author: SMITH, Judge.

text:
    Nadio and Livio CHRISTIANI and Reserve Insurance Co., Appellants, v. John POPOVICH et al., Appellees; GOODINGS MILLION DOLLAR MIDWAY and Reserve Insurance Co., Appellants, v. John POPOVICH et al., Appellees.
    Nos. X-265, Z-113, X-266 and Z-112.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1978.
    Rehearing Denied Oct. 27, 1978.

      Harry E. Barr and Charles Timmel of Timmel, Campbell & Barr, Fort Walton Beach, for appellants.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellees Pensacola Interstate Fair, Inc. and United States Fidelity & Guaranty Co.
    G. Miles Davis of Beggs & Lane, Pensacola, for appellee Gulf Power Co.
   SMITH, Judge.

John Popovich, a fairground concessionaire, sued appellants Nadio and Livio Chris-tiani, Goodings Million Dollar Midway, Inc. (“Midway”) and their insurer, as well as appellees Pensacola Interstate Fair, Inc. (“Fair”), its insurer, and Gulf Power Company for the wrongful death of Popovich’s wife, Simone. She was electrocuted when power from Gulf Power’s overhead high-voltage line arced to the nearby Pirate’s Den, an amusement owned and built by the Christiani defendants, and thence to the Popovich trailer. Those structures were on property owned by defendant Fair, for whom defendant Midway provided and managed fair amusements and concessions, including the Christianis’ Pirate’s Den. Po-povich alleged negligence by Midway and the Christiani defendants in placing the tall Pirate’s Den dangerously near the power line; negligence by the landowner, Fair, in permitting that to be done; and negligence by Gulf Power in maintaining and operating its power line.

The pleadings were settled and the case was tried before June 12, 1975, when the Uniform Contribution Among Tortfeasors Act took effect. Chapter 75-108, Laws of Florida (1975), as amended, Section 768.31, Florida Statutes (1977). Certain of the defendants cross-claimed for indemnity against one another, each conceiving that its potential liability to plaintiff Popovich was for passive negligence only, and that the others were actively negligent. In November 1974 the court granted defendant Fair a summary judgment, finding no liability; and from that judgment timely appeals were taken by plaintiff Popovich (No. X-76) and by the indemnity cross-claimants, the Christianis and Midway (Nos. X-265 and X-266). At the December 1974 trial of plaintiff’s claim against defendants the Christianis, Midway, and Gulf Power, the court directed a verdict on liability for defendant Gulf Power. The jury returned a substantial verdict for plaintiff against defendants the Christianis and Midway. On June 18,1975, judgment was entered for plaintiff against them and for defendant Gulf Power, against all parties. The Chris-tianis and Midway appealed from the judgment against them (Nos. Z-112 and Z — 113) and plaintiff Popovich appealed from the judgment exonerating Gulf Power (No. Z-120).

While these appeals were pending, the judgment debtors satisfied plaintiff’s judgment and obtained from him a purported assignment of the right to prosecute his appeals in Nos. X-76 and Z-120. On motion by appellees Fair and Gulf Power, showing that plaintiff’s judgment had been satisfied, we held the assignment for naught and dismissed plaintiff’s appeals which the Christianis and Midway had sought to carry on in their own right.

Before us now are the consolidated appeals by the Christianis and Midway from the final summary judgment entered for defendant Fair and from the judgment entered on the directed verdict for defendant Gulf Power. Those appeals present the following issues:

First, whether the Contribution Among Tortfeasors Act, Section 768.31, is applicable although it was not effective until June 12,1975, several months after the summary judgment for Fair and after the trial which resulted, on June 18, 1975, in the entry of judgment for Gulf Power and for plaintiff against the remaining defendants. We hold that the Contribution Act is applicable.

Second, whether the judgment defendants, the Christianis and Midway, may by appeals complain of asserted error in the judgments which exonerated codefendants Fair and Gulf Power of liability to plaintiff. We hold that they may.

And third, whether there was error in the summary judgment for Fair and the directed verdict for Gulf Power. We hold that Fair did not demonstrate its nonliability to plaintiff by motion for summary judgment and that, on the evidence at trial, a jury might have found Gulf Power actionably negligent. Consequently, though the errors are harmless to plaintiff, who accepted full satisfaction of his judgment from appellants Midway and the Christianis, we reverse the judgments exonerating Fair and Gulf Power and remand for further proceedings against them on appellants’ claims for contribution.

I.

The Contribution Among Joint Tort-feasors Act is by its terms applicable “to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tortfeasors are involved and to cases-thereafter filed.” Section 768.31(7), Florida Statutes (1977). As stated above, the summary final judgment for Fair was entered November 21, 1974, and the judgment for Gulf Power and for plaintiff against appellants was entered June 18, 1975, after a December 1974 trial and verdict.

Because the litigation affecting the responsibilities between appellants and Gulf Power was pending in the trial court and the appeals affecting appellants’ claims against Fair were pending here when the Contribution Act became effective June 12, 1975, the Act is applicable to these appeals notwithstanding that contribution issues were not pleaded or otherwise raised when the case was pending before trial. Rader v. Variety Children’s Hospital, 323 So.2d 564 (Fla.1975), conformed to, 328 So.2d 506 (Fla. 3d DCA 1976), and 328 So.2d 507 (Fla. 3d DCA 1976); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 680 (Fla.1977). See also Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Shealy v. Clark Constr. Co. of Ocala, Inc., 323 So.2d 11 (Fla. 1st DCA 1975).

Section 768.31(7) applies the Contribution Act to all “pending” cases in which the rights of contribution among the joint tortfeasors are “involved.” The quoted language does not mean that the Act applies only when contribution rights were “involved” in the sense of having been raised by pleadings prior to June 12, 1975. But cf. Warn Industries v. Geist, 343 So. 2d at 47, (noting that the contribution claimant had made a motion requesting accelerated application of the Act, denied by trial court order on May 15, 1975). To so hold would attribute determinative effect to pleadings which had no basis in the law before the Contribution Act was effective. It is sufficient that this case was pending on the critical date and that inchoate contribution rights were “involved” in the sense of being affected by the outcome. This is not a case comparable to Linder v. Combustion Engineering, Inc., 342 So.2d 474, 476 (Fla.1977), in which the Supreme Court prescribed particular timetables for application of a change in the common law. This case is governed instead by the familiar rule, as stated in Linder, 342 So.2d at 475, that;

In the absence of such a determination [of prospective application], the doctrine [of “strict liability”] would be applied at the appellate level even though the question was not raised before the trial judge. We have held that on appellate review the issues must be resolved in accordance with the case law in effect at the time the appellate decision is rendered.

The only pleaded issues between the defendants in the trial court were issues of indemnity, which we do not confuse with contribution. See, e. g., Home Indemnity Co. v. Edwards, 360 So.2d 1112 (Fla. 1st DCA 1978). Appellants have not urged that there was error in the trial court’s rulings insofar as they dismissed appellants’ indemnity claims. Yet application of Section 768.31 requires consideration of whether appellants’ inchoate contribution claims were extinguished by the judgments now properly before us by timely appeals, and whether appellants may here and now complain of that effect.

II.

As long as Florida law refused its process to enforce contribution among joint tortfeasors, a defendant adjudged liable to an injured party was held not aggrieved by the same judgment’s exoneration of a code-fendant. Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Jackson v. Florida Weathermakers, Inc., 55 So.2d 575 (Fla. 1951). Denying appellate remedies to the judgment defendant, as against the exonerated codefendant, was consistent with the view that a judgment defendant is both immediately and ultimately responsible to satisfy plaintiff’s judgment fully, and it is of no legitimate interest to him that a codefendant may have been improperly exonerated.

In the only reported decision we have found directly addressing the issue since Section 768.31 became effective, the District Court of Appeal, Third District, held that the contribution statute does not change prior law in this respect; and that a judgment defendant may not appeal and assign error in the judgment’s exoneration of a codefendant. North Shore Hospital v. Martin, 344 So.2d 256 (Fla. 3d DCA 1977), cert, denied, 353 So.2d 677 (Fla.1977). As North Shore noted, we suggested a contrary result by dicta in Liberty Mutual Ins. Co. v. Curtiss, 327 So.2d 82 (Fla. 1st DCA 1976), app. dism., 341 So.2d 291 (Fla.1976). For reasons there stated, and not repeated here, we suggested that a judgment defendant is demonstrably aggrieved by the exoneration of a codefendant, and we approvingly cited Minnesota decisions at common law allowing a judgment defendant to complain on appeal of the exoneration of a codefendant. E. g., Bocchi v. Karnstedt, 238 Minn. 257, 56 N.W.2d 628 (1953). We now hold that a right to appeal is a necessary consequence of Florida’s Contribution Act, which destroys the judgment defendant’s inchoate contribution rights — rights which may mature on payment of the judgment — against an exonerated codefendant. Section 768.31(4)(f) provides:

The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their rights to contribution.

Our disagreement with North Store stems from recognition that, whether inchoate contribution claims are conventionally pleaded or not, Section 768.31(4)(f) renders a judgment for plaintiff against some but not all defendants binding on all defendants for contribution purposes. Liberty Mutual suggested by dicta that, irrespective of conventional res judicata criteria, a judgment exonerating an alleged tortfeasor of liability to plaintiff may even foreclose the inchoate contribution claim of a tortfeasor absent from that litigation, who is later sued separately and successfully by plaintiff. Florida’s Act benefits a contribution claimant only when he has discharged a common liability shared in by another tortfeasor; and there is great difficulty in supposing that an alleged joint tortfeasor, previously exonerated by a judgment, is discharged of liability by satisfaction of a later judgment against the contribution claimant. We need not here decide that issue or further discuss it except to point out again, as we did in Liberty Mutual, 327 So.2d at 87, that Section 768.31(4)(f) may require a different result from that in Anderson v. Gabrielson, 267 Minn. 176,180,126 N.W.2d 239, 242, n. 9 (1964). The Florida Act, by explicitly binding codefendants to the consequences of a judgment, may imply that absent tort-feasors are not so bound.

The issue here is simpler. We are concerned with the direct effect, not with the reverse implications, of Section 768.-31(4)(f). Unless the right to appeal an adverse judgment is to be denied defendants as a disfavored class, there are but two choices in fixing the effect of a judgment exonerating one defendant and holding another liable to plaintiff. Either the judgment must be held ineffectual to establish the contribution responsibilities between the defendants, so that they are free to litigate those issues later; or the judgment defendant must be allowed an appeal to test the correctness of the adjudication by which he lost his contribution claim against the exonerated defendant. Section 768.-31(4)(f) forecloses the first choice. We therefore adopt the second.

Even the most primitive notions of due process and equal protection of the law forbid denying judgment defendants as a class the right to appeal from judgments which adversely determine their substantial rights against exonerated codefendants. The only conceivable basis for such discriminatory treatment would be a lingering conviction that the law should deny its benefits to tortfeasors. See the analysis in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y. S.2d 382, 282 N.E.2d 288, 53 A.L.R.3d 175 (1972), cited and quoted approvingly in Lin-cenberg, supra, 318 So.2d at 389-90. That harsh and inequitable notion has been repudiated both at common law, see Lincenberg, and by the Contribution Act. If there were any doubt that judgment defendants in tort eases have now been welcomed into full citizenship, it is dispelled by realization that the ancient rule discriminated against tort-feasors, not against defendants as such. Florida’s comparative negligence rule renders every party, plaintiff and defendant alike, a tortfeasor to the extent his fault contributed to the shared injury. Counterclaims against plaintiffs are now commonplace; and, in multi-party actions involving round-robin claims, counterclaims and cross-claims, it would be odd indeed to grant certain parties appeals on issues affecting contribution, while denying such appeals to others, because of party designations in the trial court. It would be stranger still to hold that a plaintiff may prosecute an appeal from a judgment exonerating one of several defendants on his claim, but that he cannot complain on the same ground of the same judgment which held plaintiff, but not the exonerated defendant, liable to another defendant who counterclaimed and crossclaimed against both as joint tort-feasors.

North Shore, reaching a different conclusion, cited to decisions in Missouri, California, and New York, particularly May v. Bradford, 369 S.W.2d 225 (Mo.1963), Guy F. Atkinson Co. v. Consani, 223 Cal.App.2d 342, 35 Cal.Rptr. 750 (1964), and Baidach v. Togut, 7 N.Y.2d 128, 196 N.Y.S.2d 67, 164 N.E.2d 373 (1959).

We think there are significant differences between Florida’s Contribution Act and the corresponding statutes of Missouri, California, and New York on which those decisions were based. In May, plaintiff was held to have voluntarily dismissed his claim at trial against the appellee defendant, so there was no judgment for the appellee defendant which might have aggrieved the appealing judgment defendant. More important, May interpreted the Missouri statute as requiring, as a condition to the creation of inchoate contribution rights, a joint judgment against two or more defendants. The California and New York statutes applicable in Consani and Baidach also required a joint judgment. Our so distinguishing those statutes and decisions may beg the question we address here, because a judgment defendant in Missouri, California or New York could reasonably contend he was aggrieved by the trial court’s refusal to enter the necessary “joint judgment” against the codefendant and himself. It appears, however, that the courts in those jurisdictions did not deny appeals to those judgment defendants- because they were not “aggrieved” in fact. Rather, those courts were concerned with construing a statute narrowly derogating prior common law, and they simply recognized that their legislatures had strictly limited contribution to cases resulting in a “joint judgment” against defendants.

The Florida Contribution Act does not require a joint judgment against tort-feasors as a precedent condition to contribution rights. In Florida, joint liability is sufficient, as it now is by statute amendment in New York. In Florida, therefore, there is no statutory impediment to the judgment defendant contending on timely appeal that the judgment wrongfully terminated liability on the part of the exonerated codefendant. We have found no New York decision now authorizing a judgment defendant to appeal from the exoneration of a codefendant, but New York practice now includes the potential for such relief. Lincoln v. Austic, 60 A.D.2d 487, 401 N.Y.S.2d 1020,1021 (1978), not involving contribution issues, permitted appeal by a defendant who was exonerated by a special verdict finding that the alleged tortfeasor drove appellant’s automobile with his consent but that the driver was not negligent. Another action was then pending against appellant, arising from the same incident. The court, foreseeing the possibility of collateral estop-pel against appellant on the consent issue, held appellant aggrieved by and entitled to review of that finding in the judgment which exonerated him:

When ... a specific finding at trial might prejudice a party in a future proceeding by way of collateral estoppel (see e. g., Israel v. Wood Dolson Co., Inc., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97), it seems clear that a substantial and important right of said party has been adversely affected and that the interests of justice require that said party be permitted to appeal the adverse finding

The most important distinction between Florida’s Contribution Act and the statutes in effect when North Shore’s Missouri, California, and New York decisions were rendered is that none of those statutes contained a specific provision, as does Florida’s, rendering a judgment on plaintiff’s claim against multiple defendants “binding as among such defendants in determining their right to contribution.” Section 768.-31(4)(f), Florida Statutes (1977). That is a distinctive feature of the Uniform Act from which Florida’s was taken. Uniform Contribution Among Tortfeasors Act § 3(f) (1955 revision).

In states subscribing to this provision of the Uniform Act, courts have held that a judgment defendant may appeal from a judgment exonerating a codefendant. E. H. Koester Bakery Co. v. Poller, 187 Md. 324, 50 A.2d 234 (1946); Marr v. Nagel, 58 N.M. 479, 272 P.2d 681 (1954); Arkansas Louisiana Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W.2d 745 (1965); Ettin v. Ava Truck Leasing, Inc., 100 N.J.Super. 515, 242 A.2d 663 (1968), modified 53 N.J. 463, 251 A.2d 278 (1969). As the North Shore Court noted, Minnesota and West Virginia have the same rule although they do not subscribe to the Uniform Act. Hutcherson v. Slate, 105 W.Va. 184, 142 S.E. 444 (1928); Bocchi v. Karnstedt, supra. These cases reject the idea that a defendant loses nothing by a judgment in favor of a code-fendant. In Marr, the New Mexico trial court granted a judgment for one defendant notwithstanding the verdict against him. The judgment defendant appealed. The New Mexico Supreme Court held Nagel “certainly became an aggrieved party at least to the extent that the trial court in discharging the co-defendant and joint tortfeasor . . thereby deprived him, Nagel, of a possible right of contribution from the co-defendant Cohn.” 58 N.M. at 485, 272 P.2d at 685.

In states which have adopted the Uniform Act, a defendant may cross-claim or file a third party complaint for contribution, thus raising issues on which to predicate an appeal from an adverse judgment. E. g., Ark.Stat.Ann. § 34-1007 (1962); Del. Code tit. 10, § 6306 (1975). Haw.Rev.Stat. § 663-17 (1976); Overton v. Tarkington, 249 N.C. 340, 106 S.E.2d 717 (1959); Markey v. Skog, 129 N.J.Super. 192, 322 A.2d 513 (1974); Board of Ed. v. Standhardt, 80 N.M. 543, 458 P.2d 795 (1969); Falciani v. Philadelphia Transp. Co., 189 F.Supp. 203 (E.D. Pa.1960); New Amsterdam Cas. Co. v. Holmes, 435 F.2d 1232 (1st Cir. 1970) (R.I.). New York now also allows cross-claims and third party claims for contribution. Kelly v. Long Island Light Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (1972). California does not, because contribution issues are not recognized as justiciable until a judgment defendant has paid more than his share of a joint judgment. General Electric Co. v. State ex rel. Dep’t of Public Works, 32 Cal.App.3d 918, 108 Cal.Rptr. 543 (1973); Thornton v. Luce, 209 Cal.App.2d 542, 26 Cal.Rptr. 393 (1962). Consistently with the decisions in states employing the Uniform Act, and in contrast to California, Florida appellate courts have held third party claims for contribution allowable prior to entry of a plaintiffs judgment and have reversed dismissals of those claims. Lindsey v. Austin, 336 So.2d 486 (Fla. 3d DCA 1976); First Church of Christ Scientist v. City of St. Petersburg, 344 So.2d 1302 (Fla. 2d DCA 1977); Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976); Leesburg Hospital Ass’n, Inc. v. Carter, 321 So.2d 433 (Fla. 2d DCA 1975); Steak Enterprises, Inc. v. Claus, 345 So.2d 1075 (Fla. 4th DCA 1976).

The North Shore court gave some but apparently not controlling emphasis to the fact that the appealing judgment defendants did not cross-claim for contribution against the appellee defendant whom the judgment exonerated. We think the absence of a cross-claim is not determinative of the conclusive effect of a judgment exonerating a codefendant or of the judgment defendant’s right to appeal. The Florida Act makes the judgment conclusive on contribution issues irrespective of the presence or absence of cross-claims, Section 768.31(4)(f), and provides for enforcement of contribution rights between judgment defendants “by motion upon notice to all parties to the action.” Section 768.31(4)(b). If as North Shore suggests inchoate contribution claims are not justiciable by appeal until “liability has been established” by a judgment, or until one codefendant has paid more than his pro rata share of the common liability, 344 So.2d at 258, it would seem that such inchoate claims are equally unjus-ticiable at trial, and that cross-claims are inappropriate before judgment. We hold that cross-claims are not inappropriate, but also that they are not essential to the entry of a conclusive appealable judgment.

Appellants Midway and the Christianis are therefore entitled to appeal from the judgments which indebted them to plaintiff and exonerated Fair and Gulf Power. Their inchoate contribution claims were jus-ticiable on appeal as a result of the judgments entered, and they are not made more so because appellants satisfied the Popovich judgment in July 1975. Payment of the judgment made appellants’ contribution claims fully mature and enforceable, if found to be meritorious, but payment was unnecessary to perfect the appeal.

We recognize that our decision, if correct, impacts trial strategies in the defense of multi-party tort cases. Codefendants must simultaneously attempt to deny liability to plaintiff and shift responsibility to each other. If in particular cases the trial court should consider it orderly or otherwise desirable to minimize the resulting conflict within the common defense of codefend-ants, a separate and subsequent trial on the degrees of negligence by the responsible defendants is possible. But plaintiff’s verdict and judgment will identify the responsible defendants who remain to litigate their degrees of responsibility; and any judgment defendant aggrieved by that judgment’s exoneration of another must timely appeal if his inchoate contribution claim is to be preserved.

III.

On the issues affecting appellants’ contribution rights, we find that the trial court erred in directing a verdict for Gulf Power. Although the evidence was conflicting, a jury could have found that Gulf Power negligently overrode a circuit breaker and contributed to the fatal incident. The court also erred in granting summary judgment to Fair. The evidence ..showed that Fair had control over the placement of rides and structures in the midway. Whether Fair negligently allowed the Christianis to place their ride too close to the power line is an issue of fact which cannot be determined by summary judgment.

The judgments for Fair and Gulf Power are REVERSED and the cause is REMANDED for further proceedings on appellants’ contribution claims.

McCORD, C. J., and MELVIN, J., concur.

      . The Act took effect upon becoming law on June 13, 1975, but it was made applicable to cases pending “at the time of its passage.” Although “passage” of the committee substitute for S.B. 98 occurred in the House on May 28, Fla.H.R.Jour. 442 (1975), and in the Senate on May 30, Fla.S.Jour. 1018 (1975), Florida Statutes (1975) translated “passage” as June 12, 1975, the date the bill was signed by the Governor. Section 768.31(7).

      . The satisfaction of a judgment against one alleged joint tortfeasor terminates claimant’s cause of action against another. E. g., Walker v. U-Haul Co., Inc., 300 So.2d 289 (Fla. 4th DCA 1974), cert. denied, 314 So.2d 588 (Fla.1975).

      . Section 768.3 l(2)(b) provides: “The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability . . . .” The same theme is expressed in subsection (2)(d), providing that a tortfeasor settling with the claimant has no contribution right against another “whose liability for the injury or wrongful death is not extinguished by the settlement . . . .” See Liberty Mutual, 327 So.2d at 86-87.

      . Mo.Rev.Stat. § 537.060 (1969): “Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution . . . May stated, 369 S.W.2d at 228: “[T]he statutory right of contribution between joint tortfeasors does not come into existence until a joint judgment is obtained

      . Cal.Civ.Proc.Code § 875(a) (Dearing): “Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.”

      . Former N.Y.Civ.Prac.Law (Consol.) § 1401 provided: "Where a money judgment has been recovered jointly against defendants in an action for a personal injury or for property damage, each defendant who has paid more than his pro rata share shall be entitled to contribution . . .”

      . Sec. 1401, see n. 6, supra, was amended in 1974 to provide: “[Tjwo or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.”

      . North Shore, 344 So.2d at 257: “The record reflects that no cross claims were filed by any of the defendants to the action and that the plaintiff did not take an appeal from the judgment in favor of [defendant] Dr. Martin.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CAPELETTI BROTHERS, INC., a Florida Corporation, et al., Appellants, v. Shirley WILD, Appellee, and The Mansions, Ltd., Intervenor.
    No. 78-446.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Oct. 27, 1978.

      Iva W. Kay, Jr. and M. J. Kortis, Miami, for appellants.
    Brumer, Moss, Cohen & Rodgers and Burt Redlus, Miami, for appellee.
    Stephen L. Raskin, Miami, for intervenor.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

On July 11, 1977, The Mansions, Ltd., obtained a judgment in the amount of $2,500.00 plus costs against Shirley Wild, appellee herein, in the County Court in and for Dade County. On October 28, 1977, appellee Shirley Wild obtained a judgment against appellants Capeletti Brothers, Inc., and United States Fidelity and Guaranty Company in Dade County Circuit Court in the amount of $19,200.00. Appellee’s cause of action was based on negligence and the only relief sought was damages.

On October 31, 1977, November 7, 1977, and February 28, 1978, The Mansions, Ltd., in its County Court proceedings served writs of garnishment on appellants. Appellants filed an answer admitting their indebtedness to appellee by virtue of the Circuit Court judgment against them.

On February 23, 1978, the Circuit Court judge entered an order directing appellants to pay the proceeds of the judgment to appellee and ordering that “with the payment of these judgments that the garnishment actions and the liens filed herein will be null and void and dismissed with prejudice insofar as” appellants are concerned.

The Mansions, Ltd., has never been a party to the Circuit Court action between appellants and appellee.

On March 14, 1978, The Mansions, Ltd.’s, motion for summary judgment against appellants as garnishees was heard before the judge of the county court. That judge refused to take any further action in the County Court proceeding because of the Circuit Court order of February 23, 1978.

This appeal was begun by notice of interlocutory appeal filed by United States Fidelity and Guaranty Company and Capeletti Brothers, Inc., a Florida corporation. By order of this court, the motion of The Mansions, Ltd., to intervene was granted and the order further provided that The Mansions, Ltd., would be considered the party appellant. The order entered by the trial court is, in material part, as follows:

“ORDERED and ADJUDGED that the Motion be and the same is hereby denied and that Defendants are hereby ordered to pay the proceeds of the judgment and cost judgment to the Plaintiff. It is further,
“ORDERED and ADJUDGED that with the payment of these judgments that the garnishment actions and the liens filed herein will be null and void and dismissed with prejudice insofar as Defendants, UNITED STATES FIDELITY & GUARANTY COMPANY and CAPE-LETTI BROTHERS, INC., are concerned.”

It is immediately apparent that the circuit court was without jurisdiction to discharge garnishment actions in the county court. See Section 34.01, Florida Statutes (1977). This is particularly true where the garnishor was not a party in the circuit court action in which the offending order was entered. See the principle of law in West Hialeah Mfg. Co. v. City of Hialeah, 134 So.2d 505, 507 (Fla. 3d DCA 1961). The only portion of the above order over which the circuit court had jurisdiction was that portion of the order which denied a motion before it. That portion of the order is affirmed. The remainder of the order beginning with the words “and that Defendants” and concluding with “CAPELETTI BROTHERS, INC., are concerned” is stricken from the order.

The order appealed is modified and, as modified, is affirmed.

      . Neither the original appellant nor the original appellee, both of whom are considered appel-lees by virtue of the order permitting intervention, have seen fit to favor this court with a brief.


author: MILLS, Judge.

text:
    Jimmie Lee GLOVER, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. FF-366.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1978.
    Rehearing Denied Oct. 26, 1978.
    Robert Orseck and Joel D. Eaton of Pod-hurst, Orseck & Parks, Miami, Wagner, Cunningham, Vaughan & Genders, Tampa, for appellant.
    Richard W. Kreidler of Rice & Kreidler, Jacksonville, for appellee.
   MILLS, Judge.

Glover appeals from an adverse final summary judgment entered in an uninsured motorist suit he brought against Aetna, the insurance carrier of his employer. He contends that under Section 627.727(1), Florida Statutes (1971), an insurance carrier must provide uninsured motorist coverage unless written notice rejecting the coverage is given by the insured. Aetna contends that Section 627.727(1) does not require written rejection and that oral rejection is sufficient. We agree and affirm.

The president of Glover’s employer, the insured of Aetna, stated that Aetna’s agent orally offered him uninsured motorist coverage on the vehicle used by Glover at the time he was injured and he orally rejected the coverage. The agent kept an application in his file which showed that the insured chose to obtain uninsured motorist coverage on its private passenger vehicles only. The vehicle used by Glover at the time of the accident was a commercial vehicle.

Section 627.727(1) requires an insurance carrier to write uninsured motorist coverage in an amount up to the level of the liability insurance coverage selected, unless the named insured selects a lower amount or rejects uninsured motorist coverage entirely. The statute does not specify the method or means whereby an insured may reject the coverage. In this case it is undisputed that the insured was neither offered uninsured motorist coverage in writing nor rejected that coverage in writing.

Fla.Admin. Code Rule 4-28.02 requires that evidence must be maintained by an insurance carrier that uninsured motorist coverage was offered in limits up to the bodily injury limits of liability applicable to the policy.

The statute is clear and unambiguous in requiring that uninsured motorist coverage be contained in a policy, unless it is rejected by the insured. However, the statute does not require written rejection nor does it mandate rejection in a specific form.

The most that a written rejection could do in this case would be to affirm the coverage was rejected. Yet, that has been proven. There is absolutely no doubt that the insured’s president intended to and did reject uninsured motorist coverage as to the vehicle involved in the accident. That is all the statute requires.

Aetna’s agent maintained evidence, the application, which the insured’s president identified as having the correct information that he rejected uninsured motorist coverage on commercial vehicles but wanted the coverage on private passenger vehicles. This complied with the State Insurance Department’s Rule 4-28.02.

Although the courts in Davis v. United States Fidelity and Guaranty Co., 172 So.2d 485 (Fla. 1st DCA 1965), and State Farm Mutual Automobile Insurance Company v. Glover, 202 So.2d 106 (Fla. 4th DCA 1967), indicated that rejection of uninsured motorist coverage should be in writing, this was not an issue nor determinative of the issues in the cases, just gratuitous language.

The statute does require that once uninsured motorist coverage is rejected it need not be provided in a renewal policy unless the insured requests the coverage in writing. Glover argues that it is inconsistent to allow oral rejection but require written reinstatement. Perhaps, but this is the legislature’s prerogative. Ours is not the authority nor will we legislatively rewrite the statute.

We should point out that on 9 July 1978, the State Insurance Department issued Bulletin 586 which requires written rejection of uninsured motorist coverage by the insured, effective 1 October 1973. The validity of the regulation was recently upheld in Harris v. United States Fidelity and Guaranty Company, 569 F.2d 850 (5th Cir. 1978). The Bulletin was not effective when the policy in this case was written, nor have the courts of our State considered its validity.

Glover also urges that the court erred in entering the final summary judgment because genuine issues of material fact exist as to whether the president of Aetna’s insured understood the nature of his rejection of uninsured motorist coverage and whether the rejection was knowingly made. This argument is without merit because the record shows that the president intended to and did waive uninsured motorist coverage on the vehicle involved here. He knowingly made the rejection. He does not contend that he was under a mistaken impression.

The final summary judgment appealed is affirmed.

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


text:
    SCHOOL BOARD OF MARION COUNTY, Florida, Petitioner, v. DISTRICT COUNCIL # 66, INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES and the Florida Public Employees Relations Commission, Respondents.
    No. 11-405.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 28, 1978.
    John P. McKeever, of Pattillo, MacKay & McKeever, Osala, for petitioner.
    Ed Prata, William E. Powers, Jr., Joseph H. Williams, Winter Park, and Vernon Townes Grizzard, for respondents.
   PER CURIAM.

Upon the consideration of petitioner, School Board of Marion County, seeking review of a final order of the Florida Public Employees Relations Commission, and relating to the election by the majority of a certain group of employees of petitioner, School Board, designating respondent, District Council # 66, International Brotherhood of Painters and Allied Trades, as its exclusive bargaining agent, we find that said petition, with supporting documents, does not reveal any reversible error.

Accordingly, the Petition for Review is DENIED.

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


text:
    Gary Dean BARRETT, Appellant, v. Edward Thomas REED et ux., Appellees.
    No. JJ-58.

    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 26, 1978.

      Ned N. Julian, Jr. of Stenstrom, Davis & McIntosh, Sanford, for appellant.
    Dale K. Bohner of Coble, McKinnon, Rot-hert, Bohner & Godbee, Daytona Beach, for appellees.
   PER CURIAM.

An appeal from an order granting adoption of appellant’s natural son to the mother and her new husband. We find insufficient evidence of abandonment and reverse.

The record reveals that appellant made no child support payments to his son for the 17 months between the dissolution of his marriage to the mother and the time of the hearing on this petition. Testimony also established, however, that the mother had moved with the child three times during that 17 month period without informing appellant of their whereabouts. Further, appellant inquired of the mother’s relatives and they denied knowing her address.

We find that the record does not at this point support a finding of abandonment sufficient to justify a permanent severance of parental ties between appellant and his son. Neither party satisfied their mutual obligations here. While it is true that appellant was neglectful in maintaining contact with his son, it is also true that the mother failed in her duty to inform the father of changes in the child’s address so that he could maintain such contact. Therefore, without prejudice to any future action based on additional facts, we reverse the trial court’s order of adoption.

REVERSED.

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

BOOTH, J., dissents without opinion.


author: CROSS, Judge.

text:
    Kelly June BURCHETT, Petitioner, v. Dr. Franklin D. CLONTZ, Respondent.
    No. 77-2503.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Rehearing Denied Oct. 27, 1978.

      T. G. LaGrone, Orlando, for petitioner.
    John R. Godbee, Jr., of Coble, McKinnon, Rothert, Bohner & Godbee, Daytona Beach, for respondent.
   CROSS, Judge.

Kelly June Burchett seeks through petition for writ of certiorari review of an order of a judicial referee entered in a medical malpractice mediation proceeding. We grant the writ of certiorari and quash the order.

Claimant filed her medical malpractice claim on February 14, 1977. The hearing was held on September 21,1977. Petitioner urges us to quash the order upon the grounds that the mediation panel lost its jurisdiction to proceed when the hearing was not commenced within six months from the date the claim was filed. Section 768.-44, Florida Statutes, sets forth the statutory guidelines for the mediation procedure. It provides in relevant part:

“The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed.” (Emphasis added)

The proper effect to be given to these words has been set forth in Fla.R.Med.P. Rule 20.190. This rule provides:

“The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
“(c) An extension order has been entered by the judicial referee but the hearing has not been commenced within six months from the date of the filing of the claim . . . .”

Thus, it is clear that the jurisdiction of the mediation panel terminated as a matter of law six months from the filing of the claim because no hearing on the merits had been commenced at that time.

Accordingly, we grant the writ of certio-rari and quash the order of the judicial referee.

MOORE and BERANEK, JJ., concur.


author: KEHOE, Judge.

text:
    Jimmy S. BUNN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-811.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 23, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, appeals a judgment of conviction and sentence entered pursuant to a jury verdict on the charges of burglary of a dwelling and grand larceny. We reverse.

Among the points raised by appellant on appeal, his second point is disposi-tive of this appeal. In this point, appellant contends that the trial court erred in refusing to instruct the jury, as required by Florida Rule Criminal Procedure 3.390, on the manner in which certain of his admissions were to be evaluated and upon the weight to be attributed to such admissions, thereby denying him a fair trial.

Where, as here, the prosecution introduces an inculpatory statement of an accused into evidence, the accused is entitled to have the jury consider the circumstances under which the statement was given to determine the weight or lack of weight to be given to the statement. Normally, the jury must be provided with adequate instructions with which to evaluate the statement. See, e. g., Bates v. State, 78 Fla. 672, 84 So. 373 (1919); Williams v. State, 353 So.2d 588 (Fla.3d DCA 1977); and Fla. Std. Jury Instr. (Crim.) 2.13(i). Here, appellant made no specific request for such a charge at the charge conference, nor was such a charge given when the jury was charged. However, after the jury was charged and prior to the time it retired, appellant objected to the lack of such a charge and requested that one be given. His objection was overruled and the request denied.

Florida Rule Criminal Procedure 3.390(a) requires that the presiding judge shall charge the jury only upon the law of the case, i. e., a charge must be given which covers substantially the elements which the jury should evaluate in considering the credibility to be accorded to the statement. See Leach v. State, 132 So.2d 329 (Fla.1961). Although we feel that the better practice would have been for appellant to have made a request for a specific instruction at the time of the charge conference, the failure of the trial court, pursuant to appellant’s request for such an instruction prior to the time the jury retired, to give either the Florida Standard Jury Instruction (Criminal) 2.13(i) or another appropriate instruction constituted reversible error. See, e. g., Harrison v. State, 149 Fla. 365, 5 So.2d 703 (1942); Taylor v. State, 320 So.2d 428 (Fla.2d DCA 1975); and Fla.R.Crim.P. 3.390(a).

In the light of this determination, calling for reversal of the judgment and sentence appeal, it is unnecessary for us to consider the other points raised by appellant on appeal.

Reversed and remanded.


text:
    Lois A. SWAD, Appellant, v. Wilmer L. SWAD, Sr., Appellee.
    Nos. 77-1194, 77-1195.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 23, 1978.
    Joe N. Unger, Miami, for appellant. Sams, Anderson, Gerstein & Ward and Francis W. Sams, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, respondent below, brings these consolidated appeals from a final judgment and amended final judgment dissolving her marriage with appellee, petitioner below. We affirm.

Appellant’s first point on appeal is that the trial court erred in determining appellee sustained his burden of proving residency in Florida for six months preceding the filing of his petition for dissolution of marriage and assuming subject matter jurisdiction of the cause.

Where a party questions the subject matter jurisdiction of the court proceeding with a cause, the court must carefully examine the question and make a determination of its jurisdiction. In the instant case, where the question of the subject matter jurisdiction of the court was raised, the trial court made a thorough examination of the question and specifically found as follows:

“Petitioner, Wilmer L. Swad, Sr., resided in Florida for six months before filing the petition in this cause. This Court has jurisdiction of the parties and of the subject matter of this action.”

Our review of the record shows that the trial court’s finding was properly supported by the evidence. With this in mind, we feel that the trial court’s finding cannot be set aside.

Appellant contends in her second point on appeal that the trial court erred in upholding the validity of a post-nuptial separation agreement entered into between the parties.

In this regard, the trial court found as follows:

“The Separation Agreement between the parties dated August 9, 1974, which was introduced into evidence and which is attached to the Final Judgment dated May 2, 1977, was executed voluntarily after full disclosure and is for the best interest of the parties and is approved and incorporated in this Amended Final Judgment by reference and the parties are ordered to comply with it.”

Our review of the record shows that the trial court’s finding was supported by competent substantial evidence. Therefore, appellant’s second point on appeal is without merit. See, e. g., Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d DCA 1977).

Based upon our determinations set forth above, the judgments appealed are affirmed.

Affirmed.


author: PER CURIAM. BARKDULL, Judge,

text:
    Barry M. SEINFELD, Appellant, v. Roberta S. SEINFELD, Appellee.
    No. 77-1507.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 23, 1978.
    Mason & Meyerson and William John Mason, Miami, for appellant.
    Orr, Nathan & Williams, Milton M. Ferrell, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

This is an appeal by the father from an award of child support in a final judgment for dissolution of marriage. The husband, in his brief, abandoned his contest of an alimony award because, as stated therein, the wife remarried before the filing of the brief and the husband was automatically relieved of the payment of further alimony.

As acknowledged by the appellant husband, the test to be applied in review of dissolution of marriage cases is whether the judgment of the trial court is supported by competent evidence. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Based thereupon the appellant states the question presented to be: “ . . . whether under any reasonable view of the Record . . . , absent Wife’s compliance with Rule 1.611 [Fla. R.Civ.P. 1.611(a)], is there competent evidence to sustain the Chancellor’s [sic] awards?”

In our view, the record does contain competent evidence to support the amount of child support awarded. We decline to hold that the wife’s failure to file the affidavit required by the Florida Rules of Civil Procedure requires reversal of the award of child support. Admittedly, this is a serious matter and one for which a trial judge may well impose sanctions where the failure is brought to the trial judge’s attention. Appellant does not point to any claim of prejudice in the trial court by the failure to file the affidavit. A great deal of discretion is accorded the trial judge in the conduct of dissolution proceedings. See Nystrom v. Nystrom, 105 So.2d 605 (Fla.2d DCA 1958). In the present case, where the failure of the wife to file the affidavit was not made an issue in the trial court, we do not think that it is sufficient to take this case out of the application of the rule enunciated in Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Affirmed.

BARKDULL, Judge,

dissenting

I respectfully dissent. Counsel for the husband objected to the trial court going forward without the affidavit in question. The following is found in the record:

* * * * * *
“MR. MASON: May I interject an objection?
* 5ft * * * *
“THE GOU^T: State the basis of the objection.
“MR. MASON: This indicates she is going to lump some figures together to give us a total.
There would be no way to intellectually examine that answer for a violation of the Best Evidence Rule, which would be the affidavit — you know — Rule 1.611.
“THE COURT: Overruled.”
* * * * * *

I would reverse the award of child support and return the matter to the trial court for an appropriate hearing after the appellee had complied with Fla.R.Civ.P. 1.611(a), which reads in part as follows:

******
“ * * * Every application for temporary alimony, child support, attorneys’ fees or suit money shall be accompanied by an affidavit specifying the party’s financial circumstances. The affidavit shall be served at the same time that notice of hearing on the application is served. The opposing party shall make an affidavit about his financial circumstances and shall serve it before or at the hearing. If no application for a temporary award is made, the parties shall make and serve the affidavits at least 10 days before the trial if permanent alimony, child support, attorneys’ fees or suit money is sought. * * * ” [emphases added]
******
“Shall” is normally mandatory in Florida. See: Neal v. Bryant, 149 So.2d 529 (Fla. 1962); S. R. v. State, 346 So.2d 1018 (Fla. 1977).

      . The trial judge found:
      “4. The net worth of the Respondent/Husband is approximately $400,000.00. The Court notes that the testimony of the court-appointed Certified Public Accountant, Leonard Safra, does not differ materially from the testimony offered by the Respondent’s personal accountant, Murray Gottlieb, except that the latter was able to provide an opinion only as to the Respondent’s interest in his professional association and the pension fund established by the professional association. The Respondent was unable to provide any testimony concerning the Respondent’s personal net worth exclusive of the professional association and its pension fund, whereas the opinion of Mr. Safra encompassed all assets in which the Respondent has a financial interest. Further, as to those assets about which both accountants were able to render opinions, Mr. Safra estimated the Respondent’s interest in his professional association to be approximately $150,000.00 on April 7, 1977, whereas Mr. Gottlieb estimated that interest to be approximately $132,000.00 on January 31, 1977. This testimony is not irreconcilable in light of the dates on which the opinion is rendered, nor are the amounts substantially and materially different.
      “5. The financial needs of the Wife and the two minor children after considering her present income are $700.00 per week of which $467.00 is specifically determined to be child support for the parties’ two minor children, and $233.00 of which is for the support and maintenance of the Wife.
      “6. The Court finds that the Husband has the ability to pay the amount set forth in paragraph 5 herem.
      “7. The income tax returns of the parties are presently being audited or may be audited in the future.”

      . Fla.R.Civ.P. 1.611(a) reads as follows:
      “(a) Financial Statement. Every application for temporary alimony, child support, attorneys’ fees or suit money shall be accompanied by an affidavit specifying the party’s financial circumstances. The affidavit shall be served at the same time that notice of hearing on the application is served. The opposing party shall make an affidavit about his financial circumstances and shall serve it before or at the hearing. If no application for a temporary award is made, the parties shall make and serve the affidavits at least 10 days before the trial if permanent alimony, child support, attorneys’ fees or suit money is sought. If a party is not represented by an attorney, sufficient time will be allowed the party to prepare the required affidavit at hearing or trial. The affidavits shall be in substantially the form approved by the Supreme Court. On the request of either party the affidavits and any other financial information may be sealed.”


text:
    Terrence Levi SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1856.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 23, 1978.

      Pollack, Spain & O’Donnell, John H. Li-pinski, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal, after entering a plea of nolo conten-dere and reserving the point for appeal, from the trial court's denial of his motion to suppress. We affirm.

The sole point raised by appellant on appeal is that the trial court erred in denying his motion to suppress because the arresting officer lacked probable cause to arrest him. As a result of the arrest and the ensuing search of appellant, cocaine was discovered on his person, for which he was convicted for possessing a controlled substance.

The trial court’s reason for ruling on appellant’s motion as it did is shown in the record as follows:

“The Court finds that it is uncontrovert-ed that one of the officers, the first officer that testified, saw both defendants in the front seat of the automobile; that after they got out of the automobile, the second officer came up, arrived, went over to the automobile, looked in it — I don’t think there is any evidence that he stuck his head in to look in it — had an open view on the front seat in the middle of the front seat, in open view where several marijuana cigarettes. Court finds that that was probable cause to arrest both defendants for possession of marijuana, either both jointly or that one was in possession and the other one was an accessory by knowledge beforehand that having arrested them for the possession of the marijuana, that they had probable cause to seach [sic] the defendants when apparently something else was found.”

We agree with the trial court’s reasoning that, under the facts of this case, there was probable cause for the officer to arrest appellant for the possession of marijuana. Having the right to observe and to seize the contraband which was in plain view, the officer also had the right to detain the occupants, including appellant as a passenger, of the vehicle and to investigate the question of which, or if both of the occupants, had committed the offense. The lack of specific knowledge of which of the two potential culprits was last in possession of the marijuana did not require that the officer simply shrug his shoulders and allow the suspects to escape. See Piantadosi v. State, 311 So.2d 742 (Fla. 3d DCA 1975). The officer had a clear duty to enforce the criminal laws of this State which proscribe the possession of such contraband. See, e. g., United States v. Allen, 472 F.2d 145 (5th Cir. 1973); United States v. West, 460 F.2d 374 (5th Cir. 1972); and Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966).

Section 901.15, Florida Statutes (1975), provides, among other things, that a peace officer may arrest a person, without a warrant, when:

* * * * * *
“(3) He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.

In construing this and similar statutes, the courts of this State have held that police officers are not only authorized, but it is their duty, to arrest and take into custody without a warrant any person who the officer has reasonable grounds to believe, and does believe, has committed any felony. See, e. g., State v. Outten, 206 So.2d 392 (Fla.1968); State v. Simmons, 85 So.2d 879 (Fla.1956); Brown v. State, 46 So.2d 479 (Fla.1950); Jeffcoat v. State, 103 Fla. 466, 138 So. 385 (1931), and Osborne v. State, 87 Fla. 418, 100 So. 365 (1924).

We note that probable cause to arrest is not to be equated with the standards of eonclusiveness and probability required upon which a conviction must be based. See State v. Outten, 206 So.2d 392 (Fla.1968). Arrests are made upon probable cause or a reasonable ground for belief, not proof beyond a reasonable doubt. See Hall v. State, 219 So.2d 757 (Fla. 3d DCA 1969). The officer need not actually see the law being violated nor must he satisfy himself beyond any question that a felony has been committed. See Russell v. State, 266 So.2d 92 (Fla. 3d DCA 1972). Further, possession of contraband may be both joint as well as constructive. See Estevez v. State, 189 So.2d 830 (Fla. 2d DCA 1966), and Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1927). Such concepts are equally applicable to drug cases. See United States v. Saunders, 476 F.2d 5 (5th Cir. 1973); State v. Eckruth, 238 So.2d 75 (Fla.1970); Spatero v. State, 179 So.2d 873 (Fla. 2d DCA 1965), and Annot., 91 A.L.R.2d 810 (1963). These principles of law and the record in this cause support our opinion that, as the trial court correctly ruled, there was probable cause to arrest appellant for possession of marijuana. Additionally, we note that the right to search the person of a suspect under arrest, without warrant, is well recognized. See, e. g., Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and § 901.21, Fla.Stat. (1975). When, as in this case, that search reveals additional contraband, a defendant may be properly charged with and convicted of this violation. Here, pursuant to appellant’s lawful arrest, based on probable cause, a proper search of appellant was made which revealed the cocaine in his possession. For this latter offense, appellant pleaded nolo contendere and was properly convicted, adjudged guilty, and sentenced.

Appellant’s other contention in support of his point on appeal, under the facts of this case, are without merit.

Affirmed.


author: KEHOE, Judge. PEARSON, Judge

text:
    Janis FORD, Appellant, v. John LOEFFLER, Appellee.
    No. 78-325.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 23, 1978.

      Gold & Fox and Roberta Fulton Fox, Coral Gables, for appellant.
    Daniel P. Tunick, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

This is an interlocutory appeal from an order denying defendant’s motion to dismiss a complaint for declaratory judgment. In the complaint, plaintiff alleged that he was the father of defendant’s child and sought visitation rights. The mother, defendant below, denied plaintiff’s claim of paternity and argued that declaratory relief was an inappropriate remedy on these facts. We agree.

At common law, the putative father of an illegitimate child had neither rights nor obligations toward that child. When statutes were devised to protect the interests of illegitimate children, the mother alone was given the right to institute proceedings to determine paternity in order that the innocent child have the benefit of support from his father. See generally Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Clarke v. Blackburn, 151 So.2d 325 (Fla.2d DCA 1963); de Moya v. de Pena, 148 So.2d 735 (Fla.3d DCA 1963). This right has been extended to both married and unmarried women. Gammon v. Cobb, supra. And when a child is born in wedlock, the reputed father may challenge the parentage. Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944).

But there exists no precedent which gives a putative father the right to institute a cause of action to establish that he is the father of a child the mother denies is his. In the case at bar, the father seeks, by declaratory decree, to establish visitation rights with a child as yet not shown to be his natural offspring. On these facts, the issue of visitation rights is premature and must remain quiescent unless and until the child’s parentage is determined by a court with jurisdiction to make this determination.

Chapter 742 of the Florida Statutes provides the jurisdictional basis for a court to determine paternity. See especially Section 742.10, Florida Statutes [1977]. No case interpreting this legislative design has gone so far as to read into the statute an intent to give such a cause of action to a putative father.

The right to sue for a determination of paternity lies with the mother. Clarke v. Blackburn, supra. The mere institution of suit is insufficient to vest in a putative father the right to have the issue of a child’s paternity determined by declaratory judgment. Absent legislative revision of Chapter 742, a putative father is without the right to have himself declared the father of a child the mother denies is his.

Since the plaintiff cannot establish paternity, he is not entitled to visitation rights. Therefore, we reverse the order of the trial court, and direct that the cause of action shall be dismissed, with prejudice, because the plaintiff has not presented a justiciable cause of action.

Reversed with directions.

PEARSON, Judge

(dissenting).

There must be a way in the law for an unwed father to establish his rights as a father. For the courts to hold that a father may not use the procedure given a mother by Chapter 742, Florida Statutes (1977), and then to hold that because the father has not established paternity he may not have access to the courts by any other method is, I think, improper. The law must constantly be adapted to the conditions and needs of society. See the general propositions in Schwartz, the Ends of Law in a Changing World, 61 A.B.A.J. 1238 (October, 1975); and cf. the fundamental equitable maxim in First State Bank of Clermont v. Fitch, 105 Fla. 435, 141 So. 299, 301 (1932).

I would affirm the decision of the trial judge that there is an action for declaratory judgment to (1) establish paternity, and (2) to establish the rights, if any, of the natural father.

      . We are not unmindful of certain limited situations in which such a determination may be made collaterally to other proceedings. See Gammon v. Cobb, supra; 4 Fla.Jur. Bastards §§ 15, 16 (1969). However, they are not applicable to the case before us.


text:
    INDICO CORPORATION, Mayer Morganroth and Martin Kopetz, Appellants, v. GREENMAN ADVERTISING ASSOCIATES, INC., Appellee.
    No. 77-212.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Mayer Morganroth, Southfield, Mich., for appellants.
    T. Don Tenbrook and James Carry Jacobson, Hollywood, for appellee.
   PER CURIAM.

We have considered the original and supplementary briefs of counsel, the restructured record as furnished by the trial judge and find that appellants have failed to demonstrate error.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, C. J., and CROSS and LETTS, JJ., concur.

      . We relinquished jurisdiction to the trial court to restructure the record in this case in view of some of appellant’s contentions which were unsupported by the record. The trial judge without any assistance from counsel prepared a very detailed and comprehensive report of the record and testimony in the trial court which has assisted us in the resolution of the issues presented on appeal.


author: DOWNEY, Chief Judge.

text:
    Harold HESTOR, Appellant, v. STATE of Florida, Appellee.
    No. 77-893.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Rehearing Denied Oct. 25, 1978.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant was tried on a charge of tampering with a witness in violation of Section 918.14, Florida Statutes (1975), and convicted of attempted tampering with a witness.

Appellant contends that he was convicted of a non-existent crime — attempted tampering with a witness — and we agree. The statute under which appellant was charged is Section 918.14, Florida Statutes (1975), “918.14 Tampering with witnesses.'—

“(1) It is unlawful for any person, knowing that a criminal trial, an official proceeding, or an investigation by a duly constituted prosecuting authority, a law enforcement agency, a grand jury or legislative committee, or the Judicial Qualifications Commission of this state is pending, or knowing that such is about to be instituted, to endeavor or attempt to induce or otherwise cause a witness to:
“(a) Testify or inform falsely; or
“(b) Withhold any testimony, information, document, or thing.
“(2) If any person violates the provisions of this section by the use of force, deception, threat or offer of pecuniary benefit to induce any conduct described in subsection (1), the violation shall constitute a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
“(3)(a) It is unlawful for any person:
“1. To cause a witness to be placed in fear by force or threats of force;
“2. To make an assault upon any witness or informant; or
“3. To harm a witness by any unlawful act in retaliation against the said witness for anything lawfully done in the capacity of witness or informant.
“(b) Any person violating the provisions of this subsection shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

At the charge conference after the close of the evidence some confusion seemed to exist among the court and counsel as to the applicability of any lesser included offenses and whether an attempt charge was appropriate. The State takes the position on this appeal that appellant invited the charge on attempted tampering with a witness which the court gave, but we do not agree. The rule requiring an instruction on attempts provides that the court shall charge the jury on attempts to commit the offense charged if such attempt is an offense. Here the substantive crime described in Section 918.14, Florida Statutes (1975), includes by its express terms any “endeavor or attempt to induce” one to testify falsely, etc. Thus, since the elements of the crime itself include an attempt, there is no separate crime of attempted tampering with a witness. In view of the foregoing we reverse the judgment appealed from and remand the cause to the trial court with directions to discharge the appellant. 1

REVERSED AND REMANDED with directions to discharge.

ANSTEAD and LETTS, JJ., concur.

      . Fla.R.Crim.P. 3.510.

      . Other cases in which it has been held that there is no such crime as attempt to commit the substantive crime charged: Bush v. State, 359 So.2d 556 (4th DCA 1978) (attempted accessory after the fact); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), approved 340 So.2d 928 (Fla.1976) (attempted making a false report of a crime); King v. State, 317 So.2d 852 (Fla. 1st DCA 1975), aff'd 339 So.2d 172 (Fla. 1976) (attempt to utter a forgery). See also Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976).


author: BERANEK, Judge.

text:
    HUNT TRUCK SALES AND SERVICE, INC., a Florida Corporation, Appellant, v. HOLOPAK VILLAGE et al. Appellees.
    No. 77-1344.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1978.
    Rehearing Denied Oct. 26, 1978.
    Francis E. Pierce, Jr., Orlando, for appellant.
    James A. Barks, of Steed & Collins, Orlando, for appellees.
   BERANEK, Judge.

This is an appeal from an order dismissing a complaint with prejudice for failure to state a cause of action. Appellant asserts 13 points on appeal. We find that all points are without merit and affirm. The main issue was whether the plaintiff/appellant stated a cause of action for foreclosure of a mechanic’s lien. The right to foreclose the mechanic’s lien was claimed to exist through a security agreement between plaintiff/appellant and a third party. A mechanic’s lien or a prospective mechanic’s lien may be assigned in Florida. Fla.Stat. § 713.19. It is our conclusion that plaintiff/appellant’s security interest in accounts and contracts is not an assignment of a mechanic’s lien and thus is not sufficient to transfer the right to foreclose the mechanic’s lien. Therefore, the trial court correctly dismissed the complaint. The order appealed from is, therefore, affirmed.

AFFIRMED.

DAUKSCH, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Clayton A. BELL, as personal representative of the Estate of Melissa Y. Bell, Appellant, v. BAPTIST MEMORIAL HOSPITAL INC., Grace I. Sagcal and St. Paul Fire and Marine Insurance Company, Appellees.
    No. KK-120.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Rehearing Denied Oct. 27, 1978.
    Hugh M. Davenport of Smith, Davenport, Peek & Bloom, Jacksonville, for appellant.
    William M. Howell of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellees.
   PER CURIAM.

At issue here is a trial court order granting appellees a new trial after the jury returned a $450,000 verdict for appellant in a wrongful death action. Appellees admitted liability in the case and the trial was held solely to determine damages. The court granted appellees’ motion for a new trial after the rendition of the verdict on grounds that (1) the verdict was against the manifest weight of the evidence, (2) appellant’s trial counsel had made an improper “Golden Rule” argument in his closing statement, and (3) the jury had considered matters outside the record, i. e., the tax consequences of the award, in arriving at their verdict.

Appellant argues that the granting of a new trial was erroneous because the verdict did not “exceed the maximum limit of a reasonable range within which the jury may properly operate.” Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977). Appellees insist that the broad discretion given to trial judges in granting a new trial should not be disturbed on appeal. Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1975). We agree with appellant and reverse.

There is no evidence in the record here that the verdict was against the manifest weight of the evidence. To the contrary the testimony showed that appellant’s minor daughter died over a period of nine days after she was negligently injected in the spine with a toxic drug during an outpatient chemotherapy treatment for leukemia. Appellants were told immediately that nothing could be done to prevent their daughter’s death. There was ample proof of their mental pain and suffering during the 9-day period that she survived as well as after her death.

With regard to the purported “Golden Rule” argument, the record shows that appellant’s counsel’s remarks, if indeed they could be classified as “Golden Rule” argument, were timely objected to by appellees’ counsel and a sharply-worded cautionary instruction was given by the court. We also note from the trial transcript that both parties’ counsel used the abstract “you” in their closing remarks to the jury.

Similarly, the jury’s question about the tax consequences of their award was harmless under the circumstances presented here. The court instructed the jury clearly that tax matters were not in evidence and that they must decide the case solely on the evidence presented. We will not presume that the jury ignored those instructions.

In summary, the record before us, which is the same record which was before the trial judge, reveals no basis for disturbing the jury’s verdict. We therefore reverse the order granting a new trial and remand the case for reinstatement of the jury’s verdict.

REVERSED and REMANDED.

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


text:
    Goldie CANTER, Appellant, v. Jule HYMAN, Appellee.
    No. 77-2346.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Rehearing Denied Oct. 27, 1978.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Bercuson & Cahan and David Bercuson, Coral Gables, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this interlocutory appeal from the trial court’s order substituting personal representative as plaintiff and denying her motion to dismiss the cause of action pursuant to Florida Rule Civil Procedure 1.260. We reverse.

Appellant contends that the trial court erred in failing to dismiss the action pursuant to Florida Rule Civil Procedure 1.260(a)(1) because appellee failed to file an appropriate motion for substitution within 90 days after filing the suggestion of death. The pertinent portion of this rule reads as follows:

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. * * * Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.”

In this ease the suggestion of death was filed in January, 1976, and the motion for substitution was filed in October, 1977. Further the record is devoid both of any motion for extension of time within which to file a motion for substitution under Rule 1.260(a)(1) or an attempt to make a showing of any difficulty that might have delayed filing the motion for substitution. Alternatively, a request for an administrator ad litem could have been made. Under these circumstances, we believe that the trial court erred in failing to grant appellant’s motion to dismiss the action. See King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla.2d DCA 1975). Accordingly, the order appealed is reversed with directions to the trial court to dismiss the action.

Reversed with directions.


author: MILLS, Acting Chief Judge.

text:
    DUVAL COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Duval Teachers United FEA-AFT, AFL-CIO, Respondents.
    Nos. GG-456 and GG-85.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.

      Dawson A. McQuaig and William Lee Allen, Jacksonville, for petitioner.
    William E. Powers, Charles F. McClam-ma, Tallahassee, for Public Employees Relations Commission.
    William H. Maness, Jacksonville, for Du-val Teachers United.
   MILLS, Acting Chief Judge.

The Duval County School Board (Board) petitions for review of two orders of the Public Employees Relations Commission (PERC). The order of 12 May 1977 affirmed the General Counsel’s dismissal of various unfair labor practice charges brought by the Board against the Duval Teachers United (DTU); the order of 30 June 1977 dismissed a complaint issued by the General Counsel based on some of the charges brought against the DTU. The cases were consolidated for review.

The charges brought by the Board against DTU alleged:

(1) That by walking out of bargaining sessions and refusing to meet on certain dates, DTU had failed to bargain in good faith;
(2) That by voting a “no contract-no work” policy, DTU had instigated or supported a strike in violation of § 447.-501(2)(e), Florida Statutes (1975);
(3) That DTU had printed and distributed leaflets which designated Superintendent of Schools Herb Sang as a criminal and had picketed the Superintendent’s private residence;
(4) That by publically announcing the formation of “strike teams”, DTU had violated § 447.501(2)(e), F.S. (1975);
(5) That DTU had distributed a leaflet designating the Board’s co-negotiator as a “union busting” attorney;
(6) That DTU had created a “Sack Sang” program, was encouraging members of the public to sign cards in support of it, and was distributing “crisis alert” sheets and propaganda leaflets supporting the movement.

The above charges were dismissed by the General Counsel and the dismissal approved by the Chairman and one commissioner; however, allegations in paragraphs (2) and (4) were incorporated into a complaint issued by the General Counsel which alleged a violation of § 447.501(2)(a). The complaint alleged that the DTU had interfered with, restrained and coerced public employees in the exercise of rights guaranteed in § 447.301(1) and (2) by the following acts:

“a. On or about June 7,1976, the Executive Board of the Respondent recommended to the general membership the adoption of a ‘no contraet-no work’ policy and said policy was adopted by a majority of the general membership of respondent on or about June 7, 1976.
“b. Commencing on or about June 7, 1976, and continuing thereafter until or about October 15, 1976, the Respondent began actual preparation for an illegal strike by organizing strike teams, compiling lists of individuals willing to carry picket signs and assist in a strike and publicizing to the general public that it intended to strike.
“c. Commencing on or about June 7, 1976, and continuing thereafter until on or about October 15, 1976, James Geiger (President of DTU), initiated, supported and participated in said prohibited activity described above. . . . ”

In its answer to the above complaint, DTU admitted the acts alleged but denied that such activity interfered with, restrained or coerced public employees in the exercise of rights guaranteed in § 447.301(1) and (2) Florida Statutes (1975). Thus, the only issue before the hearing officer and PERC was whether the above activities constituted a violation of § 447.501(2)(a). The Commission determined that a violation had not been proved and dismissed the complaint.

The Board contends that PERC erred in dismissing the charges it brought against the DTU and in dismissing the complaint issued by the General Counsel.

Among its charges, the Board alleged that by the voting of a “no contract-no work” policy and by the formation of “strike teams”, DTU had violated § 447.-501(2)(e), Florida Statutes (1975), which states that a public employee organization, its representatives and members, are prohibited from:

“(e) Participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike.”

In its order dismissing the charge, PERC noted that under the definition of “strike” in § 447.203(6), Florida Statutes (1975), some sort of withholding of services by the employees was required. The Commission concluded that since no withholding of services occurred, there had been no violation of § 447.501(2)(e). We agree. Section 447.-501(2)(e) makes the act of participating in a strike an unfair labor practice. An organization or individual cannot participate in an activity that never occurs. However, it should be noted that the definition of “strike” was expanded by the legislature in 1977 to include “. . . any overt preparation, including, but not limited to, the establishment of strike funds with regard to the above-listed activities.” Section 447.-203(6), Florida Statutes (1977).

The Board also contends that DTU’s distribution of certain leaflets and flyers constituted an unfair labor practice. One of the flyers is a mock “wanted” poster with a picture of Superintendent Sang on it captioned “Wanted at the bargaining table by the teachers of Jacksonville”. The poster designates one of the Board’s negotiators as a “union-busting attorney”. Another flyer depicts Sang in a paper sack and is labeled “Sack Sang”. Other leaflets and cards urged the removal of Sang as superintendent, and called for a public expression of no-confidence in him. The Board asserts that the dismissal of these charges is inconsistent with the PERC order affirmed in Duval County School Board v. Florida PERC, 353 So.2d 1244 (Fla. 1st DCA 1978), finding the Board guilty of an unfair labor practice. We see no inconsistency. In that ease the Board was charged with failing to bargain in good faith. Substantial evidence was introduced to support the charge, including an interoffice memorandum written prior to the beginning of negotiations which suggested, among other things, that it would be good strategy to label the DTU’s chief negotiator as a “hired gun” or “outside hit man”. The memorandum, along with the Board’s total conduct, was considered in determining whether the intent of the Board was to avoid its obligation to bargain in good faith. The Board was not found guilty of an unlawful labor practice because it had expressed an opinion about the DTU’s chief negotiator.

In the instant case, the distribution of the literature in question is an activity protected by the First Amendment and Section 447.501(3), Florida Statutes, which states:

“Notwithstanding the provisions of subsections (1) and (2), the parties’ rights of free speech shall not be infringed, and the expression of any arguments or opinions shall not constitute, or be evidence of, an unfair employment practice or of any other violation of this part, if such expression contains no promise of benefits or threat of reprisal or force.”

Another charge that PERC dismissed alleged that the DTU was “. . . interfering with and attempting to coerce a managerial employee, Mr. Herb Sang, Superintendent . . ., as a result of his performing his duties and other activities in the interest of the Duval County School Board. . . . ” by picketing his private •residence. The General Counsel dismissed the charge on the grounds that:

“The investigation disclosed no probative evidence to indicate that the picketing of Superintendent Sang’s residence was accompanied by any verbal or written threats of violence directed at either Superintendent Sang or his family or to the performance of his managerial functions on behalf of the Charging Party but were rather manifestations of the rights of free speech and opinion guaranteed by the constitutions of the United States, State of Florida and by Section 447.501(3) of the Act.”

We do not believe that “threats of violence” are an essential ingredient of a Section 447.501(2)(a) violation. ' That Section prohibits “. . . interfering with, restraining, or coercing managerial employees . . .”, but does not indicate that such interference or coercion must be accompanied by threats of violence. Further, it is clear that not all picketing, even if peaceful, is protected by the Constitution as an expression of free speech. Picketing involves elements of both conduct and speech. It is something more than and different than simple communication. Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950).

“While ‘the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution,’ Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 . patrolling is, of course, conduct, not speech, and therefore is not directly protected by the First Amendment.” NLRB v. Fruit and Vegetable Packers and Warehousemen, Local 760, 377 U.S. 58, 77, 84 S.Ct. 1063, 1073, 12 L.Ed. 129 (1964), (Black, J., concurring).

Numerous cases under the National Labor Relations Act have held that peaceful picketing, which has as its purpose the subjecting of secondary employers and employees to pressure forbidden under 29 U.S.C. § 158(b)(4), is an unfair labor practice and is not protected by the First Amendment. International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299 (1951). The picketing of a private residence presents a particularly unique situation because such conduct infringes on the occupants’ right to privacy. The well-worn phrase, a man’s home is his castle, has not lost its vitality. As was stated by Justice Black in Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (Black, J., concurring):

“Were the authority of government so trifling as to permit anyone with a complaint to have the vast power to do anything he pleased, wherever he pleased, and whenever he pleased, our customs and our habits of conduct would all be wiped out . . . . And perhaps worse than all other changes, homes, the sacred retreat to which families repair for their privacy and their daily way of living, would have their doors thrown open to all . . . . I believe that our Constitution did not create a government with such monumental weakness. Speech and press are, of course, to be free, so that public matters can be discussed with impunity. But picketing and demonstrating can be regulated like other conduct of men. I believe that the homes of men, sometimes the last citadel of the tired, the weary, and the sick, can be protected by government from noisy, marching, tramping, threatening picketers and demonstrators bent on filling the minds of men, women, and children with fears of the unknown.”

The General Counsel’s dismissal of the Board’s charge relating to picketing the Superintendent’s residence cannot be affirmed. The charge is reinstated, and the cause reversed and remanded for further proceedings on such charge. The question remanded to PERC is whether the picketing of the superintendent’s residence was, in the circumstances, unlawful interference, restraint, or coercion, though it was peaceful in the sense of nonviolent. To this factual issue the General Counsel’s order and the sustaining order of PERC did not speak, or they spoke erroneously on a question of law. Section 120.68(9). Because picketing is not pure speech expressing “arguments or opinions”, Section 447.501(3), picketing is not free of the restraints imposed by Section 447.501(1). Like other picketing for impermissible reasons, Hughes v. Superior Court, supra, picketing with the purpose or effect of interference, restraint, or coercion is not protected.

We affirm PERC’s dismissal of the complaint issued by the General Counsel. A hearing on the complaint was waived, and the stipulated facts were not sufficient to prove a violation of Section 447.501(2)(a).

Affirmed in part, reversed in part.

SMITH and ERVIN, JJ., concur.


text:
    The COMMONWEALTH INSURANCE COMPANY, Appellant, v. AUTOMOBILE DEALERS INSURANCE SERVICES, INC., Appellee.
    No. 77-1233.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Oct. 24, 1978.
    Horton, Perse & Ginsberg and Edward A. Perse; Ciravolo & Feldman, Miami, for appellant.
    Underwood, Gillis, Karcher, Reinert & Gordon and David D. Karcher, Miami, for appellee.
    Before PEARSON, HENDRY  and KE-HOE, JJ.

       Judge Hendry participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

The Commonwealth Insurance Company was the plaintiff and counterclaim defendant in the trial court. Commonwealth sued the appellee Automobile Dealers Insurance Services, Inc., for unpaid insurance policy premiums. Automobile Dealers counterclaimed for damages caused by Commonwealth’s cancellation of policies without giving the sixty-day notice provided in the agreement between Commonwealth and Automobile Dealers. After a trial before the court without a jury, the trial judge entered final judgment ($80,000.00) for Commonwealth on its complaint, and for Automobile Dealers ($38,960.00) on its counterclaim.

As points on this appeal, Commonwealth argues that the judgment for Automobile Dealers must be reversed because (1) there was no proper proof of damages, and (2) there was an insufficient proof of a breach of the agreement. In review of these broad points, we have examined the record in the light of the briefs and oral argument and find that error has not been shown. Cf. Banks Real Estate Corporation v. Gordon, 353 So.2d 859 (Fla. 3d DCA 1977).

Affirmed.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. Marta AVELLANEDA, Appellee.
    No. 78-365.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Oct. 27, 1978.

      Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellant.
    West, Friesner, Goldman & Hatfield and Murray Goldman and Thomas Schwartz, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By a third amended complaint, the appel-lee, Marta Avellaneda, sued Florida Insurance Guaranty Association, Inc. [FIGA], seeking recovery of personal injury protection benefits. At the times involved, appel-lee was the registered owner of a certain Ford automobile possessed and used by her son-in-law, Louis Camayd. He had applied for and obtained a policy of insurance thereon from Manchester Insurance & Indemnity Company, on which he was the named insured. The application made therefor by him did not reveal that Marta Avellaneda was the owner. A space provided in the application for a statement by the applicant as to the acquisition and ownership of the vehicle was left blank.

While the policy was in effect, appellee was injured in an automobile accident when riding as a passenger in an automobile which was uninsured, and of which she was not the owner. Because of Manchester’s insolvency, the action was filed against FIGA. The defendant answered, disclaiming liability, contending the appellee (owner) was not covered by the Manchester policy. A motion of Avellaneda for summary judgment holding she was covered by the policy was granted, and the defendant appealed.

Both parties rely on Section 627.736, Florida Statutes (1975). Appellee claims coverage because of her ownership of the insured car, by virtue of subsection (4)(d)(l) which provides that the insurer of the owner of a motor vehicle shall pay PIP benefits for accidental bodily injury sustained in this state by the owner while occupying a motor vehicle if injury is caused by physical contact with a motor vehicle. However, the policy involved here was not based on an application by the owner. It was not issued to the owner, and the insured named therein was not the owner.

As showing non-coverage, the appellant relies on subsection 1 of section 627.736, which, in listing those entitled to receive PIP benefits, does not include “owner.” It lists “named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle.” Appellant points out that the appellee-owner of the insured vehicle was not within those listed categories.

The problem presented in this case was whether this policy was issued to the owner of the vehicle, and if not, then whether issuance of the policy on an application by her son-in-law which failed to disclose ap-pellee’s ownership was misleading to the insurer, or whether, by issuing the policy without determining ownership the insurer was negligent so as to make it liable for coverage of the owner. In our opinion, those matters involved issues which properly were not subject to determination on motion for summary judgment.

Accordingly, the summary judgment is reversed and the cause is remanded for further proceedings.


text:
    LOS MOLINOS, INC., et al., Appellants, v. HOUSING DEVELOPMENT CORPORATION of Florida, Appellee.
    No. 78-912.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Oct. 27, 1978.
    Franklin, Ullman, Kinder & Entin, North Miami Beach, and Ronald A. Dion, Miami, for appellants.
    Williams, Salomon, Kanner, Damien, Weissler & Brooks and Lewis M. Kanner, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The order dated April 12, 1978, which is appealed from is affirmed, with the exception that as to intervenor-appellants Mark Harris and Sari-Lynn Harris the order is modified so that the ten day period within which the order provided that the said tenant-optionees should either exercise their option to purchase as originally contracted for, or terminate the lease-option agreement and vacate, shall be the period of ten days from the date that the mandate of this court is filed in the office of the clerk of the circuit court.

It is so ordered.


text:
    CHALFONTE CONDOMINIUM APARTMENT ASSOCIATION, INC., et al., Appellants, v. CHALFONTE DEVELOPMENT CORPORATION, etc., et al., Appellees.
    No. 77-2691.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.

      Mark B. Schorr and Jeffrey E. Streitfeld of Becker, Poliakoff & Sachs, Fort Lauder-dale, for appellants.
    John K. Aurell and William C. Crenshaw of Mahoney, Had'iow & Adams, Miami, for appellees-Builders Investment Group.
    Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees-Chalfonte Development Corp. and David and Gail Gilman.
   DOWNEY, Chief Judge.

While this suit attacking, among other things, a long term recreational lease was pending, appellants have been paying the rental payments on the recreational lease into the Registry of the Court pursuant to Section 711.63(4), Florida Statutes (1975) (now 718.401(4)), Florida Statutes (1976). Appellees Gilmans and Builders Investment Group obtained an order from the trial court allowing disbursement from the funds in the Court registry for the purpose of making mortgage payments on a mortgage encumbering the property involved in the recreational lease. It is this order which is being appealed.

We have considered appellants’ argument the thrust of which is that, since the mortgage in question initially covered lands other than those covered by recreational lease, the trial court erred in not apportioning the amount to be disbursed for the mortgage payments. The only land presently covered by the mortgage is the land covered by the recreational lease. We find that appellants have not demonstrated error. The rationale of Palm-Aire Country Club Condominium Association No. 2., Inc. v. F. P. A. Corporation, 357 So.2d 249 (Fla. 4th DCA 1978), supports the trial judge’s ruling.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Betty J. ARMSTRONG, Appellee.
    No. 77-2063.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
   SCHEB, Judge.

The state appeals from the trial court’s order dismissing the grand larceny charge against Betty J. Armstrong. We reverse.

Appellee Betty J. Armstrong and her co-defendant, Johnny Lee Armstrong, were charged by information with larceny of over one hundred dollars worth of cigarettes from Winn Dixie Stores, Inc. on September 28, 1977. Mr. Armstrong filed a motion to dismiss pursuant to Fla.R.Crim.P. 3.190(c)(4). At the hearing the parties agreed that Ms. Armstrong could join in the motion.

From the motion it appeared the allegedly stolen cigarettes had not been retained for use as evidence. The trial judge reasoned that the nonavailability of the cigarettes would infringe upon Ms. Armstrong’s Sixth Amendment right of confrontation and dismissed the charges.

The confrontation provision of the Sixth Amendment is by its terms restricted to “witnesses” and does not encompass physical evidence as well. United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. 1976). The trial judge therefore erred in his dismissal of the charges against Ms. Armstrong on the ground that the allegedly stolen cigarettes were not available to be used as evidence at trial.

We do not here deal with the question of whether appellee Armstrong has been deprived of her right to due process, which guarantees a defendant access to relevant and material evidence necessary for the preparation of his defense. See United States v. Herndon, supra. This issue was not raised in the trial court nor argued before this court.

The order of dismissal is vacated and the cause remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . In the motion Mr. Armstrong essentially disassociated himself from appellee’s activities who, one infers from the motion, did have possession of the cigarettes.


text:
    Otto CHAVARRIA, Appellant, v. STATE of Florida, Appellee.
    No. 78-679.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and A. Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Otto Chavarria, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction. However, we remand the case for the trial court to correct the Uniform Commitment to Custody form. The phrase “Jail Credit Since 10/27/78” should be changed to read “Jail Credit Since 10/27/77.” Appellant need not be present for this purpose.

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


text:
    Joseph M. WORTH, M. D., Petitioner, and Morton F. Plant Hospital Association, Inc., Intervenor, v. John K. HENCH and Elizabeth C. Hench, Respondents.
    No. 78-896.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 1978.
    John W. Williams and Jeffrey R. Fuller of Williams, Brasfield & Wertz, St. Peters-burg, for petitioner.
    Thomas Saieva of Woodworth and Saieva, P. A., St. Petersburg, for interve-nor.
    George J. Felos of Law Offices of John N. Samaha, St. Petersburg, for respondents.
   PER CURIAM.

Denied without prejudice to the rights of petitioner and intervenor to seek review of the matters argued herein by way of appeal from final judgment. See Whiteside v. Johnson, 351 So.2d 759 (Fla.2d DCA 1977).

GRIMES, C. J., and HOBSON and RYDER, JJ., concur.