author: WALDEN, Chief Judge.

text:
    Kingdon R. WESTERLIND, Appellant, v. Arthur M. DEHON and Betty Kay Dehon, his wife, Appellees.
    No. 75-19.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 17, 1976.

      Philip H. Reid, Jr., Palm Beach, and James J. Butler, Stuart, for appellant.
    Gerald S. James, Fort Pierce, for appel-lees.
   WALDEN, Chief Judge.

Sellers brought a claim against purchaser for breach of contract in a real estate purchase. Purchaser appeals the resulting final judgment directing him to forfeit a real estate deposit, pay interest on that deposit, and pay attorney’s fees and costs. We reverse.

• Purchaser entered into a contract for a parcel of land. The contract contained the express provision:

“That this project is located within the city limits of the City of Stuart and is not under the jurisdictional control of the Martin County government.”

Purchaser testified he made the contract based on the understanding — and the express provision — that the property was so located. He refused to close the transaction when it became known to him that the annexation of certain property by the City of Stuart (including the property under contract) was being contested in court at the time the contract was signed.

The theories of marketability, fraud, misrepresentation and mistake, have all been represented to us on this appeal. We find there was no fraud or misrepresentation. It is conceded that neither party knew' of the existing litigation when the contract was made. There is no marketability problem — the land is fully saleable. There can be no comfort in the theory of mistake — the property is presently covered by an ordinance that purports to annex the property to the City of Stuart. The problem is whether the purchaser had the right to object to the property tendered to him. We hold that he did have such right. Purchaser would not have contracted to purchase the land unless it was lawfully in the City of Stuart; he did not intend to contract to purchase into the lawsuit then pending. The purchaser here desired Stuart property because of its more lenient zoning and planning laws — Martin County laws being more stringent.

A purchaser can not be made to accept the property when he may have to litigate to obtain that property in the condition for which he contracted. See, 8A Thompson on Real Property, Vendor and Purchaser, § 4482 (1968):

“A title is ‘unmarketable’ when for the purchaser to accept the title proffered would lay him open to a fair probability of vexatious litigation with the possibility of severe loss.” Id. at 490.

It is of no use for seller to claim that purchaser, who wished to develop the property, might have availed himself of the Stuart laws (and begun construction) because the purchaser may then have been subject to litigation and possible serious losses (especially since he was apprised of the attack on the Stuart annexation) should the contest against annexation be successful and the more stringent Martin County laws attach. Purchaser’s counsel had advised him that it was more than likely that the Stuart ordinance would be found invalid.

In 77 Am.Jur.2d, Vendor and Purchaser § 211 (1975), it is stated that a court of equity may refuse to require a purchaser who has contracted for a title without encumbrances, to accept the title where doubt exists as to whether or not it is subject to restrictive covenants. Analogously, this purchaser, who contracted for land with Stuart zoning laws, did not breach the contract where there was doubt, because of existing litigation, as to whether or not that property was instead subject to Martin County zoning , regulations. See, 8A Thompson on Real Property, Vendor and Purchaser § 4484, supra:

“It is possible for a title to be ‘marketable’ and yet contain such collateral infirmities as would deny specific performance to the vendor.” Id. at 504.

and 33 Fla.Jur., Vendor and Purchaser § 65 (1960):

“If a contract for the sale of land expressly stipulates as to the character of the title to be provided by the vendor, such stipulation is controlling, and if the title tendered does not conform to it, it is immaterial that it may in fact be a good or marketable title.” Id. at 425.

The problem can be analogized to an attempted property sale in which the seller’s title is being challenged, or to an attempted property sale where the property (or portions of it) is being condemned. 33 Fla. Jur., Vendor and Purchaser § 76 (1960):

“Where the vendor has the obligation to convey a good title free and clear of all encumbrances, the pendency of condemnation proceedings at the time of making the contract constitutes a defect or encumbrance in the vendor’s title that entitles the purchaser to reject it.” Id. at 433.

See, 8A Thompson on Real Property, Vendor and Purchaser '§ 4484, supra.

See, Monroe Landholding Corp. v. Maier, 223 So.2d 377 (Fla.App.2d 1969), in which a purchaser and seller executed a contract for real property without knowing that the property was going to be taken by the state. The Second District noted:

“The time for Monroe to have made some move to rget off the deal was at the time it learned of the Road Department’s definite intention to acquire the property and close off the adjacent highway frontage, or a reasonable time thereafter. But when the buyer, in effect, confirmed and ratified the purchase by doing nothing except to obtain extension of time to close, he cannot thereafter be heard to recant and disavow the written agreement.” (Emphasis supplied.) Id. at 379.

This purchaser made his move to “get off” the deal by refusing to close when he discovered the existing litigation jeopardizing his right to property in Stuart. Purchaser exercised his right to reject the property made unacceptable by the encumbrance of the pending lawsuit which might have resulted in his obtaining property subject to different restrictions than for which he contracted. The provision for property to be in Stuart was a dependent covenant and seller has breached by not being able to tender at closing the Stuart property he contracted to sell, free from the question as to its governmental location.

The facts in the case justify purchaser’s rejection of the property before closing. Therefore, the appealed judgment is reversed and remanded for further proceedings consistent herewith.

Reversed and remanded.

DOWNEY, J., and McCAULEY, JAMES A., Associate Judge, concur.

      . We do not face the problem of what would have occurred if the annexation suit had arisen after the signing of the contract. That would raise the issue of risks respectively assumed or retained by buyer or seller as to real property after the execution of a buy and sell contract. See 7 Williston on Contracts, Contracts for the sale of Land . . . , Chap. 32, p. 699 n. 11, (1963).

      . We are careful to note, however, that the property here is clearly marketable, and the defect in the tendered property results from the provision in the contract that the land be in Stuart. The land’s not being so located, the property is personally and legally unsatisfactory to defendant-purchaser. The references here to unmarketable titles are for the purpose of analogy only.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SANTA ROSA COUNTY, Florida, a political subdivision of the State of Florida, Appellant (Plaintiff), v. ESCAMBIA COUNTY, Florida, and Santa Rosa Island Authority, et al., Appellee (Defendant).
    No. Z-313.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    T. Sol Johnson, J. David Holder and A. L. Johnson of Johnson, Johnson & Green, Milton, for appellant.
    Jack H. Greenhut and W. Spencer Mitchem, Pensacola, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the final judgment is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: GRIMES, Judge.

text:
    SARASOTA KENNEL CLUB, INC., Appellant, v. John Randolph CALHOUN et al., Appellees.
    Nos. 75-735 and 75-736.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
    Rehearing Denied Feb. 13, 1976.
    Richard E. Nelson, Nelson, Hesse, Cyril & Weber, Sarasota, for appellant.
    Clyde H. Wilson, Wilson, Wilson & O’Connell, Sarasota, for appellees.
   GRIMES, Judge.

A stockholders’ derivative suit involving Sarasota Kennel Club, Inc. was settled pursuant to a consent judgment which placed certain obligations upon the management of the corporation. Several years later, one of the original plaintiff-minority stockholders complained of violations of the judgment and petitioned the court for enforcement. This is an interlocutory appeal by the corporation from the court’s “Order on Motion to Require Compliance with Judgment.”

The original complaint alleged many improprieties on the part of the directors and the majority stockholders. The litigation was protracted. The “Judgment Approving Settlement Agreement,” which comprised twelve pages, provided in part:

‡ ij: sK * * *
“5. The Corporation, as Lessee, and Jerry Collins, as Lessor, shall enter into a ground lease for the land on which the Corporation’s race track is located . . . with the following provisions:
jfi % ij< ;jí % %
(b)The rental shall he paid annually and shall be based upon the net profits of the Corporation (before income taxes and such rent) and shall be at the rate of 20% of such net profits of the year 1968 and shall decrease at the rate of 1% per year thereafter (e.g. 19% of the net profits for 1969) until the percentage reaches 10%, which shall thereafter be the rate of rental; provided, however, that such rent shall never exceed $250,000 per year.
>(i % ;}c
“9. All net cash available at the end of any fiscal year of the Corporation shall be declared and paid as dividends to stockholders of the Corporation. ‘Net cash’, as herein used, means all cash of the Corporation on hand and in banks, minus the following:
(a) A reserve of $350,000 to be used to construct a clubhouse and to remodel and improve the facilities at the Corporation’s race track; in the event, however, that said $350,000, or any portion thereof, has not been expended for such improvements within 18 months from the date hereof, said sum (or the portion remaining) shall be forthwith paid to the stockholders as dividends.
(b) After the expiration of 18 months, a reasonable reserve for future replacements, additions, expansions and improvements reasonably necessary to conduct and carry on the business of the Corporation.
(c) A reasonable reserve for operating expenses.
(d) The amount of cash required to meet liabilities, other than operating expenses, to become due within one year’s time.
“In keeping with this policy and as additional assurances therefor, it is specifically ordered that:
jfi % ‡ ‡ íjc * •
(c)The Corporation shall make no loans of any of its funds, except that loans may be made to employees (other than officers, directors, or stockholders) not exceeding $1,000 in amount to any one employee.
“It is the intent of this paragraph that the policy of the Corporation in regard to paying dividends to its stockholders be a liberal one.” (Emphasis added.)

The judgment provided for the court to retain jurisdiction of the action for the entry of further orders and judgments, including orders for enforcement.

Following the taking of testimony, the court held the corporation in contempt for failure to comply with the judgment. The court found, that the corporation had violated the agreement in that it:

“(a) Has made loans to parties who were its officers, directors or stockholders.
“(b) Has also failed to comply with paragraph 9 of said Judgment requiring the pay out, as dividends, to stockholders of net cash remaining after allocation of certain reserves, and Respondent, SARASOTA KENNEL CLUB, INC., has not come within the provisions of the portion of paragraph 9, aforesaid, which provides that, 'It is the intent of this paragraph that the policy of the Corporation in regard to paying dividends to its stockholders be a liberal one.’
“(c) Has entered into a ground lease with Jerry Collins under paragraph 5 of the Judgment, aforesaid, which is in derogation of said paragraph 5 and of other provisions of the Judgment, in that it authorizes prepayment of rent by Respondent to Jerry Collins, aforesaid.”

The corporation was ordered to immediately pay an extraordinary dividend of $50 per share and to pay in the future a minimum of 50% of its annual net earnings as dividends pending further order of the court. Should any reserves be created, the corporation was directed to specifically carry them on the corporate books. The corporation was also ordered to pay the reasonable fees of the petitioner’s attorney and certified public accountant. The corporation was permitted to purge itself of the contempt by complying with the terms of the order.

The corporation primarily contends that the evidence does not support the court’s findings of violations of the terms of the consent judgment and that the effect of the order was to modify rather than to enforce the judgment. On the question of sufficiency, we have concluded that there is competent substantial evidence to support the conclusion that the judgment was violated in each of the enumerated particulars. However, we believe that in mandating a future dividend policy, the court impermissibly modified rather than enforced the judgment.

Addressing the findings in turn, the record reflects that from time to time the corporation’s controlling stockholders, Jerry Collins and Jack Collins, withdrew monies from the corporation which were not salaries. Considering the scope of the company’s operation, these were not large amounts of money, and they will presumably be repaid. Nevertheless, the consent judgment prohibits withdrawals of this nature. The corporation’s attempt to characterize them as advances which are not within the judgment proscription against loans because they were not evidenced by promissory notes is patently spurious.

The corporation has operated very profitably since the entry of the consent judgment in 1968. The after-tax earnings of the corporation for the years 1968-1973 compared with the dividends declared for the same years are set forth below:

DATE EARNINGS DIVIDENDS

1968 $288,774 $266,995

1969 430,141 80,660

1970 529,593 265,290

1971 469,056 265,290

1972 584,156 265,290

1973 775,411 275,902

The retained earnings of the corporation have increased from $199,087 in 1968 to $2,266,923 in 1974. On September 30, 1974, the corporation had cash, certificates of deposit and other liquid funds of approximately $2,740,000.

The corporation attempted to justify its failure to pay out in dividends the amount of “net cash” as defined in paragraph 9 by saying that the funds were being held back for the purpose of building a new grandstand. There is no doubt that the consent judgment contemplated reasonable reserves for future replacements. However, no reserve for this purpose was ever established in the books of the corporation. In fairness to the corporation’s position, there were some references to the construction of the proposed grandstand in the minutes of the stockholders’ and directors’ meetings. Thus, the minutes of the meeting of directors held on December 6, 1971, provided :

“The President then stated that the new Clubhouse had, during the 1971 racing season, proven to be a tremendously useful addition to the corporation’s racing plant and had contributed materially to the highly successful 1971 racing season. He stated that, however, the attractiveness and utility of the new Clubhouse emphasized the need, which was becoming imminent, to rebuild and upgrade the portion of the corporation’s grand stand not encompassed within the new Clubhouse. He said that it was the practice of other dog tracks in Florida to set aside, annually, one-half of net profits after taxes as a fund for upgrading plant facilities. He said that, in his opinion, Sarasota Kennel Club, Inc. should immediately undertake such a program for funding improvement of its own racing facilities. He estimated that to rebuild and upgrade the old grand stands would require an expenditure of between one million and one million five hundred thousand dollars. After full discussion, upon motion made and seconded, it was unanimously
“RESOLVED, that the officers of this corporation be and they hereby are, authorized, empowered, and directed to give consideration to, and report to this Board of Directors, a plan for the annual setting aside of funds of the corporation sufficient in amount to enable the corporation, within the next two years, to undertake a far-reaching program of rebuilding and upgrading the old grand stand at the racing plant of Sarasota Kennel Club, Inc.”

There are further references to the subject in the minutes of some of the subsequent meetings, but it is evident that the corporation never formulated a definite plan for the establishment of a specific reserve with which to rebuild the grandstand.

The corporation presented the testimony of a banker and an accountant to the effect that the accumulation of funds out of earnings was an acceptable corporate method of financing capital improvements. Thus, the corporation contends that the directors were acting within their proper discretion in determining not to declare more dividends. These are sound corporate principles when one is dealing with a corporation which is not subject to the obligations of a consent judgment. However, in this case, the discretion of the corporate directors was sharply limited by the provisions of the judgment. In light of the company’s earnings, the dividend policy could hardly be said to have been “a liberal one.” Even if the directors had followed the suggestion of their own resolution and set aside one-half of the net profits after taxes in order to build the grandstand, there would still have been money available to pay more dividends. The record amply supports the conclusion that the corporation, through its directors and majority stockholders, violated the letter and spirit of the consent judgment concerning the declaration of dividends.

The third violation which was found by the court pertained to prepayments of rent on the property leased from Jerry Collins. The consent judgment contemplated the lease of the property and specifically provided that the rent should be based upon a percentage of the net profits of the corporation. The judgment specifies that the rent shall be paid annually, which necessarily requires that the profits for a given year first be computed in order to determine the amount of the rent. While the ground lease entered into by the corporation and Collins gives Collins the option to obtain an advance on. the rent not to exceed 75% of the rent paid for the preceding year, the consent judgment contains no such provision. The record reflects that advance rentals were paid to Collins on several occasions. Since the corporation ultimately made profits which warranted the payment of rentals in excess of the amount of advances, apparently the corporation did not actually lose any money. Be that as it may, the payment of advance rentals was not authorized by the consent judgment and must be considered to be a violation of its terms.

Having concluded that the evidence supports the court’s findings, we must now determine whether the effect of the order was to enforce or modify the consent judgment. While there are certain circumstances under which a consent judgment may be modified, no modification was requested, and the case was not tried upon this issue. Therefore, the order can be sustained only to the extent that it is a valid order of enforcement. The requirement to pay a $50 dividend is clearly a vehicle of enforcement. There is hardly any other practical way to enforce paragraph 9 of the judgment. However, we believe the decision to order dividends of not less than 50% of net earnings in future years goes too far. Such a requirement could have been specified as part of the settlement, but it was not. As drafted, the consent judgment leaves a certain amount of discretion in the hands of the directors. It is one thing for the court to look at the past dividend policy and the corporation’s present financial condition and determine that additional dividends must now be paid. It is an entirely different matter to impose a specific dividend requirement for future years. Such a provision more nearly smacks of modification than enforcement and must be stricken.

The accountant’s fees can be taxed in the nature of costs and present no problem. The question of attorneys’ fees is somewhat closer because it could be said that the petition for enforcement was not a true derivative action in which attorneys’ fees are authorized by Fla.Stat. § 608.-131(5) (1973). However, we need not decide whether a suit to enforce the payment of a dividend is a derivative suit within the meaning of the statute, because this litigation was more than that. In essence, this proceeding was a continuation of the original suit which was clearly derivative in nature. The management of the corporation was found to have violated the provisions of the judgment which was entered by consent in order to settle the suit. It logically follows that since the petitioner’s attorneys were entitled to an award of fees in the original suit, they should also be entitled to a further award upon the successful prosecution of the enforcement proceeding.

The remaining contentions of the corporation are without merit and need not be discussed.

The order is affirmed, as modified, by striking that portion which requires the corporation in the future to pay out as dividends a minimum of fifty percent (50%) of its annual net earnings.

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

      . The dividend figures for 1968 and 1969 include court ordered dividends which were part of the consent judgment.

      . Because of a change in the accounting year, the 1974 figure is as of September 30, adjusted by a reduction of the amount of dividends paid in December.

      . The interest which the corporation might have earned on the advances was probably offset by monies earned by the corporation on some of the annual payments which were not timely paid.

      . See 46 Am.Jur.2d, Judgments, § 688.

      . See Hopwood v. Revitz, Fla.App.3d, 1975, 312 So.2d 516.

      .According to Fletcher, the slight weight of authority tilts in favor of the view that such a suit is a derivative action. 13 Fletcher Cyc.Corp. (Perm.Ed.), § 5923.1.


text:
    Darryl FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1617.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 9, 1976.

      Richard S. Rhodes, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of first degree murder. The only issue he raises on appeal is the sufficiency of the evidence to show premeditation. We conclude that this point is without merit.

We comment briefly on what might appear, at first blush, to be fundamental error even though not argued. Appellant testified in his own behalf, relating a version of the incident which, if believed, would tend to partially (if not totally) exonerate him. Upon cross-examination the prosecutor elicited from appellant an admission that he had remained silent at the preliminary hearing. This was improper. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Bennett v. State, 316 So.2d 41 (Fla.1975); Jones v. State, 200 So.2d 574 (Fla.App.3rd, 1967). Defendant’s counsel initially objected, but then withdrew the objection, apparently because he intended to show on redirect examination that appellant’s silence at the preliminary hearing was the result of advice of counsel. There was no motion for a mistrial,, no motion to strike this testimony, nor any motion for the court to instruct the jury to disregard such testimony. In short, there was no judicial error, and we are not inclined to hold it as fundamental error in view of defense counsel’s tactical decision to withdraw his objection.

Affirmed.

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


author: SMITH, Judge.

text:
    Willie DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. Z-159.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

This case presents an unusual question concerning the sentencing court’s duty when, during proceedings to revoke an accused’s probation for repeated violation of its terms, a court-appointed psychiatrist reports that the probationer is able to understand and assist counsel in the revocation proceedings but “was not able to understand the nature,- quality and wrongfulness of his acts” constituting the original offense. The trial court in this case found that appellant substantially violated the terms of his probation three times and revoked the probation theretofore twice restored, sentencing appellant to imprisonment for five years for breaking and entering with intent to commit a misdemean- or, to which appellant pleaded guilty months earlier.

Appellant is a 45-year old black male with an established medical history for treatment of “schizophrenic reaction and brain syndrome related to epilepsy and alcoholic conditions” and no prior convictions except for disorderly conduct. The examining psychiatrist believes appellant suffered an alcohol-induced epileptic seizure before the break-in offense and that his state at that time was “characterized by confusion, clouding of consciousness and inappropriate acts and a lessening of volitional controls.” Appellant is chronically ill. His addiction to alcohol compounds his mental illness and resulted in the revocation of his probation, one of the terms of which was that he not use intoxicants to excess and that he reside at the Springfield Alcoholic Rehabilitation Community and observe its rules which forbade drinking.

The psychiatric evidence at hand indicates that appellant was able to understand and could assist his counsel in defending the charge of probation violation and it implies that appellant was similarly competent to enter his earlier plea. Appellant’s trial counsel made no request for leave to withdraw his guilty plea in the light of the psychiatric report. Rule 3.-170(f) R.Cr.P. No such request is made on this appeal. In these circumstances the trial court had no duty, and we have no power on this appeal, to roll back the months and enter for appellant a plea of not guilty. The probation violations, though surely related to appellant’s illness, were violations nevertheless. The sentence was not illegal. Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943).

Affirmed.

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


text:
    Jerome WINNS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-423.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Richard W. Ervin III, Public Defender, and David J. Busch, Asst. Public Defender; and Jerome Winns, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    WALKER & ASSOCIATES, INC., a limited partnership, Appellant (Plaintiff), v. GULF OIL COMPANY, a corporation, Appellee (Defendant).
    No. X-544.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    H. Edward Moore, Jr., Sherrill & Moore, Pensacola, for appellant.
    Lynn C. Higby, Panama City, for appel-lee.
   PER CURIAM.

This appeal questions the correctness of summary judgments rendered in favor of appellee.

The record on appeal fails to conclusively establish that there were no genuine triable issues of material fact under the issues as made by the second cause of action of the complaint and answer thereto, and counterclaim and answer thereto. Under these circumstances, the appellee was not entitled to judgments as a matter of law, and the trial court erred in holding to the contrary.

The judgments appealed are reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment .thereon.

Reversed and remanded.

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

McCORD, J., dissents without opinion.


author: PEARSON, Judge.

text:
    David S. KENET and Pay & Guest Co., Appellants, v. Charles H. STEIN, Appellee.
    No. 75-489.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Lapidus & Hollander, Miami, for appellants.
    Tobias Simon and Elizabeth duFresne, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

This is an appeal from an order dismissing plaintiff-appellants’ cause “. for failure to prosecute pursuant to said er of court.” The relevant dates appear to Rule 1.420(e), and under the inherent pow- be as follows:

October 1, 1973 Complaint filed
November 16, 1973 Defendant petitions for removal to U.S. District Court
November 26, 1973 Defendant’s answer; third party complaint against Banque de Financement
November 30, 1973 Remand to State Court
January 11, 1974 Plaintiffs’ motion to strike defendant’s answer denied
February 14, 1974 Banque de Financement S.A. motion to dismiss third party complaint
January 31, 1975 Plaintiffs’ notice of hearing on Banque’s motion
February 28, 1975 Hearing on Banque’s motion
March 3, 1975 Order dismissing third party complaint
March 4, 1975 Defendant’s motion to dismiss for plaintiff’s failure to prosecute

The record affirmatively demonstrates that within the period of one year prior to defendant’s motion to dismiss pursuant to the rule, the plaintiff took action reasonably intended to progress the cause between himself and the defendant through securing an order of court by noticing a hearing on the third party defendant’s motion to dismiss the third party complaint. See City of Miami v. Railway Express Agency, Inc., Fla.App.1962, 141 So.2d 285; and Milu, Inc. v. Duke, Fla.App.1971, 256 So.2d 83.

Defendant’s position that because the action affected only the third party complaint, it could not reasonably be interpreted as progressing the cause is not well taken. Until there was some deposition of the third party defendant’s motion to dismiss the complaint against it, the cause could not be brought to issue as defined by RCP 1.440.

And finally, we do not think that the addition to the order, making reference to the court’s inherent power to clear its dockets of cases that are not being progressed, takes the case from the applicable rule. This ground should be reserved for those cases in which the court finds that an offending plaintiff is purposely dragging its feet.

Reversed and remanded.


author: OWEN, Judge.

text:
    Vinton Robert WELSH, III, Appellant, v. STATE of Florida, Appellee.
    No. 75-1010.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler and Mitchell J. Beers, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., and Marsha G. Madorsky, Legal Intern, West Palm Beach, for appellee.
   OWEN, Judge.

Appellant, charged with extortion, entered a negotiated plea to attempted extortion as a result of which he was placed on four years’ probation. No appeal was taken from the order of probation. Subsequently, probation was revoked and appellant sentenced to five years in prison. He appeals from the order revoking probation.

Appellant contends that the revocation of probation was improper, not because of any insufficiency of the evidence to support the charge upon which revocation was based, but because the trial court’s initial imposition of probation with the condition of 90 days jail time was itself null and void and thus, appellant argues, there simply was no valid probation to be revoked. The point is without merit. It is now too late to question the probation order. See, Brown v. State, 305 So.2d 309 (Fla.App.4th 1974). • Were the probation order properly before us we would conclude on the authority of Lewis v. State, 298 So.2d 540 (Fla.App.4th 1974), that it was a valid and proper order.

The order revoking probation is affirmed.

MAGER and DOWNEY, JJ., concur.


author: PER CURIAM. BOYER, Chief Judge

text:
    David J. PADGETT, Appellant (Respondent), v. Irene M. PADGETT, Appellee (Petitioner).
    No. Z-169.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Conrad C. Bishop, Jr., of Weed & Bishop, Perry, for appellant.
    Edwin B. Browning, Jr., of Davis, Browning & Hardee, Madison, for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the final judgment is affirmed.

MILLS and McCORD, JJ., concur.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurs specially).

In the light of Dinkel v. Dinkel, Sup.Ct.Fla. 1975, 322 So.2d 22, I have no alternative but to concur in affirmance. However, in my view the record clearly reveals that appellant is the better parent for the minor child whose custody is here at issue and that the child’s best interests would be served were we not prohibited by the Din-kel decision from reversing.


text:
    Charles H. FINKELSTEIN, Appellant, v. William Godfrey SMITH et al., Appellees.
    No. Y-182.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Benjamin K. Phipps and Roger A. Coe, Tallahassee, for appellant.
    C. DuBose Ausley, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellees.
   SMITH, Judge.

May a party to a tripartite arbitration agreement name himself as one of the arbitrators? Ch. 682, F.S.1973. The circuit court so held and dismissed appellant Finkelstein’s petition seeking relief from appellees’ appointment of appellee Ahrano, who with the other appellee trustees are the lessors under the lease which embodies the agreement:

“Should the parties hereto be unable to agree upon the value of the land ., then and in that event, the value of the land . . . shall, at the request of the Lessor, be determined by a Board of Arbitrators. Said Board shall consist of three persons conversant with real estate and rental values in the City of Tallahassee, one of whom shall be appointed by the Lessor and one by the Lessee immediately after the Lessor requests the formation of the Board, and the third shall be selected within ten (10) days after their appointment by these two. . . .”

Recognizing that neither the Florida Arbitration Code nor judicial decisions require that arbitrators appointed by the disputants be as impartial as the third arbitrator named by those first appointed, the trial court held that “the degree of favoring or the amount of partiality is immaterial because it cannot be measured” and, consequently, that the partiality of appellee Ahrano to the position defended by himself and his fellow trustees does not disqualify him.

It is true that arbitrators appointed by disputants to a tripartite panel are expected by the disputants and should be understood by the courts to act as partisans only one step removed from the controversy. Astoria Medical Group v. Health Ins. Plan of Greater N.Y., 11 N.Y.2d 128, 227 N.Y.S.2d 401, 182 N.E.2d 85 (1962); Johnson v. Jahncke Service, Inc., 147 So.2d 247 (La.App. 4th, 1962); Phillips, A Lawyer’s Approach to Commercial Arbitration, 44 Yale L.J. 31, 47 (1934). The Florida Arbitration Code, by its unexplained reference to “an arbitrator appointed as a neutral” [§ 682.13(1)(b), see also § 682.06(3), F.S.1973], implies a similar expectation by the legislature. See also Stef Shipping Corp. v. Norris Grain Co., 209 F.Supp. 249, 253 (S.D.N.Y.1962).

Yet, in the concept of arbitration and in the usual meaning of the verb “appoint” and its synonyms is the clear implication that, because the disputants themselves are unable to resolve their controversy, others appointed by them or by their appointees can and should do so. In the selection of the third arbitrator the arbitration process makes good use of the separate identities of disputant and arbitrator, notwithstanding their possible unity in partisanship. We conclude that appellee Ah-rano, a named party to the lease in controversy, was ineligible for appointment as arbitrator. Astoria, 227 N.Y.S.2d at 406, 182 N.E.2d at 88, n. 1 (dictum).

We have drawn the line between identities knowing that a literal application of our standard would permit a disputant corporation to nominate its president or director, whose functional identity with the corporate entity may be as close as that of Ahrano with the trust. The New York Court of Appeals in Astoria, supra, reached just such a result. See also West Towns Bus Co. v. Division 241, etc., 26 Ill.App.2d 398, 168 N.E.2d 473 (Ill.App. 1st, 1960). Today, we simply recognize and do not decide the question of whether certain relationships between persons or between persons and artificial entities make them in effect identical and thus ineligible for appointment.

Reversed.

BOYER, C. J., and SACK, MARTIN, Associate Judge, concur.


text:
    Charlotte Faye PURVIS, Appellant, v. Larry Gene CARVER, Appellee.
    No. 75-1020.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.

      Bill McCabe of Meyers, Mooney & Adler, P.A., Orlando, for appellant.
    Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for appellee.
   PER CURIAM.

Appellee sought and obtained modification of visitation privileges with his four year old son whose custody had been awarded to appellant, the child’s mother. There was no proof that the increased visitation privileges would be in the best interests of the child’s welfare. To the contrary, all of the proof on that issue tended to establish that an increase in appellee’s visitation rights would be detrimental to the child’s welfare. Recognizing the wide discretion vested in the trial judge in matters of this type, we reluctantly conclude that the order enlarging appel-lee’s visitation rights was an abuse of discretion and is therefore reversed.

Reversed.

OWEN and DOWNEY, JJ., and LEE, J. CAIL, Associate Judge, concur.


text:
    STATE of Florida, Appellant (State), v. John LEE, Appellee (Defendant).
    No. Y-394.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellant.
    Brian Hayes, Monticello, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the interlocutory appeal is dismissed.

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


text:
    Eddie WELDON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-73.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., Michael M. Corin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Mary GREEN, Administratrix of the Estate of Shelby Ward Macks, Deceased for the benefit of Deona Macks, surviving minor daughter and Angela Macks, surviving minor daughter, Appellants (Plaintiff), v. James M. CARLISLE, III, and Argonaut Insurance Company, a corporation, Appellees (Defendants).
    No. Z-23.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Bill Hoppe of Colson & Hicks and Susan Goldman, Miami, for appellants.
    Charles R. Timmel, Fort Walton Beach, for appellees.
   PER CURIAM.

This appeal questions the correctness of a summary judgment rendered in favor of appellees.

An examination of the record on appeal conclusively establishes the absence of any genuine triable issue of a material fact and that appellees were entitled to judgment as a matter of law.

Accordingly, the judgment appealed is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    DEPARTMENT OF OFFENDER REHABILITATION, etc., Petitioner, v. Walter P. RYALS, and Career Service Commission, et al., Respondents.
    No. Z-88.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Raymond W. Gearey, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Patricia Coleen Dunn, Betty Steffens, Asst. Attys. Gen., and Walter P. Ryals, for respondents.
   PER CURIAM.

This Court having previously held in State Department of Health, etc. v. Career Service, etc., Fla.App.1st 1975, 315 So.2d 18, that one of the Career Service Commissioners was disqualified to sit in a case wherein the employee there involved was a member of a labor union of which the Commissioner was an officer, the cause is remanded to the Career Service Commission for further proceedings in accordance with our holding in that opinion. In so remanding we are mindful that at the time of the hearing giving rise to the review sub judice the Career Service Commission did not have the benefit of our opinion in the above cited case.

Having determined that remand is required in the light of the above cited case we find that it is not necessary for us to determine whether the Career Service Commission acted beyond its statutory authority when it allegedly altered the agency decision of dismissal to a 60 day suspension.

It is so ordered.

BOYER, C. J., McCORD, J., and LEE, THOMAS E., Associate Judge, concur.


text:
    Robert Lee JOHNSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. U-401.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: BOYER, Chief Judge.

text:
    HARRIS PAINT COMPANY, Appellant, v. MULTICON PROPERTIES, INC., et al., Appellees.
    No. Y—121.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.

      Ronald W. Young, of Lawrence & Gordon, Tampa, for appellant.
    James H. Post and Rutledge R. Liles, of Smith, Hulsey, Schwalbe & Nichols, and Charles Cook Howell, III, Jacksonville, for appellees.
   BOYER, Chief Judge.

Appellant, plaintiff below, appeals from the trial court’s order dismissing its second amended complaint. The question to be resolved is whether the one year statute of limitations imposed by F.S. § 713.22(1) is applicable.

Appellant filed its original complaint against appellee Multicon Properties, Inc., an Ohio corporation engaged in the buying and selling of real estate. That complaint sought to foreclose a mechanic’s lien filed in the public records of Duval County less than one year before the filing of the complaint. When Multicon Properties filed a motion to dismiss, appellant abandoned its original complaint and, without court order, filed its first amended complaint, dropping Multicon Properties as a defendant while adding Insurance Company of North America and Multicon Construction Corporation as defendants. Multicon Construction is another Ohio corporation engaged in the business of commercial construction contracting. The original complaint filed by appellant alleged that Multi-con Properties owned the subject property, but the first amended complaint alleged that Multicon Construction owned the property. With appellant’s approval, after appellant had already filed its first amended complaint, the lower court entered an order granting the pending motion to dismiss the initial complaint and allowing the filing of the first amended complaint. The trial court then granted a motion to dismiss the first amended complaint but with leave to amend. Appellant thereupon filed a second amended complaint retaining INA and Multicon Construction as defendants and adding Multicon Properties as an additional defendant. This last complaint, which alleged that Multicon Properties was the owner of the subject property, was filed eighteen months after appellant recorded its claim of lien and six months after the one year period of limitations imposed by F.S. § 713.22(1) had lapsed. Multicon Properties thereupon filed its motion to dismiss based on the statute of limitations.

Appellant makes no allegation, by way of pleading nor otherwise, of fraud, estoppel, nor misrepresentation. (See Argenbright v. J. M. Fields Co., Fla.App.3rd 1967, 196 So.2d 190) Indeed, appellant admits in its brief that Multicon Construction rather than Multicon Properties was alleged to have been the owner of the property in question in the first amended complaint through mistake and inadvertence. Thus, the issue before us is whether a party who has filed a complaint against a proper party within the period designated by the statute of limitations and who voluntarily drops that party as a defendant may then re add that party defendant after the statute of limitations has run. For reasons expressed below, we hold that he cannot.

A fundamental purpose of the limitation periods established by F.S. § 713.22(1) and § 713.24(4) is the speedy determination of mechanic’s lien claims. (Jack Stilson and Co. v. Caloosa Bayview Corp., Sup.Ct.Fla. 1973, 278 So.2d 282) The circumstances of this case present no valid reason for failing to apply the statute of limitations. To hold otherwise would render the very purpose of the limitation period nugatory. Appellant has relied on Argenbright v. J. M. Fields Co., supra, to support its assertion that the statute of limitations should not be applied. However, in the Argen-bright case, the actions of the defendant misled the plaintiff and caused the statute of limitations to run, whereas in the instant case, the statute ran because of a simple mistake. This case is more closely analogous to Barrentine v. Vulcan Materials Co., Fla.App.1st 1968, 216 So.2d 59, wherein a party plaintiff attempted to refile an action after the limitations period had lapsed and where the action had originally been dismissed for failure to prosecute. In both instances, the appellant’s own action (or inaction) caused the statute of limitations to run.

Affirmed.

RAWLS and McCORD, JJ., concur.

      . Appellant has not raised as an issue before us the propriety of dismissing a complaint when it appears on its face that the statute of limitations has run as distinguished from permitting the statute of limitations to be raised as an affirmative defense for the purpose of summary judgment. See Rule 1.110(d), RCP. We here express no opinion as to the propriety of that procedure, and since it has not been raised we do not address the issue.


text:
    PENINSULAR FIRE INSURANCE COMPANY, INC., Appellant (Defendant), v. Adrian J. MAXWELL, Appellee (Plaintiff).
    No. Z-379.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    William A. Parsons, of Gosney, Haas, Cameron & Parsons, Daytona Beach, for appellant.
    Thomas R. Hess, of Ossinsky & Krol, Daytona Beach, and Sutton G. Hilyard, Jr., Orlando, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find that the record fails to conclusively establish that there was no genuine triable issue of a material fact as to the first loss alleged in Count I of the Complaint, but we find that the record conclusively establishes the absence of any genuine triable issue of a material fact as to the second loss alleged in Count I of the Complaint.

Accordingly, the interlocutory appeal is granted as to the first loss and the cause is remanded to the trial court for the purpose of receiving evidence as to the first loss, but the interlocutory appeal is dismissed as to the second loss.

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


text:
    Vernon Leroy POTTER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-395.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Vernon Leroy Potter, in pro. per.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    William FLOOD, Appellant, v. Fred W. WARE and Ware Plumbing, Inc., a Florida Corporation, Appellees.
    No. 74-1529.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Brian E. Johnson, of Kurland & Johnson, Clearwater, for appellant.
    Gilbert P. Macpherson of Robinson & Macpherson, Clearwater, for appellees.
   PER CURIAM.

Appellant, William Flood, filed his complaint against Walter R. Jordan, Fred W. Ware and Ware Plumbing, Inc., alleging therein, among other things, intentional interference by Fred W. Ware and Ware Plumbing, Inc. with a business or contractual relationship, i. e., a rental agreement between appellant and Walter R. Jordan. The complaint further alleged a refusal on the part of Walter R. Jordan to exercise his duty as landlord to insure appellant’s peaceful possession of the premises. Appellant sought both compensatory and punitive damages. Appel-lees having filed appropriate responses to the complaint, the case proceeded to trial before a jury.

At the conclusion of appellant’s case the trial court granted a motion for directed verdict in favor of Jordan and he was dismissed from the case. The trial court also granted a motion for directed verdict in favor of Fred W. Ware and Ware Plumbing, Inc. on Count II (invasion of privacy) and Count III (intentional infliction of severe emotional distress) of the complaint. The court reminded counsel for the parties that Count I (restraint of trade) had been stricken by the court at the pretrial conference. The case then was presented to the jury on Count IV (intentional interference with a business or contractual relationship) and Count V (trespass).

The jury returned its verdict against ap-pellees, Fred W. Ware and Ware Plumbing, Inc., jointly awarding compensatory damages in the amount of $40,000 and punitive damages in the amount of $10,000 in favor of appellant. Subsequently, ap-pellees filed their motion for new trial, and motion for judgment in accordance with motion for directed verdict. After hearing, the trial judge, the Honorable David Seth Walker, entered an order dated June 17, 1974, denying the motion for judgment in accordance with the motion for directed verdict, but granted appellees a new trial. No appeal was taken from this order.

Approximately 90 days later appellant filed his motion to set the case for jury trial. Thereafter, on October 14, appellees filed their motion for reconsideration of motion for judgment in accordance with motion for directed verdict and motion for judgment notwithstanding verdict. The hearing on appellees’ motions was 'held before Circuit Judge B. J. Driver, the successor judge. After hearing, an order was entered by Judge Driver, on December 11, granting said motions, which had the effect of reversing Judge Walker’s order granting a new trial. Appellant filed this appeal from the order entered on December 11, by Judge Driver.

In Clement v. Aztec Sales, Inc., Fla. 1974, 297 So.2d 1, the Supreme Court held that an appeal from an order granting a new trial pursuant to Fla.Stat. § 59.04 (1973) was not interlocutory. If such an appeal is not interlocutory, it would seem to be final, though admittedly it occurs prior to final judgment. In spite of the fact that the wording of Fla.Stat. § 59.04 suggests that the right to appeal from an order granting new trial prior to final judgment may be discretionary, we have found no appeal taken after final judgment in which the losing party urged that the case be reversed because the court had erroneously granted the new trial which ultimately resulted in the adverse judgment. If for no other reason, to require a party who is aggrieved by the granting of a new trial to appeal from that order or forever hold his peace would certainly have the effect of saving judicial labor.

Hence, we have concluded that when the appellees failed to appeal the order granting new trial, this order became the law of the case. Therefore, even though we can appreciate why Judge Driver felt that certain findings in Judge Walker’s order granting a new trial were such as would dictate the entry of a judgment for the appellees and irrespective of whether it is ever appropriate for a successor judge to set aside a new trial order entered by the judge who tried the case, we hold that Judge Driver had no authority to enter a judgment which had the effect of reversing the order which granted a new trial.

For the reasons above stated, Judge Driver’s order is hereby quashed and the cause remanded with directions to reinstate Judge Walker’s order of June 17, 1974, for a new trial on all issues, liability and damages, both compensatory and punitive that were presented to the jury.

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


text:
    James Richard COLLIS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-280.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Richard W. Ervin, III, Public Defender and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Linda WATSON, Appellant, v. Bob WATSON and Interstate Fire Insurance Company, Appellees.
    No. 75-823.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
    Thomas D. Casper, Yado, Keel, Nelson & Casper, Tampa, for appellant.
    Richard Henry Maney, Law Office of Billy R. Barr, Tampa, for appellee Interstate Fire Ins. Co.
   GRIMES, Judge.

This case involves the question of whether a certain accident arose “out of the ownership, maintenance or use” of an automobile so as to fall within the scope of liability coverage provided by Interstate Fire Insurance Company.

The facts are simple and tragic. Bob Watson was involved in an automobile accident on April 18, 1971, in Polk County. His son, John Watson, passed by the scene and stopped to help his father. In doing so, John began to remove his father’s personal possessions from the car, so it could be taken to a garage for repairs. As John removed a pistol from beneath the car seat, it discharged and killed him. The pistol was loaded and unguarded by any safety mechanism.

John Watson’s wife filed a wrongful death action against her father-in-law and his automobile liability carrier. A default judgment for $10,000 was entered against Bob Watson. Interstate defended on the basis that it did not furnish insurance coverage for the accident stated in the amended complaint. The lower court entered a final summary judgment for Interstate.

The liability coverage of the policy is:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

Thus, in order for liability coverage to exist, the incident must arise out of the ownership, maintenance or use of the car. The term “arising out of” has been interpreted to mean “originating from”, “growing out of”, or “flowing from.” St. Paul Fire & Marine Insurance Company v. Thomas, Fla.App.4th, 1973, 273 So.2d 117. This does not require a showing of proximate cause between the accident and the use of the car, but there must be a causal connection or relation between the two for liability to exist. St. Paul Fire & Marine Insurance Company v. Thomas, supra.

The appellant asserts that the causal link between the use of the vehicle and the death of John Watson was the accident in which Bob Watson was involved. The car had to be removed for repairs. In order to do so, Bob’s personal belongings had to be removed from the car, and the act of removing the pistol resulted in John’s death. We do not agree that this is sufficient to establish a causal relation between the death of John Watson and the use of the car.

Here, the car was merely the physical si-tus of the accidental discharge of the pistol. This could have occurred anywhere the pistol was located. The fact that the fatal event occurred at or near the car was fortuitous. There was no causal connection between it and the use of the auto. The death of John Watson occurred through the use of a pistol, not the use of a car. Thus, there is no coverage under Interstate’s policy.

Valdes v. Smalley, Fla.App.3d, 1974, 303 So.2d 342, is distinguishable because in that case the movement of the car played a part in causing the injury. The case of National Indemnity Co. v. Corbo, Fla.App.3d, 1971, 248 So.2d 238, is more difficult to reconcile. There, automobile liability coverage was held to exist when a passenger in an automobile was bitten by a watchdog being carried to a place of business when the owner had made a stop at a drugstore en route and left the passenger alone in the car with the dog. Suffice it to say, the opinion in that case laid great emphasis on the fact that the primary purpose of the trip was to transport the dog, whereas it could hardly be said that Bob Watson had been using his car for the primary purpose of carrying the loaded pistol. Courts in several other states have held as we do with respect to similar insurance policy language where an automobile has been the situs of an accident involving a firearm. Norgaard v. Nodak Mutual Insurance Company, N.D.1972, 201 N.W.2d 871; Azar v. Employers Casualty Company, 1972, 178 Colo. 58, 495 P.2d 554; United States Fidelity & Guaranty Company v. Western Fire Insurance Company, Ky.App.1970, 450 S.W.2d 491; Brenner v. Aetna Insurance Company, 1968, 8 Ariz.App. 272, 445 P.2d 474; Mason v. Celina Mutual Insurance Company, 1967, 161 Colo. 442, 423 P.2d 24.

Affirmed.

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


author: STOKES, ROBERT G., Associate Judge.

text:
    Louise H. GAUNT, Appellant, v. James Tate GAUNT, Jr., Appellee.
    No. 74-1359.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.

      V. Craig McCaghren, West Palm Beach, for appellant.
    John M. Hathaway, Hathaway & Norton, Punta Gorda, for appellee.
   STOKES, ROBERT G., Associate Judge.

The principal point in this case is whether the trial judge erred in allowing the husband to assert an oral counterclaim for special equity in real property owned jointly by the parties. The oral counterclaim was made during the trial and over the objections of wife’s counsel.

Although Rule 1.190(a), RCP, allows amendments to conform with the evidence by leave of court, this court has previously held in Tucker v. Daugherty, Fla.App.2d, 1960, 122 So.2d 230:

. . . Amendments under Rule 1.15(b), Florida Rules of Civil Procedure, 30 F. S.A. of course, can be made at any time, but they must not prejudice the opposing parties.

In view of the current law with respect to the presumption of gifts in marital relationships, the appellant could properly have relied upon this presumption and, thereby, not had an ample opportunity for discovery relating to the issues presented in a special equity claim; and, also, not had the opportunity to present testimony to refute husband’s claim for the special equity. Accordingly, the cause is reversed as to this point and remanded for further proceedings consistent with this opinion.

The remaining points on appeal have been considered and, being found to be without merit, are affirmed.

Reversed and remanded.

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

      . See Ball v. Ball (Fla.App.2d, 1974), 303 So.2d 32; Steinhauer v. Steinhauer (Fla.App.4th, 1971), 252 So.2d 825.


text:
    Willie Lee HOLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-978.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.

      James A. Gardner, Public Defender and Patrick R. Cunningham, Asst. Public Defender, Bradenton, and Willie Lee Holman, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

In 1951 appellant, Willie Lee Holman, was convicted of assault with intent to commit first-degree murder and sentenced to twenty years imprisonment. He was charged that same year with a separate offense of first-degree murder; he pled guilty to a reduced charge of murder in. the second degree and was given a second, consecutive twenty-year sentence.

In this third postconviction motion, Holman, for'the first time, sufficiently alleges that his guilty plea was involuntary. Allegedly, his plea was induced by his attorneys’ misrepresentations that the twenty-year murder sentence was to run concurrently with the assault sentence. Since this allegation states a sufficient claim for relief and since it is unrefuted by the meager record, we remand for an eviden-tiary hearing.

Reversed and remanded for further proceedings consistent with this opinion.

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

      . See Costello v. State, Fla.1972, 260 So.2d 198; Brown v. State, Fla.1971, 246 So.2d 41.


text:
    Patricia Ann JAMES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-227.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Richard W. Ervin, III, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: SCHEB, Judge.

text:
    Harriet W. LEIB, as the duly appointed Administratrix of the Estate of Lester Leib, Deceased, Appellant, v. CITY OF TAMPA, Appellee.
    No. 75-177.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Arnold D. Levine and Rick B. Levinson, of Levine, Freedman & Hirsch, Tampa, for appellant.
    William T. Keen, Tampa, for appellee.
   SCHEB, Judge.

Appellant/plaintiff contends the trial court erred in awarding the defendant/appellee a summary judgment upon finding the design of an intersection maintained by the City of Tampa was not in any way a proximate cause of an accident which occurred involving the plaintiff’s decedent, Lester Leib. We agree with the plaintiff and we reverse.

Brorein Street runs east and west and intersects with Franklin Street which runs north and south in downtown Tampa. The intersection is controlled by appropriate traffic signals. Brorein Street to the west of Franklin Street is offset to the south so that vehicles proceeding easterly on Bro-rein must veer left to continue on course through the intersection; otherwise, such traffic risks running into those vehicles headed north on Franklin but stopped there for the red traffic signal.

On December 28, 1972, the plaintiff’s decedent Leib, while driving north on Franklin Street had stopped his car for the red signal light. Although his automobile was stopped behind the stop bar painted on the street, it nevertheless protruded into the eastbound lane of Brorein Street. At that time an automobile being driven east on Brorein by Glenn Ellis Shell came through the intersection at a very high rate of speed. Shell failed to veer to the left and crashed into Leib’s vehicle, killing both himself and Leib.

In this action the plaintiff alleged the defendant City was negligent in failing to properly warn motorists on Franklin Street to stop their vehicles in such a position so as not to allow them to protrude into the path of Brorein Street. Plaintiff’s further allegations likewise- proceeded on the theory the defendant City was negligent in other aspects of its design, construction and maintenance of the street.

The trial court entered a summary judgment for the defendant, finding:

In view of the fact that one eyewitness to this accident places the speed of the car that crashed into the Leib vehicle at between 80 and 90 miles per hour and a second eyewitness placed the speed of the same automobile at definitely over 60 miles per hour and it being uncontro-verted that the intersection where this accident occurred is in downtown Tampa, this Court finds as a matter of law that the sole proximate cause of this accident was the grossly negligent operation of the Rambler automobile by deceased, Glenn Ellis Shell, and that the design of the intersection in question was not in any way a proximate cause of the happening of this accident.

Affidavits were filed by the plaintiff in opposition to the defendant’s motion for summary judgment and included: (1) a photo of the intersection showing that an automobile headed north on Franklin and stopped for the red light behind the stop bar would protrude into the path of the traffic lanes on Brorein; and (2) statement of a consulting engineer and traffic planner who, after inspecting the intersection, opined that it was negligently designed and maintained.

Entry of the summary judgment was improper. Here there was evidence of improper design of the intersection, and irrespective of whether Shell’s alleged negligence was a proximate cause, there was a factual dispute as to whether there was also negligence on the part of the City and, if so, whether the City’s negligence was so related as to be a contributing proximate cause to this traffic accident. Ordinarily the issue of proximate cause is inappropriate for determination by summary judgment since the question generally must be resolved by the trier of fact from all of the facts and circumstances in a particular case. Hellweg v. Holmquist, Fla.App.4th 1967, 203 So.2d 209. Even if Shell’s act of driving through downtown Tampa at a high rate of speed is regarded as an intervening cause of the accident, the first wrongdoer may still be held liable if such an intervening cause was foreseen or reasonably might have been foreseen by the original wrongdoer. 23 Fla.Jur., Negligence, § 39. And, even where the precise intervening force is not foreseeable, the original w.rongdoer may be held liable where the harm caused by the intervening force was a reasonably foreseeable consequence. Mozer v. Semenza, Fla.App.3d 1965, 177 So.2d 880. See also, Standard Jury Instruction 5.1(c), Intervening Cause, and Comment 3 thereto. At this stage of the proceeding we cannot say as a matter of law that the harm caused by Shell, in view of the alleged improperly designed and maintained intersection, could not have reasonably been foreseen by the City of Tampa.

Since the trier of fact may ultimately draw varied conclusions from the evidence, it cannot be said “ . . . that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” RCP Rule 1.510. As we stated in Smith v. Avis Rent-A-Car, Fla.App.2d 1974, 297 So.2d 841, the moving party must show conclusively that no material issues remain for trial in order to prevail on a motion for summary judgment.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

McNULTY, C. J., and HOBSON, J., concur.

      . The summary judgment in favor of the defendant City was granted below solely on the issue of proximate cause. The trial court made no determination whether the alleged negligence of the City falls under the classification of proprietary activity where historically municipalities may be held liable. Cf. Woods v. City of Palatka, Fla.1953, 63 So.2d 636; Gordon v. City of West Palm Beach, Fla.App.4th 1975, 321 So.2d 78. While the plaintiff’s pleadings were obviously tailored to fall within this category, we express no opinion as to whether the City may ultimately be held to be liable.


text:
    STATE of Florida, Petitioner, v. Willie Clayton SIMPSON, Respondent.
    No. 75-1126.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.

      David H. Bludworth, State Atty., Daniel T. K. Hurley, Asst. State Atty., and Robert Gross, legal intern, West Palm Beach, for petitioner.
    Andrew I. Friedrich and Starr & Brown, West Palm Beach, Co-counsel for respondent.
   WALDEN, Chief Judge.

The state has brought a petition for certiorari as permitted under Fla. Const, art. V § 4(b)(3) (1972), seeking review of a trial court order granting a mistrial and a discharge of the jury in this case, State v. Simpson, Circuit Court Case No. 74 — 2950. The trial court entered its order based on its finding that the state had, by the use of peremptory challenges, exercised improper racial discrimination when selecting the jury. We have been urged by counsel for defendant that the case is moot, because defendant has been tried and convicted in a subsequent case of State v. Simpson. We choose, however, to exercise our prerogative to grant certio-rari. This fact situation presents an issue of great public interest; and the problem might arise in the future unless now clarified. Wilson v. Newell, 223 So.2d 734 (Fla.1969); Walker v. Pendarvis, 132 So.2d 186 (Fla.1961); Tau Alpha Holding Corp. v. Board of Adjustments, 126 Fla. 858, 171 So. 819 (1937); State ex rel. Gissendanner v. Leatherman, 237 So.2d 820 (Fla.App. 3rd, 1970). There is a presumption that the prosecution is using its peremptory challenges properly. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the court noted:

“ . . . The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.” 380 U.S. at 222, 85 S.Ct. at 837.

The burden of proving a charge of racial discrimination in jury selection is upon the defendant:

“In short, petitioner has not laid the proper predicate for attacking the peremptory strikes as they were used in this case. Petitioner has the burden of proof and he has failed to carry it.” 380 U.S. at 226, 85 S.Ct. at 839.
“ . . . [T]he defendant must, to pose the issue, show the prosecutors systematic use of peremptory challenges against Negroes over a period of time.” 380 U.S. at 227, 85 S.Ct. at 839.

U. S. v. Delay, 500 F.2d 1360 (8th Cir.1974); U. S. v. Pollard, 483 F.2d 929 (8th Cir.1973); U. S. v. Pearson, 448 F.2d 1207 (5th Cir.1971).

In U. S. v. Pearson, supra, the court set forth the standard for judging prosecutorial actions in jury selections. The standard is extremely rigid:

“The burden of proof faced by defendants is most difficult. . It might require checking the docket for a reasonable period of time for the names of defendants and their attorneys, investigation as to the race of the various defendants, the final composition of the petit jury and the manner in which each side exercised it peremptory challenges. We can well understand how the present defendants’ counsel were unable to produce additional evidence. In the six years which have passed since Swain, we have not found a single instance in which a defendant has prevailed on the issue. Nonetheless, the burden is not insurmountable.” Id. at 1217-1218.

In Swain v. Alabama, supra, the Supreme Court noted that systematic exclusion by peremptory challenge of blacks from juries is subject to scrutiny under the Fourteenth Amendment:

“ . . . We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and vaho ever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.” 380 U.S. at 223, 85 S.Ct. at 837. (Emphasis supplied.)

This portion of Swain v. Alabama, supra, presumes that to prove the kind of activity that would be foreclosed by the Fourteenth Amendment it must be proven that: (1) a particular prosecutor, (2) in every type of case, (3) in every set of circumstances, and (4) for an extended, provable period of time, has (5) peremptorily excused blacks with the result that no black ever served on a petit jury.

In the case here, the trial judge improperly excluded noncapital cases from its review; and even further limited the review to capital cases with white victims and black defendants. This exclusion alone would have invalidated the trial court finding because the review did not include every kind of case in every circumstance.

We feel it necessary, however, to continue and note that the capital cases upon which the court based its holding were devoid of any proof of improper exclusion, and lacked even an inference of such exclusion. The trial court primarily based its ruling on the following five Circuit Court cases besides the instant Simpson case; State v. Pugh, State v. Burgess, State v. Alford, State v. Cheney, and State v. Burch. The individual prosecutor had trial responsibility for only one of those five, and in that case (State v. Pugh) there were black jurors on the jury. In State v. Burgess there was no showing that there were black jurors in the venire or that either side exercised peremptory challenges to remove black jurors. In State v. Alford there were nine prospective black jurors and all were excused from the jury. However, the testimony of both parties here showed that several of these were excused for cause. In State v. Cheney the record clearly shows that blacks served on the jury. In State v. Burch there was testimony that of three or four prospective black jurors, one was excused by the court, others were excused for health reasons, and the State excused the other. We agree with the State’s contention that, taking the facts most favorable to the defendants and measuring by the requirements of Swain v. Alabama, supra, there was absolutely no proof nor even any inference of improper conduct on the part of the prosecution. Little v. U. S., 490 F.2d 686 (8th Cir. 1974); Singleton v. Estelle, 492 F.2d 671 (Sth Cir. 1974); U. S. v. Conley, 503 F.2d 520 (8th Cir. 1974); U. S. v. Delay, supra; U. S. v. Pollard, supra; U. S. v. Williams, 446 F.2d 486 (5th Cir. 1971); Brown v. Crouse, 425 F. 2d 305 (10th Cir. 1970); McKinney v. Walker, 394 F.Supp. 1015 (D.S.C., 1974); see Pitts v. State, 307 So.2d 473 (Fla.App. 1st, 1975).

The petition for certiorari is granted and the appealed order is quashed.

OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.