislature, being aware that it is the duty of a spouse to support his or her family, enacted § 61.12, Fla. Stat., F.S.A., providing for the attachment or garnishment of amounts due for alimony or child support. The First District Court of Appeal of Florida, in the case of City of Jacksonville v. Jones, Fla.App., 213 So.2d 259, interpreting § 61.12, Fla.Stat., F.S.A., in a garnishment case involving child support and alimony stated as follows :

“The public policy of this state requires that judicial orders providing for payment of child support be enforceable. Otherwise, the children for whose benefit the orders are rendered might well become public charges. By the subject enactment, the Legislature authorized garnishment against funds owed by the sovereign, i. e., the State of Florida; and having taken this action, it is our construction that the statute intended to remove any immunity from garnishment inuring to the sovereign’s child, i. e., the municipality.”

The ruling of the court is clear that the wages of an employee of a municipality may be garnisheed in order to enforce an order of the court for support and maintenance of the employee’s family. For purposes of the instant appeal, we agree with the First District Court of Appeal’s reasoning in the City of Jacksonville case, supra, i. e., that in cases where alimony and child support are involved, municipalities and their agencies may be subject to garnishment proceedings. In the instant appeal, however, § 2-97, City of Miami Ordinance, Code 1945, ch. 2, § 72, intervenes. As stated above, this section exempts the pension funds from garnishment.

After a careful reading of the cases and authorities cited and argued by appellants and appellee, based on the facts of this appeal, we adopt the reasoning of those cases from other jurisdictions which hold that, even in light of an exemption statute or ordinance, such as here, pension benefits payable to a divorced spouse may be reached by garnishment to satisfy an award of alimony, child support, and maintenance. For example, Ex parte Smallbone, 16 Cal.2d 532, 106 P.2d 873 (1940); Schlaefer v. Schlaefer, 71 App.D.C. 350, 112 F.2d 177 (1940); McDonald v. McDonald, 351 Mich. 568, 88 N.W.2d 398 (S.C.Michigan 1958); Thiel v. Thiel and Koppers Company, Inc., 41 N.J. 446, 197 A.2d 354, 1963; Fischer v. Fischer, 13 N.J. 162, 98 A.2d 568, 1953; Fox v. Fox, 9 Misc.2d 1092, 168 N.Y.S.2d 815 (S.C.New York, 1957); Hodson, Com’r of Public Welfare v. New York City Employees’ Retirement System, 243 App.Div. 480, 278 N.Y. 16 (S.C.App.Div., 1936); Courtney v Courtney, 251 Wis. 443, 29 N.W.2d 759 (1947); Saunders v. Saunders, 243 Wis. 94, 9 N.W.2d 629 (1943); and 24 Am.Jur. 2d, § 723 Divorce and Separation.

Our research reveals that Chapter 175 of the Florida Statutes dealing with municipal firemen’s pension funds and § 2-97 City of Miami Ordinance are patterned after other state statutes and ordinances relating to exemptions from any legal process, such as garnishment, to reach the funds of pensioners who are entitled to benefits from pension funds. As stated above, the courts in several states and the District of Columbia have repeatedly held, even in the face of such exemption statutes, that pension funds can be reached through legal process where legal action is taken to secure the payment of alimony, child support and maintenance of the dependents of the pensioner. In these cases, many of the courts seem to find that a true debtor-creditor relationship does not exist whereby the exemption would relieve the person exempt from the pressure of claims hostile not only to his own essential needs but also to those of his dependents. We agree, and feel that the purpose of the exemption statute or ordinance is served when the fund is preserved for the use of the pensioner and those legally dependent upon him or her for support and maintenance.

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

Affirmed.


author: PER CURIAM. GRIMES, Judge

text:
    CENTRAL PLAZA BANK AND TRUST COMPANY, Administrator of the Estate of Marie E. Chadwick, Deceased, Petitioner, v. Max LANDER, Respondent.
    No. 75-257.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1975.
    Rehearing Denied Nov. 10, 1975.

      Charles S. Carrere of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for petitioner.
    Max Lander, pro se.
   PER CURIAM.

Respondent, Max Lander, is suing petitioner, Central Plaza Bank and Trust Company, administrator of the estate of Marie E. Chadwick having replaced Donald Bush, executor of the estate, for sums of money allegedly expended by him on behalf of petitioner’s decedent. During the course of pretrial proceedings, the circuit court entered an order denying the petitioner’s motion to produce respondent’s income tax returns for the last three years and denying petitioner’s motion for issuance of a commission to take the deposition of an Internal Revenue Service representative in Atlanta, Georgia, for the purpose of obtaining these returns. The petition for certiorari attacks this order.

One of petitioner’s defenses to respondent’s claim is that respondent paid the decedent’s bills with the decedent’s own money. Hence, he argues that respondent’s income during the applicable period of time is pertinent to his defense. Notwithstanding the objection of the respondent, we hold the production of respondent’s income tax returns is sufficiently relevant to the issues in this case as to require their production under the liberal rules of pretrial discovery. See Leby Estates, Inc. v. Polly, Fla.App.2d, 1975, 308 So.2d 165.

The petition is granted, and the court is directed to enter an appropriate order which will enable the petitioner to obtain copies of the income tax returns.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

GRIMES, J., dissents with opinion.

GRIMES, Judge

(dissenting).

Had I been the trial judge, I would have required the production of the income tax returns. However, since the respondent’s income is not directly in issue in this case, I cannot say that the order entered below constituted a “departure from the essential requirements of the law.” County of Dade v. Baird, Fla.App.3d 1968, 211 So.2d 609.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Gungor Mehmet YATMAN, a/k/a Gungor Mehmet Yatmanaka, Appellee.
    Nos. 74-1097, 74-1098.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1975.
    Rehearing Denied June 20, 1975.
    Philip S. Shailer, State’s Atty., and Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Howard M. Zeidwig, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This case involves (1) what we perceive to be a serious ethical question in the prosecution of criminal cases and (2) the propriety of the court’s dismissal of an information appellant had filed against appellee charging him with grand larceny of three hundred pairs of shoes from Florida WMC, Inc., on February 3, 1974.

One Kozakoff was charged in another case with receiving stolen property belonging to Florida WMC, Inc., on February 3, 1974. Counsel for Kozakoff filed a witness list naming appellee as a witness in the Kozakoff case. Thereupon the assistant state attorney handling the Kozakoff case obtained the issuance of a witness subpoena commanding appellee to appear in his office two days later. The appellant gave no notice of any kind to the lawyer who represented appellee in the grand larceny case appellant had filed against him. However, about an hour before appellee was to appear at the state attorney’s office, appellee notified his lawyer of the subpoena. The lawyer advised appellee that he was unable to attend the deposition with him because of other commitments, but he stated: “If you have a subpoena, you go. If they want to take your statement from you and immunize you for this, I am happy.” Appellee appeared at the appointed time, and his deposition was taken. That deposition shows that the assistant state attorney advised appellee of his rights and asked him if he would sign a waiver form which was read into the record. Appellee agreed and did sign the waiver form.

When the case came on for trial counsel for appellee orally moved the court to dismiss the information on the grounds that the appellant by taking appellee’s deposition without his counsel being present had effectively granted appellee immunity. The trial court granted the motion, ruling that appellee did not intelligently waive immunity, and dismissed the grand larceny information. Yet the only evidence before the trial court was the deposition in question and assertions made by appellee’s lawyer in arguing the oral motion to dismiss.

We agree with the appellant that the record made before the trial judge was inadequate to support a finding that appel-lee did not waive immunity. On remand appellee should be afforded an opportunity to file a proper motion in accordance with Rule 3.190(a), RCrP, and the court should then hold a hearing to determine the issues created by said motion. If the court finds the waiver was involuntary, then dismissal of the information for grand larceny and another information for harboring a felon would be proper. On the other hand if the waiver was voluntary, a motion to dismiss on that ground should be denied.

This brings us to the ethical considerations involved in a case when the prosecution communicates with an individual charged with an offense but does so without notifying that individual’s attorney. We concede that the case in which the deposition was taken was not the criminal case in which the appellee was the defendant. However, the charge against Koza-koff and the charge against appellee either arose out of the same criminal episode or else are so closely connected as to make testimony which is relevant in one case very likely relevant in the other. We concede also that counsel for appellee did receive actual knowledge of the subpoena within the hour before his client was mandated to appear. But the ethical violation had occurred, or at least had been set in motion, by that point.

There appears to be some doubt among some prosecutors that DR7-104 Code of Professional Responsibility, 32 F.S.A., applies to their activities. Perhaps this doubt exists because prosecutors do not have an individual client to represent. Be that as it may, there is probably no provision of the Canons of Ethics more sacred between competing lawyers than the prohibition against communicating with another lawyer’s client on the subject of the representation. Such knowing communication constitutes the grossest sort of unethical conduct.

Disciplinary Rule 7-104 of the Code of Professional Responsibility applies equally to lawyers involved in the prosecution of criminal cases as in civil cases. United States v. Thomas, 474 F.2d 110 (10th Cir.1973); United States v. Vasquez, 476 F.2d 730 (5th Cir. 1973); Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974). If any communication with a person represented by counsel on the subject under litigation is prohibited, then taking the deposition of an individual charged with a criminal offense without notice to his counsel regarding matters which are relevant to the criminal charges pending against said represented individual is also clearly prohibited by the foregoing disciplinary rule.

This record is not clear as to whether the assistant state attorney taking the deposition in fact knew appellee was represented by counsel. It may be that he did not. But in a matter involving this degree of ethical delicacy it would behoove one in his position to make some reasonable inquiry to find out.

While we condemn the procedure employed here, we conclude that it does not automatically require a dismissal of the information, since the authorities generally hold that violations of ethical considerations do not require reversal on appeal. See federal cases cited above.

The question yet remains to be determined whether appellee intelligently waived the right to immunity. Accordingly, we reverse the order appealed from and remand the cause for further proceedings consistent with this opinion.

WALDEN and CROSS, JJ., concur.

DOWNEY, Judge.

ON PETITION FOR REHEARING

On petition for rehearing appellant suggests we should modify our opinion in this case published May 9, 1975, wherein we held:

“On remand appellee should be afforded an opportunity to file a proper motion in accordance with Rule 3, 190(a), RCrP., and the court should then hold a hearing to determine the issues created by said motion. If the court finds the waiver was involuntary, then dismissal of the information for grand larceny and another information for harboring a felon would be proper. On the other hand if the waiver was voluntary, a motion to dismiss on that ground should be denied.”

Appellant is particularly offended by our direction that the information be dismissed if the court determines after an evidentiary hearing that the waiver of immunity was involuntary. That result, says appellant, is “manifestly erroneous” because the proper remedy for involuntary waiver is suppression, not dismissal. For that pronouncement appellant relies upon United States v. Crook, 502 F.2d 1378 (5th Cir. 1974); United States v. Masullo, 489 F.2d 217 (2nd Cir. 1973); and other cases of like import, which recognize that the remedy for taking an involuntary statement or confession is suppression. It is manifest that appellant has failed to distinguish that situation from the one at bar. Here, we are dealing not simply with the taking of a statement but more importantly with the waiver of immunity statute, § 914.04 F.S. 1973. The effect of our holding is that if the alleged waiver of immunity was involuntary, then the state by issuing process to require appellee to testify before the state attorney without an intelligent waiver of immunity has effectively immunized the appellee from prosecution in accordance with the statute.

Accordingly, appellant’s petition for rehearing is denied.

WALDEN and CROSS, JJ., concur.


author: DOWNEY, Judge. DOWNEY, Judge.

text:
    COMPUTER CENTER, INC., et al., Appellants, v. VEDAPCO, INC., a Florida Corporation, Appellee. Valerie B. MILLS and H. Jefferson Mills, her husband, Appellants, v. VEDAPCO, INC., a Florida Corporation, Appellee.
    Nos. 74-442, 74-443.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearing Denied Nov. 7, 1975.

      Michael B. Davis of Walton Lantaff Schroeder Carson & Wahl, West Palm Beach, and Baugher & Mettler, Palm Beach, for appellants.
    Sidney M. Dubbin, West Palm Beach, for appellee.
   DOWNEY, Judge.

This is an appeal from final judgments rendered after jury verdicts in two cases consolidated for trial and which have been consolidated for appeal. '

.In case #74-442, appellee Vedapco, Inc., sued appellants Computer Center, Inc.; Jefferson Mills, Jr.; and Valerie B. Mills in two counts, (1) upon an open account and (2) upon an account stated. Appellant Computer Center, Inc., filed a counterclaim against appellee for replevin of certain personal property and damages.

In case # 74 — 443, appellee Vedapco, Inc., sued appellants Jefferson Mills, Jr., and Valerie B. Mills, for damages for the value of services rendered. Those appellants filed a counterclaim against appellee for damages for fraud and deceit.

At the close of appellee’s case in chief on both complaints, all appellants moved for a directed verdict. The court denied the motion. Appellants then presented their case (a) in defense of appellee’s claims, and (b) in support of their counterclaims. Appellants then renewed their “motion for a directed verdict as made at the conclusion of plaintiff’s case” in both cases and “an affirmative motion for a directed verdict on the counterclaim regarding Computer Center . . . . ” The court denied both of appellants’ motions. After appellee offered evidence in defense of the Mills counterclaim both sides rested without making any further motions. In case #74-442, the jury returned a verdict for appellee on its complaint against all of the appellants and for appellee against appellant Computer Center, Inc., on Computer Center’s counterclaim. In case # 74-443, the jury returned a verdict for appellee and against appellants Mr. and Mrs. Mills on appellee’s complaint and for appellee against those appellants on their counterclaim. After the jury returned the adverse verdicts, all appellants filed a motion for new trial upon the ground, inter alia, of the insufficiency of the evidence.

Appellants’ primary contention here is that the trial court should have granted their various motions for directed verdicts.

However, appellee presents a threshold question, namely, that of appellants’ right to have the denials of their motions for directed verdicts reviewed because of appellants’ failure to renew those motions at the close of all of the evidence. Appellee contends that appellants’ failure to renew those motions after appellee presented rebuttal evidence precludes appellants from questioning the denials of their motions for directed verdicts.

Appellee’s argument might have been persuasive had appellants only made a motion for directed verdict at the close of the appellee’s case in chief on both claims. However, appellants renewed their motion after they presented their case as to appel-lee’s claims and as to their counterclaims. Since the evidence appellee offered thereafter on rebuttal concerned only the counterclaim of Computer Center, the renewed motion was-sufficient to preserve the question for review. See United States v. 353 Cases, etc., 247 F.2d 473 (8th Cir. 1957).

Turning now to appellants’ points on appeal, we agree that the trial court erred in refusing to direct a verdict for Mr. and Mrs. Mills on the claims contained in the complaint in each of the cases.

In case # 74-442, appellee sought to charge Mr. and Mrs. Mills with liability on the ground that the corporation, Computer Center, Inc., was their alter ego and the corporate entity should therefore be disregarded. In support of that theory appellee contends the evidence shows that: (a) Mr. and Mrs. Mills were the sole stockholders of the corporation; (b) the assets of the corporation were sold two months after appellee filed suit; (c) the proceeds from the sale of said assets were used to pay creditors of the corporation, but appellee was paid nothing; (d) Mrs. Mills invested over three million dollars in the corporation but she did not receive a note therefor nor was any of the money repaid to her; (e) the corporation purchased a building for its operations, and Mr. and Mrs. Mills guaranteed payment therefor; (f) Mr. Mills withdrew some $65,000 from the corporation in 1968 and 1969.

Courts are reluctant to disregard the corporate entity unless it is necessary to prevent fraud, illegality, or injustice. However, the corporate veil will be pierced when it is shown that the corporation is a mere device or sham used to mislead creditors or for fraudulent purposes. Aztec Motel, Inc. v. State ex rel. Faircloth, Fla. 1971, 251 So.2d 849; Sirmons v. Arnold Lumber Company, Fla.App.1964, 167 So.2d 588; House of Koscot Dev. Corp. v. American Line Cosmetics, Inc., 468 F.2d 64 (5th Cir. 1972). Upon analyzing appellee’s contentions, we note first that item (f) was not proven. Next, Mrs. Mills’s contribution of over three million dollars to the corporation evidences no fraud nor could her failure to take back a note have misled creditors. The books of the corporation show the corporate indebtedness and further show that Mrs. Mills was not repaid any of said sum. Third, the fact that she and her husband personally guaranteed the indebtedness on a building purchased by the corporation is also no badge of fraud. Fourth, the evidence shows the proceeds of the sale of corporate assets were used to pay creditors; there is no showing that Mr. and Mrs. Mills siphoned off any of the sale proceeds or that the sale was anything but a bona fide transaction. Last, the mere fact that Mr. and Mrs. Mills were the sole stockholders does not warrant piercing the corporate veil. Sirmons v. Arnold Lumber Company, supra.

Accordingly, it is our conclusion that the appellee failed to carry its burden of proof to warrant disregarding the corporate entity and fixing personal liability upon Mr. and Mrs. Mills. Thus, those appellants were entitled to a direct verdict at the close of appellee’s case on the claim set forth in case # 74-442.

The complaint in case # 74 443 alleged that appellee had performed services for another corporation, Chicago Tabulating Service, in which Mr. and Mrs. Mills were the majority stockholders. The complaint sought to fix personal liability on them by alleging (1) that they had assumed and agreed to pay the corporation’s debt, and (2) that when the Chicago Tabulating Service sold its assets, Mr. and Mrs. Mills entered into an indemnification agreement holding the purchaser (Metro-media) harmless as against Chicago Tabulating Service’s creditors. Appellee claimed to be a third party beneficiary of that agreement.

The evidence in the record appellee relies on to show that Mr. and Mrs. Mills had personally assumed the corporate debt is the following testimony of appellee’s president:

“Q. Mr. McIntosh, the best as I recall, the question that I posed to you had to do with reference to the personal liability of Mr. and Mrs. Mills for payment of the Vedapco contract. Now, what light can you shed on that, sir ?
A. Well, only that both of them assured me that it would be paid.
By them personally ? Q.
They assured me it would be paid. I dealt with Mr. Mills and Mrs. Mills on a personal basis regardless of the closed corporation aspect of both Vedapco and their corporations.” A.

That evidence is hardly sufficient to make a prima facie case to prove a promise by Mr. and Mrs. Mills to pay what is acknowledged to have been the debt of the corporation.

With regard to the third party beneficiary theory, it is clear to us that the indemnity contract between the Millses and Metromedia, the purchaser of the Chicago Tabulating Service assets, was for the benefit of Metromedia only. There is nothing in the language of the contract to indicate any intention that it should benefit third parties such as appellee. Under these circumstances appellee cannot rely upon that contract to hold Mr. and Mrs. Mills personally liable for the corporation’s debts. American Surety Co. of New York v. Smith, 100 Fla. 1012, 1016, 130 So. 440, 441 (1930); Muravchick v. United Bonding Insurance Company, Fla.App.1970, 242 So.2d 179. Accordingly, it is our view that Mr. and Mrs. Mills were entitled to a directed verdict on appellee’s complaint in case # 74-443.

We turn now to the two counterclaims. The jury resolved the counterclaim for fraud and deceit in case # 74—443 by finding for the appellee upon conflicting evidence. The entry of judgment for appellee on that counterclaim was therefore proper. However, the record is devoid of any evidence in opposition to the counterclaim of appellant Computer Center, Inc., in case # 74-442. Appellant’s motion for a directed verdict on its counterclaim at the close of its case in chief was premature. Thus, the court properly denied that motion because appellee had not had an opportunity at that point to adduce any proof as to the counterclaim. Since Computer Center, Inc., made no further motion for a directed verdict on its counterclaim, we believe the better procedure would be to review the sufficiency of the evidence as to that appellant’s counterclaim via its motion for new trial. Having done so, we conclude appellant Computer Center, Inc., is entitled to a new trial on its counterclaim.

Accordingly, the judgments appealed from are reversed and remanded with directions to (a) vacate both judgments for appellee against appellants Jefferson Mills, Jr., and Valerie B. Mills, except the judgment for appellee on the counterclaim in case # 74-443, and enter judgments for appellants Jefferson Mills, Jr., and Valerie B. Mills in each case, and (b) grant appellant Computer Center, Inc., a new trial on its counterclaim in case # 74-442.

Appellants also assign the taxing of costs against them as error. In view of our conclusions on the main cases we reverse the order taxing costs and remand it for further consideration by the trial court.

Reversed and remanded with directions.

WALDEN, C. J., and JOHNSON, WM. CLAYTON, Associate Judge, concur.

DOWNEY, Judge.

ON PETITION FOR REHEARING

Appellee’s petition for rehearing correctly points out that on page 406 of our opinion we incorrectly refer to the counterclaim of Computer Center when we intended to refer to the counterclaim of Mr. and Mrs. Mills. However, the point made remains valid, i. e., that the evidence offered by ap-pellee on rebuttal concerned only the counterclaim of Mr. and Mrs. Mills, so that the motion for directed verdict renewed at the end of the defendant’s case was sufficient.

We have considered all of appellee’s other contentions and find them to be without merit. Accordingly, appellee s petition for rehearing is denied.

WALDEN, C. J., and JOHNSON, WM. CLAYTON, Associate Judge.


author: GRIMES, Judge.

text:
    William F. WAGNER and Ernestine Wagner, Appellants, v. Eston E. L. ROBERTS, as Administrator and Heir of Juanita McQuarter, Appellee.
    No. 74-1278.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
    Rehearing Denied Oct. 29, 1975.

      Allen R. Samuels, St. Petersburg, for appellants.
    Horace E. Hill, Daytona Beach, for ap-pellee.
   GRIMES, Judge.

This is an appeal from a final judgment quieting the title of certain property in the plaintiff (Roberts). The origin of this suit is reflected by the following chronology:

(1) On February 11, 1952, Cora Jones conveyed a certain lot to Juanita Mc-Quarter by warranty deed.

(2) In November of 1952, Juanita Mc-Quarter died leaving as her sole heirs, Roberts and his sister Blonde Eva Jones.

(3) On April 24, 1960, Cora Jones executed a mortgage on the property to Sun-niland Development Corporation securing a $6,000 promissory note.

(4) On November 21, 1961, Sunniland Development Corporation assigned the mortgage to defendants (Wagners).

(5) On October 5, 1965, Cora Jones conveyed the property to Roberts and Blonde Eva Jones. This warranty deed provided that the grantees assumed the mortgage of April 24,1960.

All of the instruments mentioned above were recorded shortly following the dates of their execution. On October 21, 1968, the Wagners filed a suit to foreclose the mortgage for default in payment of note. Defaults were taken against Roberts and Blonde Eva Jones and a final judgment of foreclosure was entered. At the foreclosure sale, the land was bought in by the Wagners.

On May 5, 1972, Roberts brought suit as heir of Juanita McQuarter and as administrator of her estate to set aside the judgment of foreclosure. After the taking of testimony, the court entered an order finding that the mortgage from Cora Jones to Sunniland was ineffective since the mortgagor had no title to the property at the time the mortgage was executed and further that the record did not demonstrate that diligent search and inquiry had been made in the foreclosure action to discover the residence of Roberts and Blonde Eva Jones. The plaintiff was allowed to amend the complaint to conform to the evidence by dropping his designation as administrator of the estate and adding- as parties, Blonde Eva Jones and certain persons who had since purchased the property from the Wagners. Thereafter, Roberts filed an amended complaint in compliance with the court’s order and the Wagners filed a general denial and affirmative defenses.

By the time another hearing was held, the circuit judge who had previously heard the case had retired and a new circuit judge presided. This judge refused to permit further testimony by any persons who were parties to the previous hearing and ultimately entered a final judgment confirming the findings set forth in the previous judge’s order and quieting the title of the property in Roberts and against all of the defendants.

While the evidence is susceptible to more than one conclusion, there is competent substantial evidence to support the finding that constructive service was not properly effected against Roberts and Blonde Eva Jones. Therefore, the mortgage foreclosure was properly set aside, and the Wagners and their transferees have no title to the property. Since the mortgagor no longer owned the property when the mortgage was executed, it is not valid. However, if the final judgment is left in its present form, Roberts will be unjustly enriched since some, if not all, of the proceeds of the mortgage went toward the erection of a new house on the property, yet the defendants were refused the right to present further testimony to this end. Roberts did not live there, but he was aware of the house being built. It was he who caused the recording of the 1965 deed from Cora Jones to himself and Blonde Eva Jones in which it was stated that the grantees assumed the Sunniland mortgage. Moreover, Roberts acutally made payments on the mortgage.

Equitable liens arise from two sources: (1) A written contract which shows an intention to charge some particular property with a debt or obligation; and, (2) when declared by a court of equity out of general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings in the particular case. Dewing v. Davis, Fla.App.2d 1960, 117 So.2d 747. Thus an equitable lien will be declared when the claimant has furnished funds for improvement of land with the knowledge and consent of the owner. Carter v. Suggs, Fla.App.1st 1966, 190 So.2d 784.

Even though the mortgage now held by the appellants is not valid, equity dictates that the Wagners should have an equitable lien on the property to the extent they can prove that the property was bene-fitted from the proceeds of the mortgage (not to exceed $6,000) less an amount equal to all principal and interest payments made on the mortgage to date. The Wag-ners shall be entitled to no interest to date on the resulting amount. This amount which shall be determined on remand shall be a lien upon the property and shall be payable in the same installments and at the same rate of interest as the original mortgage note.

The judgment is affirmed in part and reversed in part, and the cause is remanded for further proceedings as prescribed in this opinion.

McNULTY, C. J„ and GRIMES and SCHEB, JJ., concur.

      . The amended complaint alleged that Blonde Eva Jones refused to join as a plaintiff and was therefore joined as a party-defendant. Thus, it would appear that Roberts acquired title to the entire property by virtue of the final judgment. In any event, no appeal has been taken from this aspect of the case.


author: PER CURIAM. DOWNEY, Judge DOWNEY, Judge.

text:
    Ernest GIORDANO, Appellant, v. CITY OF BOYNTON BEACH, Florida, a Municipal Corporation existing under the laws of the State of Florida, Appellee.
    No. 74-1470.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
    Rehearing Denied Oct. 3, 1975.
    Gary I. Zwickel of Sales & Christiansen, Palm Beach, for appellant.
    Ernest G. Simon, Delray Beach, for ap-pellee.
   PER CURIAM.

Affirmed.

DOWNEY, Judge

(specially concurring).

From the record presented in this court it is gleaned that appellant was dismissed from the Boynton Beach Police Department and that the Civil Service Board of that city affirmed the dismissal. Thereafter, on December 5, 1972, appellant filed a petition for writ of certiorari in the circuit court. Appellant obtained several court orders extending the time for filing his brief required by the appellate rules, the last order being dated April 5, 1973.

On July 30, 1974, the clerk of the circuit court filed a motion and notice of dismissal for lack of prosecution pursuant to Rule 1.420(e) RCP. A hearing was held on said motion and appellant’s “statement of good cause” and the trial court dismissed the cause for failure to prosecute pursuant to said rule of civil procedure. Appellant filed a timely petition for rehearing and a motion for relief under Rule 1.540(b)(1), RCP based upon excusable neglect. Both motions were denied and appellant has filed an interlocutory appeal.

It appears that everyone has treated the proceedings in the circuit court as though they were governed by the Florida Rules of Civil Procedure, whereas they should be governed by the Florida Appellate Rules. See Rule 4.7, FAR. Those rules require that a petition for certiorari be accompanied by a brief. Rule 4.5, subd. c, FAR. The circuit court by virtue of three orders extending the time for filing such brief relaxed that requirement. See Rule 3.7, subd. d, FAR. Thereafter, it appears that appellee orally agreed to extensions of time but no court order was ever obtained authorizing extension of the time periods set by the appellate rules. Thus, the court would have been well within its discretion had it dismissed the cause of its own motion. So it matters not that the question arose upon the clerk’s notice of dismissal. Nor was appellant’s motion for relief pursuant to Rule 1.540, RCP, appropriate. As heretofore noted the matter pending in the circuit court was not subject to the rules of civil procedure.

Parties to an appellate review cannot waive the appellate rules. If a party proposes to deviate therefrom with impunity he must obtain approval from the court. See: Toney v. Allstate Insurance Company, Fla.App.1973, 291 So.2d 658.

The only feature in this case which makes an affirmance difficult is the fact that counsel for appellee very candidly advised the circuit court that he had orally agreed to the extension of time. Thus, if the proceedings below had been subject to the rules of civil procedure it would appear to me that appellant’s motion under Rule 1.540, RCP, would have sufficed to demonstrate excusable neglect. But as pointed out above, we are not dealing with those rules and on this appeal the sole question is whether or not the lower court abused its discretion. The fact that I may have refused to dismiss the petition under the unusual circumstances of this case had I been the trial judge is not the test. The court had the power to dismiss the cause and appellant was guilty of an inordinate delay in the progression of the petition for writ of certiorari. Thus, I cannot conclude that the lower court abused its discretion.

ON PETITION FOR REHEARING

DOWNEY, Judge.

On petition for rehearing appellant suggests that we overlooked the fact that the petition for certiorari in the circuit court is controlled by Rule 1.640 RCP, and thus his motion filed pursuant to Rule 1.540 RCP, was appropriate. However, as pointed out in the Author’s Comment to Rule 1.640 RCP:

“In terms of the procedure to be followed in the circuit court, once jurisdiction has been properly invoked, Florida Appellate Rule 4.7 establishes that the Florida Appellate Rules shall govern procedure in the circuit courts in the exercise of their appellate jurisdiction.” 31 F.S.A. 384, 387 (1967).

Accordingly, the petition for rehearing is denied.

OWEN and MAGER, JJ„ concur.


author: PER CURIAM.

text:
    RELIANCE INSURANCE COMPANY, Appellant, v. CONSERV, INC., Appellee.
    No. 75-152.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 10, 1975.
    Joseph G. Heyck, Jr., Allen, Dell, Frank & Trinkle, Tampa, for appellant.
    E. Snow Martin, Martin & Martin, Lakeland, for appellee Conserv, Inc.
   PER CURIAM.

Affirmed. See Nixon v. United States Fidelity and Guaranty Company, Fla.1973, 290 So.2d 26; Aetna Insurance Company v. Stevens, Fla.App.2d, 1969, 299 So.2d 601.

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


author: MORROW, R. O., Associate Judge. DOWNEY, Judge

text:
    MICHAEL’S SCHOOL OF DANCE, LANGUAGE AND CHARM, INC., a Florida Corporation, Appellant, v. BROWARD NATIONAL BANK OF FORT LAUDERDALE, as Personal Representative of the Estate of Olive Reid Rankin, Deceased, Appellee.
    No. 74-1038.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Stephen W. Toothaker, Davie, for appellant.
    Philip Michael Cullen, III, Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   MORROW, R. O., Associate Judge.

Plaintiff-appellant, Michael’s School of Dance & Charm, Inc., brought suit against Broward National Bank, as representative of the Olive Rankin Estate for services rendered. The president of Michael’s entered an affidavit that she was the major stockholder, kept the records, and observed decedent taking dancing lessons and that the deceased had received 1,283 hours of dance lessons, for which she owed $20 an hour. The court granted the bank’s motion for final summary judgment on the grounds that “Plaintiff will be barred from making out a prima facie case by virtue of the Dead Man’s Rule.”

Two questions are raised. First, that it was error to grant a summary judgment based on the Dead Man’s Rule; and second, that plaintiff failed to bring an action upon its claim within thirty days from the service of an objection thereto upon it. Fla.Stat. 733.705 (Supp.1974).

The affidavit in objection to the motion for summary judgment in this case does not preclude the showing of any other genuine issue of a material fact. It was error to assume such, in this case, harmless error. However, the above cited statute of limitation is effective in that there is no showing in the record that any extension of time was granted or applied for within which to bring an action upon plaintiff’s claim.

Therefore, the judgment is affirmed.

Affirmed.

CROSS, J., concurs.

DOWNEY, J., specially concurs, with opinion.

DOWNEY, Judge

(specially concurring).

I agree with the result reached in the majority opinion, but deem it advisable to point out that appellee’s motion for summary judgment was based upon two grounds, (1) that appellant would be unable to prove the alleged oral contract with the decedent because of the dead man’s statute, § 90.05, F.S. 1973, and (2) that appellant’s claim is barred by § 733.-18(2), F.S. 1973. The trial court granted summary judgment on ground number one.

As the majority points out, summary judgment based upon the dead man’s statute does not demonstrate the absence of a genuine issue of fact. For aught the record shows, appellant may be able to prove its claim by witnesses who are not within the purview of the dead man’s statute. And nothing filed by appellee in support of its motion for summary judgment required appellant to show just how it proposed to prove the contract in question. However, though the reason for granting the summary judgment was wrong, the judgment itself was properly entered because the record shows that appellant did not bring its suit within 30 days after appellee filed an objection to appellant’s claim. Consequently the claim sued upon was barred by § 733.18(2), F.S. 1973.

Although appellant’s brief is silent regarding the applicability of § 733.18(2), F. S. 1973, during oral argument counsel suggested that allowing the filing of an amended complaint in this cause was tantamount to granting an extension of time to file suit on the claim. A somewhat similar contention was rejected by the Court in Poncier v. State, Dept. of Health & Rehab. Serv., etc., Fla.App.1973, 284 So.2d 463, for the reason that the power to extend the time for filing suit after objection to a claim rests in the circuit judge in the probate cause and not in the trial judge presiding over the claim in litigation. I agree that a fair reading of the statute requires that conclusion.

Accordingly, I concur in the affirmance of the judgment appealed from.


text:
    Jeanne FRIEDMAN, Appellant, v. Harold FRIEDMAN, Appellee.
    No. 74-983.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.

      Andrew A. Welch, Orlando, for appellant.
    Charles M. Everett, Orlando, for appel-lee.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral arguments of counsel for the respective parties, we determine that the result of numbered paragraphs 5, 6 and 7 of the final judgment of dissolution entered herein, awarding appellant the jointly owned marital domicile, awarding appellee jointly owned rental property, and directing conveyance of the parties’ interests in said properties in accordance with the aforementioned awards, was to effect a property settlement between parties to an action for dissolution. See Harder v. Harder, 264 So.2d 476 (Fla.App.1972); Kitchens v. Kitchens, 162 So.2d 539 (Fla.App.1964); Gonzalez v. Gonzalez, 156 So.2d 206 (Fla.App.1963). The trial court, under the facts and circumstances of the instant case, was without authority to effect such a property settlement. Niemann v. Niemann, 294 So.2d 415 (Fla.App. 4th 1974), cert. disch., 312 So.2d 733 (Fla.1975).

Accordingly, numbered paragraphs 5, 6 and 7 of the final judgment of dissolution are reversed and the cause is remanded for further proceedings consistent with the views herein expressed. In all other respects the final judgment of dissolution is affirmed.

Affirmed in part, reversed in part and remanded.

CROSS, OWEN and DOWNEY, JJ., concur.


text:
    Charles A. GILL, Appellant, v. Dianne Doss SHIVELY, Appellee.
    No. 74-1795.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.

      Royce D. Pipkins of Rosenblum & Pip-kins, Casselberry, for appellant.
    No appearance for appellee.
   DOWNEY, Judge.

Appellant Charles A. Gill filed a verified complaint in replevin against appellee Dianne Doss Shively for the return of a diamond engagement ring, a painting, and a bicycle. From a final judgment dismissing his complaint with prejudice because “the court determined the plaintiff had no enforceable legal right to replevy the engagement gifts” this appeal was perfected.

The complaint in question alleged the following things. On April 19, 1974, appellant gave appellee a diamond engagement ring worth approximately $3620.42. Said ring was given to appellee in contemplation of and conditioned upon the consummation of a marriage between the parties. However, on May 2, 1974, appellee advised appellant that she would not marry him because she was not ready for marriage. In addition appellee without appellant’s consent, removed from appellant’s home a painting and a man’s three-speed bicycle with a carry rack.

After an order to show cause was issued and served upon appellee a hearing was held pursuant to § 78.067, F.S. 1973, which resulted in the judgment appealed from.

If the complaint stated a good cause of action it would appear that dismissal of the complaint after the hearing held pursuant to § 78.067, F.S. 1973, was premature as the purpose of that preliminary hearing was to determine who should have possession of the property in question pending final hearing. The statute provides that at such hearing (if the defendant has not waived his right to be heard on the order to show cause in accordance with- § 78.075) the court shall determine which of the parties “is entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” § 78.067(2), F.S. 1973. (Emphasis added.)

It appears that a suit to recover an engagement ring by a disappointed donor is one of first impression in Florida. However, the decided weight of authority in other jurisdictions allows recovery by the donor if the engagement is terminated by the donee or by mutual consent of the parties. The rationale of those cases is that such presents are not absolute but are made upon the implied condition that a marriage ensue. 38 C.J.S. Gifts § 61b; See Anno: Courtship Presents — Right to Recover, 46 ALR 3d 578. The point was interestingly made by Justice Musmanno in Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A.2d 127 (1957):

“A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor,. — if the anchor of contractual performance sticks in the sands of irresolution and procrastination — the gift must be restored to the donor. A fortiori would this be true when the donee'not only refuses to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor’s rival.” 136 A.2d at 130.

We note that some jurisdictions have held their “Heart Balm” statutes, similar to § 771.01, F.S. 1973, preclude actions of any type arising out of a breach of contract to marry, while others hold that such remedial legislation only bars actions for damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry, and does not affect the rights of parties relative to gifts passing between them. It is our view that the latter interpretation of those statutes is the most consistent with their announced purpose. Pavlicic v. Vogtsberger, supra; Norman v. Burks, 93 Cal.App.2d 687, 209 P.2d 815 (1949). Cf. Comment, 3 U. of Fla.L.R., 377. Accordingly, we hold that appellant’s complaint stated a cause of action for return of the described engagement ring.

As to the other personal property we note that there is also a division of authority on a donor’s right to recover gifts (other than engagement rings) made in contemplation of marriage. However, we need not announce our views on that question because the complaint in this case does not allege that the ¡painting and the bicycle were gifts; it alleges that appellee took said property from appellant’s home without his consent. Thus, as to that property the complaint also states a good cause of action.

In view of the foregoing circumstances, the judgment dismissing appellant’s complaint with prejudice is reversed and the cause is remanded for further proceedings.

Reversed.

WALDEN, C. J., and OWEN, J., concur.


text:
    James KILLGO, Appellant, v. Bernard HOFFMAN, Appellee.
    No. 75-653.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Fromberg, Fromberg & Roth, Miami, for appellant.
    David G. Bazarsky, Louis Vernell, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant is one of the defendants in an action on a promissory note brought by ap-pellee in the Circuit Court of Dade County. The court granted summary judgment against the appellant as to liability. It is this order that is being appealed.

It is appellant’s contention that the court erred in entering summary judgment as to liability in that the plaintiff-appellee failed

to negate the existence of disputed facts on material issues.

We find merit in appellant’s contention and reverse. See Emile v. First National Bank of Miami, Fla.App.1961, 126 So.2d 305; Harrison v. McCourtney, Fla.App. 1962, 148 So.2d 53; Underwriters Insurance Company v. Sisung, Fla.App.1965, 174 So.2d 461.

Reversed.


text:
    WISCONSIN REAL ESTATE INVESTMENT TRUST, a Wisconsin common law business trust, Appellant, v. Gordon A. TAYLOR et al., Appellees.
    No. 75-516.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Ernest R. Drosdick, Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellant.
    Stephen D. Busey, Smith, Hulsey, Schwalbe, Spraker & Nichols, Jacksonville, for appellees as Trustees of Guardian Mortgage Investors.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine on this interlocutory appeal that the order entered by the trial court in no way predetermined prior to trial the defenses by appellant, Wisconsin Real Estate Investment Trust, to plaintiff’s complaint. Accordingly, the order appealed is affirmed.

Affirmed.

CROSS, OWEN and DOWNEY, JJ„ concur.


text:
    Susan WALKER, as Widow of Charles M. Walker, Deceased, Appellant, v. BEECH AIRCRAFT CORPORATION, a Foreign Corporation, et al., Appellees.
    No. 74-1652.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Nov. 3, 1975.

      Carl H. Hoffman, Miami, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl and Calvin F. David and Richard J. Thornton, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, plaintiff and cross-plaintiff in the trial court, brings this appeal from an adverse summary final judgment in which the trial court held that a wrongful death claim brought by her, as widow of the decedent, was barred by the two year statute of limitations.

Appellant’s basic contention on appeal is that her wrongful death claim brought pursuant to § 768.01, Fla.Stat., F.S.A., is not barred by the two year statute of limitations on such actions set forth in § 95.-11(6), Fla.Stat., F.S.A. As grounds for her contention, appellant submits that her claim was not barred because the statute of limitations did not begin to run until she discovered or should have discovered the engineering defect which gave rise to her cause of action against appellee, Beech Aircraft Corporation, and that Beech waived the statute of limitations by filing an indemnity cross claim against her. This latter ground, for purposes of this appeal, was abandoned based upon this Court’s ruling in the case of Horace Mann Insurance Co. v. DeMirza, Fla.App.1975, 312 So.2d 501, decided subsequent to the date this appeal was filed.

Appellees contend that the trial court did not err in entering its summary final judgment and holding as a matter of law that appellant’s cause of action was barred by the statute of limitations.

On January 18, 1970, Elliot M. Griffin, J. Paul Keen, Robert Fitton, and Charles M. Walker, appellant’s husband, were all killed when the aircraft, manufactured by Beech, in which they were flying crashed into the ground. At the time of the crash, Walker was pilot of the aircraft. Timely complaints were filed pursuant to the wrongful death statute, §§ 768.01-768.04, Fla.Stat., F.S.A., against Beech on behalf of all persons having the right to sue, with the sole exception of appellant.

Prior to these suits being filed, appellant retained counsel for the express purpose of filing a complaint against Beech. However, based upon her counsel’s evaluation of such cause of action, appellant did not file a complaint.

As a result of the litigation by Griffin, Beech, in November, 1973, filed an indemnity cross claim against appellant as ad-ministratrix of her husband’s estate. After this cross-claim was filed, appellant became active in the Griffin litigation, and on December 13, 1973, she filed her answer to Beech’s cross-claim. Included in this answer was a cross claim by appellant for the wrongful death of her husband.

The Griffin trial was held in February, 1974. Although all cross-claims were severed for separate trial, appellant was present as a defendant. After one week of trial, the Griffin litigation was settled. However, during the trial, appellant learned that a design error had been made by Beech which may have caused the aircraft to crash. As a result of this information, appellant filed an independent wrongful death action against Beech wherein fraudulent concealment was specifically alleged in avoidance of the two year statute of limitations on wrongful death actions.

Subsequently, Beech moved for summary final judgment, and on November 4, 1974, the trial court entered its summary final judgment. This judgment held that there was no genuine issue as to any material fact and that Beech was entitled to a judgment in its favor as a matter of law on appellant’s claims brought in her capacity as the widow of Charles M. Walker, deceased, because her claim in that capacity was barred by the two year statute of limitations on wrongful death actions. It is from this judgment that appellant brings this appeal.

Section 95.11(6), Fla.Stat., F.S.A., provides that an action arising on account of an act causing a wrongful death must be commenced “within two years.” However, the Florida Legislature did not specify when the statute begins to run, i.e., whether, as appellees contend, the two year period begins to run from the date of death, or whether, as appellant contends, from the time the person entitled to sue discovers or should have discovered the particular cause of death, even though the date of death is known.

It is our opinion that the intent of § 95.-11(6), Fla.Stat., F.S.A., is to limit the commencement of actions to two years from the time of their accrual. Here, appellant’s cause of action accrued at the date of her husband’s death, which fact was known to appellant as of the date of death, and the two year statute of limitations commenced to run on that date. See St. Francis Hospital v. Thompson, 1947, 159 Fla. 453, 31 So.2d 710, 174 A.L.R. 810; Grissom v. North American Aviation, Inc., 326 F.Supp. 465 (M.D.Fla.1971); and 97 A.L.R.2d 1151, 1154 (1964). Therefore, we feel, in the case sub judice, that the summary final judgment entered by the trial court holding appellant’s cause of action for wrongful death to be barred by the statute of limitations as a matter of law was correct.

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

Affirmed.


author: BOARDMAN, Judge. McNULTY, C. J.,

text:
    Yvonne SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1366 to 74-1368.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 10, 1975.

      Crockett Farnell and John Richard Hag-gitt, Nixon & Farnell, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

This is a timely appeal from a conviction after trial by jury for sale of heroin in violation of the Florida Comprehensive Drug Abuse Law. The trial court sentenced appellant to serve three years in the state penitentiary allowing credit for time served in jail awaiting trial. The jury recommended leniency.

The facts are that one Roosevelt Saf-fore, an informant for the Florida Department of Law Enforcement, was a close friend of appellant’s family. In late July or early August, 1973, Saffore took appellant to St. Petersburg where he observed her make a purchase of narcotics. On several occasions after this incident, Saffore requested appellant to take him where he could buy some “stuff” for his “old lady.” On August 15, 1973, Saffore, accompanied by appellant, drove to The Tree, a St. Pe-tersburg bar. Saffore supplied $50 for the purchase of five packets of heroin from a man (there is a dispute on whether Saf-fore or appellant gave the money to the man). Appellant gave all the packets to Saffore. It appears the seller gave appellant an additional packet. On August 24, a second uncontrolled buy was made, under similar circumstances to the August 15 incident. On this occasion appellant gave the money to the seller and Saffore gave her one packet for her habit. On September 7, 1973, a controlled buy was made (again, there is conflict in the testimony on which one of them gave the pusher the money). As on the prior buy, Saffore gave appellant one of the five packets. We are aware that it was several months later, in February, 1974, that appellant was arrested and charged in three separate in-formations with the sale of heroin on August 15, 24, and September 7, 1973.

The appellant took the witness stand and testified on her own behalf. On direct examination she admitted that she had been a drug addict in 1973. On cross-examination by the prosecutor, it was elicited that at the time she would do most anything for a hit or play, and that the buys involved herein could not have been made without her. In addition, there seems to be no doubt that appellant knew that on the occasion of each buy she would receive a portion of the narcotics purchased. There is no doubt that it was appellant, and not Saffore, who knew the identities of the three pushers and that she made the necessary arrangements for all of the buys.

The appellant contends that the trial court erred in not granting her motion for judgment of acquittal made at the conclusion of the state’s case in chief and again at the conclusion of all the evidence. Appellant’s motion for new trial was denied also. The points raised on appeal are identical to the grounds alleged in the said motion. The above rulings made by the trial court are correct. We affirm. Nevertheless, each point merits discussion which follows.

Point one assails the ruling of the trial court in failing to grant appellant’s motion for judgment of acquittal made at the conclusion of the state’s case. As we said, it was correct. It is well settled that at this juncture of the case all the facts presented and the reasonable inferences to be drawn from those facts are to be resolved in behalf of the state. See Lett v. State, Fla.App.2d, 1965, 174 So.2d 568; Byrd v. State, Fla. 1974, 297 So.2d 22, and Dancy v. State, Fla.App.3d, 1973, 284 So.2d 452. The evidence adduced in the state’s case discloses that the appellant had the predisposition to commit the offenses with which she was charged. Her activities, as mentioned above, showed that she was a principal in procuring and delivering the narcotics. See the recent case decided by the Florida Supreme Court of State v. Dent, Fla.1975, 322 So.2d 543, and Section 776.011, Florida Statutes, 1973. Further, the issue of entrapment is a jury question, unless it is determined that the evidence is so clear and convincing that as a matter of law entrapment has been conclusively established. See State v. Rouse, Fla.App. 4th, 1970, 239 So.2d 79, and State v. Liptak, Fla.1973, 277 So.2d 19. After reviewing all the evidence presented in the case, we feel that this issue should have been and was properly a jury question.

Appellant’s second point attacks the trial court’s failure to give her requested jury instruction on entrapment in its entirety. The requested instruction was:

Generally, the defense of entrapment is available to those who are instigated, induced or lured by officers or others to commit a crime which they otherwise had no intention to commit, but not to those with requisite criminal intent, who are merely furnished with the opportunity to commit crime by officers or others acting in good faith for the purpose of detecting and preventing such crime and the decency, good faith, fairness and fus- tice of the State’s conduct must be considered and if you find the State supplies the contraband the receipt of which is illegal, the State cannot be permitted to punish the one receiving it. It is within your province to judge from the evidence whether there was an entrapment by the State either by inducement or governmental misconduct or whether the requisite criminal intent existed at the time and the officer merely carried out the transaction.

The instruction given by the trial court omitted the above italicized language from the requested instruction and substituted in its place the following:

. The law of entrapment is clear, it is available as a defense when an agent of law enforcement actually implants a criminal design in the mind of the defendant to commit a crime. However, where a person has a willingness and readiness to break the law, the mere fact that an agent of law enforcement provides what appears to be the favorable opportunity, is not entrapment. . . .

The trial judge was correct in altering the requested instruction for two reasons. First, the good faith of the government’s agent was included in the instruction and; second, the evidence shows that the contraband on each occasion, as previously mentioned, was supplied by the seller and was not supplied by the government’s agent, Saffore.

Appellant urges that Rouse, supra, is authority for support of her position that she is entitled to the entire requested instruction. We disagree. As we read the cited case it requires the jury to consider, in determining the availability of the defense of entrapment, the good faith of the government’s agent, as well as the predisposition of the defendant — a two-pronged standard. The failure of the trial court to include in the instruction given the words “decency,” “fairness” and “justice” does not, in our view, constitute reversible error. The jury was properly and fairly instructed on the law applicable to the defense of entrapment.

Appellant’s point three relates to the trial court’s refusal to allow appellant’s roommate to testify as a defense witness. Her proffered testimony was to the effect, as stated by her counsel:

MR. FARNELL: . . . Her testimony would corroborate testimony of the defendant that Roosevelt was around repeatedly, she would corroborate that it took place. I don’t think other than that she could offer any probative testimony.

The proffered testimony obviously would add little to the defense of entrapment. There is ample evidence in the record by other witnesses that Saffore was around repeatedly. Under these circumstances the trial court’s refusal to allow this witness to testify was discretionary and does not constitute reversible error.

The appellant was entitled to a fair trial —she was accorded one. Appellant failed to demonstrate reversible error or misapplication of law by the trial court and, accordingly, the judgments and sentences appealed are

Affirmed.

GRIMES, J., concurs.

McNULTY, C. J., dissents with opinion.

McNULTY, C. J.,

dissents with opinion.

I dissent. While I would agree with the majority that the charge relating to entrapment, as given, sufficiently and substantially correctly states the law, I am of the view that the gross participation of the state’s undercover agent in the commission of the offenses herein was such that, as a matter of law, the requisite good faith efforts at detecting and preventing crime were negated. Indeed, when the agent gratuitously re-delivered to appellant, to satisfy her own addiction, one of the five illegally purchased packets of heroin on each of two occasions, I dare say he himself was guilty of two independent offenses of unlawful delivery of heroin having nothing to do with, and being outside the scope of, any right he may otherwise have had to engage in undercover illicit activities. At that point he was no longer providing an opportunity for appellant to vent her predisposition to commit the offense then committed; he was clearly taking advantage of her addiction by “keeping her on the hook” for the commission of any given number of future offenses of like nature. He could effect her arrest then, and as it so happened, anywhere along the line he chose.

His actions were fatally reprehensible; and the majesty and honor of the law ought not be ravished by such indecency and overreaching. The state should not be permitted knowingly to rely upon such actions to its advantage. I would reverse and order discharge of appellant.

      . “Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree . . . .” (Section 776.011, Florida Statutes, 1973).


author: HOBSON, Acting Chief Judge. BOARD MAN, Judge

text:
    Daniel C. LYTTLE, Appellant, v. STATE of Florida, Appellee.
    No. 75-283.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 7, 1975.
    James A. Gardner, Public Defender, and Steven H. Denman, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant appeals a judgment and sentence of life imprisonment for the crime of forcible rape.

The appellant asserts that he was denied his right to closing argument to which he was entitled under RCrP 3.250 which provides in part:

“[A] defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.”

The record discloses that the appellant took the stand and testified in his own behalf; however, it further shows that during the State’s case in chief the defendant introduced into evidence a note from his mother to him. The note was first mentioned by a State’s witness on direct examination. The State’s witness, after identifying the note, was asked by the prosecuting attorney, “What did the note say ?” The witness then read the note verbatim in front of the jury. The State did not introduce the note into evidence. Subsequently, on cross-examination, the defense again asked the witness to read the note, which he did, and then it was introduced into evidence as a defense exhibit.

The State contends that the defense, by introducing into evidence the note, lost the right to closing argument. They rely on Crosby v. State, 1925, 90 Fla. 381, 106 So. 741, and Grimsley v. State, Fla.App. 1st 1974, 304 So.2d 493. In both Crosby and Grimsley the evidence introduced was first brought out in the State’s case by the defense counsel on cross-examination and then introduced by the defense in the State’s case. Under these facts in both Crosby and Grimsley it was held that the defendant forfeited his right to closing argument.

In Crosby it was stated at page 746:

. . The written receipt itself was no part of the state’s evidence adduced upon cross-examination of its own witness. Because the defendant desired to put the receipt itself in evidence, and chose that particular time to do so does not constitute the receipt a part of the state’s evidence. To so regard it would utterly deprive the state of control of its own case and throw the whole trial into confusion. Cross-examination by the defendant of a state’s witness, when confined to its legitimate scope, would not deprive the defendant of the closing argument under either statute, but when the defendant, on cross-examination of a state’s witness, identifies a document theretofore unmentioned in the state’s case, and of his own motion, then places the document itself in evidence, such procedure passes entirely beyond the realm of cross-examination. The indubitable effect, then, of such procedure, is to offer testimony for the defendant. Consequently he is deprived of the closing argument, under section 6080.” (emphasis added)

In the instant case, not only did the State identify the note in its own case, but had its own witness read the note verbatim before the jury. Under these facts the note was part of the State’s evidence even though the defense introduced the note into evidence during cross-examination of the State’s witness. We think that this is a substantial distinction from Crosby and Grimsley and that the appellant was entitled to closing argument.

In view of our reversal on this point and the granting of a new trial, the other points on appeal become moot.

Reversed and remanded for a new trial.

SCHEB, J., concurs.

BOARDMAN, J., dissents with opinion.

BOARD MAN, Judge

(dissenting).

After full consideration of the record, I cannot agree with the majority opinion in reversing and remanding this cause for new trial under RCrP 3.250.

We are cognizant of and agree with the long line of Florida decisions to the effect that when a defendant’s testimony is the only testimony offered in his own, behalf that he is entitled, as a matter of substantial procedural right, to concluding1 argument before the jury. This is not such a case. The defendant not only testified in his own behalf, but, in addition, introduced into evidence an exhibit marked “Defendant’s Exhibit No. 1.” Clearly, this exhibit was not defendant’s testimony, but the testimony of another person. It was a note written to the defendant by his mother and found in the car he was driving by one of the investigating officers on the night defendant was alleged to have committed the offense with which he was charged. The said exhibit had been previously marked as “State’s Exhibit No. 6,” but not introduced into evidence, and was read to the jury by the investigating officer in the state’s case in chief without objection. It was on cross-examination of this witness that the note was introduced into evidence by defense counsel as defendant’s Exhibit No. 1, and, at his request, read to the jury. The record shows as follows:

MR. BROWN [DEFENSE COUNSEL] : I would like to introduce this in evidence.
MR. BUCKLE [ASSISTANT STATE ATTORNEY]: As a defense exhibit ?
MR. BROWN: Defense Exhibit 1.
THE COURT: It may be received. (Bracketed material supplied).

At the conclusion of all the evidence, the trial court announced it would allow each side Y2 hour for closing argument; whereupon the following colloquy took place:

MR. BROWN: I have first shot, Mr. Buckle and then me again.
THE COURT: I don’t believe so.
MR. BROWN: I have only put the defendant on.
THE COURT: You put in some evidence.
MR. BROWN: But I have only put one witness on, the defendant.

As I construe the record, defendant has done more than testify in his own behalf and, therefore, he was not entitled to the concluding argument before the jury. I believe the rationale of Crosby v. State, 1925, 90 Fla. 381, 106 So. 741, is applicable here. The defendant in Crosby, supra, did not testify in his own behalf. The court held:

It cannot be said that this receipt was “his own” (defendant’s) testimony, as the expression is used in the statute, because it is the receipt of McLean Realty Company. It was identified and offered in evidence by the defendant during the testimony of a witness other than the defendant. It is, therefore, evidence on behalf of the defendant, but not “his own testimony.”

The Crosby case was decided by our supreme court under Section 6081, Revised General Statutes, 1920, the language of which was essentially similar to the provisions of present Rule 3.250, supra.

For the above reasons, I respectfully dissent.


text:
    Charles Lewis RAY, Jr., a/k/a Charles L. Ray, Appellant, v. STATE of Florida, Appellee.
    No. 75-830.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.

      James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an appeal from judgments entered upon guilty pleas for sexual battery, attempted sexual battery and breaking and entering a dwelling house with intent to commit a felony, to wit: sexual battery, and after having entered making an assault upon a woman lawfully within the dwelling house. The appellant was sentenced to fifteen years for the sexual battery. He was given concurrent five year sentences for the other two offenses to run consecutive to the fifteen year sentence.

The judgments are affirmed. The sexual battery was a different incident than those which formed the basis for the other two charges. However, the attempted sexual battery for which the appellant was convicted was an essential element of the breaking and entering charge. Therefore, the sentence for attempted sexual battery must be vacated as violating the single transaction rule. Drayton v. State, Fla.App.2d, 1975, 320 So.2d 23; Trousdale v. State, Fla.App.2d, 1974, 287 So.2d 721.

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


text:
    Eddie EZELL, Appellant, v. Richetta EZELL, Appellee.
    No. 74-1181.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Thomas B. Duff, Miami, for appellant.
    Jepeway, Gassen & Jepeway, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of Volpe v. Volpe, Fla.App.1969, 227 So.2d 534; Green v. Green, Fla.App.1969, 228 So.2d 112; Wollman v. Wollman, Fla.App.1970, 235 So.2d 315; Walton v. Walton, Fla.App.1974, 290 So.2d 110, 112.


author: SCHEB, Judge.

text:
    Jay Walton TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 74-655.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 10, 1975.
    James A. Gardner, Public Defender, Sarasota, Harold H. Moore, Asst. Public Defender, and Richard J. Cole, II, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant, Jay Walton Taylor, was charged with the crime of rape, tried by jury, and found guilty of assault with intent to commit rape.

Appellant’s only meritorious point on appeal is whether the trial court’s refusal to give a requested jury instruction on when to disregard confessions and admissions and the weight to be given thereto was reversible error. We hold that under the circumstances in this case it was. We reverse.

The appellant, age 26, acknowledged having sex relations with the female victim, age 32, on the date and place of the alleged crime, but claimed the victim consented. The victim contended she resisted the appellant, but nevertheless, he forced her to have relations with him; and, through fear, she did not resist a second act of intercourse which followed. She refused to discuss the alleged rape with the police until persuaded to do so by her parents; however, she was seen by a police officer at the hospital a few hours after the episode and the officer did not observe any bruises or red marks on her body.

There were direct conflicts in the testimony. The victim contended she was dragged into her bedroom by appellant who had forced his way into her house. The appellant, however, contended he had seen the victim at a cocktail lounge earlier in the night and had gone to her house to visit a girl friend whom he believed to be living there, and the victim invited him in and consented to his advances. The victim acknowledged the appellant allowed her to call her girl friend upon completion of their sex relations. With the conflicts which developed in the testimony and the fact that the circumstantial evidence was somewhat weak, credibility became extremely important.

Appellant had been fully advised of his “Miranda” rights by a Sarasota Police Officer who had played football with appellant in high school and had been a friend of his for 10 years. This officer spent many hours interrogating the appellant over a four day period which culminated in the appellant allegedly making certain in-culpatory statements concerning the alleged crime. The trial judge denied appellant’s motion to suppress these statements. At trial the officer, over appellant’s objection, testified as to the appellant’s admission of having hit and hurt the victim and his further admission that he was sick and should be punished. In his testimony the appellant denied these inculpatory statements.

At the conference on instructions, appellant’s counsel requested the trial judge to give Florida Standard Jury Instruction 2.-12(i), Confessions, which provides:

A statement (admission) (confession) made out of court by a person charged with crime should be received and acted upon with great caution. It cannot be considered as evidence against him unless it was freely and voluntarily made. Any statement (admission) (confession) made because of or induced by any threat, promise or other inducement held out to the defendant by anyone was not freely and voluntarily made and should be wholly disregarded.
A statement (admission) (confession) voluntarily made should be given fair and unprejudiced consideration with due regard to the time and circumstances under which it was made, its harmony or consistency with other evidence as well as the motives shown by the evidence to have influenced the making of the statement (admission) (confession). You may believe any part of such a statement (admission) (confession) which you find to be true and reject those parts which you find to be untrue.

The trial judge included only the second paragraph of the Instruction 2.12(i) above.

We find no merit to appellant’s contention that his statements to the police officer should have been suppressed. It was error, however, for the trial court to refuse to either give the requested instruction or its equivalent as to when to disregard such admissions, as well as what weight to be given them. Harrison v. State, 1942, 149 Fla. 365, 5 So.2d 703.

In view of the circumstances surrounding appellant’s admissions to the police and the appellant’s in-court denial of such admissions, it was critical that the jury receive proper instructions as to their function in weighing these admissions. The evidence outside the admissions is contradictory and not so overwhelming as to make the failure to give the requested instruction harmless. Kinchen v. State, Fla.App.3d 1974, 297 So.2d 341.

Accordingly, the judgment and sentence of the trial court are vacated and the case is remanded to the trial court for a new trial.

GRIMES, Acting C. J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Michael SHERWOOD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-803.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Michael Sherwood, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, 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, 744, 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 failed to respond thereto, on consideration thereof upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Lushion HINES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-821.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Lushion Hines, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, 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, 744, 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 this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    James G. HEHN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-823.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    James G. Hehn, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, 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, 744, 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 this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Edwardo J. RUBI, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1151.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Edwardo J. Rubi, 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, 744, 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 failed to respond thereto, on consideration thereof upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw-is granted, and the order or judgment appealed is hereby affirmed.


text:
    Louis FIRESTER, Appellant, v. Annie FIRESTER, Appellee.
    No. 75-398.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.

      Shutts & Bowen, and Lawrence R. Metsch, Miami, for appellant.
    Yelen & Yelen, Coral Gables, for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Petitioner, Louis Firester, appeals an alimony award of $80 per week to his ex-wife, Annie Firester, entered pursuant to a dissolution of marriage judgment.

The evidence with respect to this sole issue on appeal reflects that after being married for some 30 years, the parties separated in 1967. In May of 1974, when Louis Firester petitioned for dissolution of his marriage, he had a net weekly income of $154 and weekly expenses of approximately $85. Annie Firester, who is unskilled and unemployed since her marriage, receives $224 a month for disability.

In light of the above, we have determined the alimony award of $80 per week is excessive and an award of $50 per week is more equitable, each party thereby having equal monthly incomes in excess of $400.

Accordingly, we hereby modify the alimony provision of the final judgment to read:

That the Husband, LOUIS FIRES-TER, be and he is hereby ordered to pay to the Wife, ANNIE FIRESTER, the sum of $50.00 per week as and for permanent alimony, with the first payment becoming due on Monday, March 3, 1975, and a like sum on each Monday thereafter. Payments shall be made through the office of the Clerk of the Circuit Court, P.O. Box 012387, Flagler Station, Miami, Florida, 33101.

In all other respects the judgment is affirmed.

Affirmed as modified.


text:
    Manning SMITH, Individually and as parent and natural guardian of Stephen A. Smith, a minor, Appellants, v. James REEVES et al., Appellees.
    No. 73-1136.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1975.
    As Amended on Denial of Rehearing July 25, 1975.

      David' L. Kahn and Gerald M. Walsh, of Walsh & Dolan, Fort Lauderdale, for appellants.
    Harry G. Hinckley, Jr., of Hinckley & Shores, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

This litigation began when a minor and his father sued to recover damages sustained by them as a result of an automobile accident. The individual defendant-appel-lee, James Reeves, was an employee of the defendant-appellee, The National Cash Register Company. Defendant-appellee Allstate Insurance Company is National’s insurance carrier. The question before us concerns the propriety of the dismissal with prejudice of two counts of appellants’ four count complaint.

Count III essentially charges that as Reeves’s employer, appellee National Cash Register Company agreed with Reeves that it would procure adequate automobile liability” insurance coverage on Reeves’s automobile which was used by Reeves in the course of his employment. However, National breached its agreement with Reeves by failing to obtain adequate limits of coverage, thereby depriving the appellants (as third party beneficiaries of the agreement) of adequate damages.

In Count IV appellants allege that when National entered into an agreement to furnish insurance coverage, National became an insurance agent under the Florida Insurance Code; that as such an agent National had a duty to provide adequate automobile liability insurance coverage, but as a result of its negligence National failed to inform Reeves of what adequate insurance should be to properly protect him; that as a further result appellants have sustained damages far in excess of the insurance coverage which appellee provided.

While these counts of the complaint assert a somewhat novel theory of liability, for purposes of' the motion to dismiss the agreement and the agency are admitted. Thus, it would appear plaintiffs state a third party beneficiary cause of action for breach of contract and for negligence and would be entitled to recover if they prove those allegations admitted by the motion, and the trier of fact finds the amount of insurance procured was inadequate.

The trial court sustained appellees’ motions to dismiss Counts III and IV and, upon appellants’ failure to plead further, dismissed said counts with prejudice. Thereupon, the plaintiffs below perfected this plenary appeal.

Initially we perceived a jurisdictional problem, i. e., an appeal from an order dismissing some but not all of the counts of a complaint formerly cognizable at law. However, that question now seems to be settled by Mendez v. West Flagler Family Association, Inc., Fla.1974, 303 So.2d 1, wherein the Supreme Court held that the final elimination of one count from a multi-count complaint in a case formerly cognizable at law is a final appealable order if that count alleges a distinct and separate cause of action from the remaining counts of the complaint. Thus, we are here dealing with a final appealable order.

We believe Counts III and IV sufficiently state a cause of action to survive the motion to dismiss. Accordingly, the order dismissing Counts III and IV of the appellants’ complaint is reversed with directions to reinstate said counts in the complaint.

WALDEN, C. J., DOWNEY, J., and NEWELL, EMERY, Associate Judge, concur.


text:
    Larry A. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-298.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Rehearing Denied Nov. 3, 1975.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ. •
   PER CURIAM.

Appellant was found guilty by a jury and sentenced to two concurrent two-year sentences. On appeal, the only substantial question presented is whether the trial court erred in denying appellant’s motion for a mistrial because of allegedly improper comments by the State Attorney. The appellant had made an allegation of police brutality when he took the stand but had not mentioned the allegation at any prior judicial appearance. We hold that questions and argument on this point were proper. See State v. Hines, Fla.1967, 195 So.2d 550; Reilly v. State, Fla.App.1968, 212 So.2d 796; Lebowitz v. State, Fla.App.1975, 313 So.2d 473. See also Mr. Justice Marshall’s discussion of Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), in the recent opinion of United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

Affirmed.


text:
    James LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1451.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 4, 1975.
    Koeppel, Stark, Marks & Newmark, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant was informed against for (1) unlawful sale of hashish, (2) unlawful possession of hashish, and (3) possession of controlled substance, to wit: cocaine. Count one of the above information having been dismissed, the defendant was tried by jury and found guilty on counts two and three. The trial judge then pronounced consecutive sentences of three years and five years imprisonment on counts two and three respectively. This appeal followed.

We find appellant’s first contention that hashish and cocairie are not listed as controlled substances to be devoid of merit in that this same issue previously has been •determined by this court. See Amato v. State, Fla.App.1974, 296 So.2d 609 and Fla.Stat. § 893.03 F.S.A.

Appellant secondly contends the trial court committed reversible error in denying defense counsel’s motion to suppress on the grounds that the arresting officers failed to comply with Fla.Stat. § 901.19.

We find that Fla.Stat. § 901.19 is inapplicable to the instant case as the record reflects that the arresting officers after identifying themselves entered the premises in question with the permission of the occupants and, therefore, no forcible entry was made by the police. Thus, this point of appellant must fail.

For his third point on appeal, defendant-appellant urges as reversible error the failure of the state to produce the confidential informant for pretrial discovery and testimony at trial.

With respect thereto, we note that the state, pursuant to order of court, furnished the defense with the name and last known address of the confidential informant. Further, the record is replete with evidence of the reasonable efforts by the prosecution to locate the informant and, thus, we conclude this point is not well taken.

We also considered defendant’s final contention that the court erred in imposing two separate sentences for possession of controlled substances which occurred the same time and conclude that it is lacking in merit. See Jenkins v. Wainwright, Fla.1975, 322 So.2d 477.

Accordingly, the judgment appealed herein is affirmed.

Affirmed.

      . “901.19 Right of officer to break into building
      “(1) If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without, a warrant, he may use all necessary and reasonable • force to enter any building or property where the person to be arrested is or is reasonably believed to be.”
      * * * * *