text:
    CITIZENS STATE BANK, a Wisconsin Corporation, and Ray John Mayer, Appellants, v. WINTERS GOVERNMENT SECURITIES CORPORATION, a Florida Corporation, Appellee.
    Nos. 77-1088, 77-1814.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Rehearings Denied Sept. 7, 1978.

      Theodore P. Mavrick, Fort Lauderdale, for appellants.
    Norman E. Marcus of Law Offices of Gerald Beyer, Fort Lauderdale, for appel-lee.
   DOWNEY, Judge.

These are consolidated interlocutory appeals from two Orders denying appellants’ motions to dismiss for lack of jurisdiction over the defendant and insufficiency of process and service of process.

Originally, appellee sued appellants for damages for breach of a contract. Appellant corporation is a Wisconsin bank and appellant Mayer is the President thereof. Appellee is a Florida corporation engaged as a dealer in government securities. Ap-pellee’s complaint alleged that appellant and appellee engaged in a series of fourteen business transactions commencing on August 25, 1976, and concluding in January 1977, wherein appellee bought securities from and sold securities to appellant. The sales were handled by appellee with appellant Mayer as President of appellant Bank; all transactions were initially handled by telephone and then were usually confirmed in writing. The final two transactions giving rise to this litigation are alleged to have taken place on January 4 and 6, 1977. However, the written confirmations of those two transactions were returned to appellee unsigned on February 3, 1977.

Service of process was made pursuant to Section 48.193, Florida Statutes (1975). Appellants moved to dismiss the original complaint for lack of jurisdiction and insufficiency of process and service of process. Said motion was supported by affidavits of bank officers who stated, among other things, that appellant Bank did not do business in Florida; none of its agents had authority to do business in Florida; and the Bank main-, tained no office in Florida. The affidavits expressly stated that appellants did not enter into any transaction at all in January 1977 with appellee. In response to said affidavits, appellee filed two affidavits, one of which described the numerous past transactions wherein appellant and appellee had bought and sold securities. The other affidavit signed by Charles Smith described the manner in which the parties had previously transacted business. The affidavit then states relative to the two January transactions:

“Thereafter, commencing on or about August 25, 1976, and continuing up to and including January 6, 1977, the Defendant Mayer entered into a series of transactions whereby he directed Smith to purchase and sell Government National Mortgage Association (‘GNMA’) Future Contracts. . . . ” (Emphasis supplied.)

The trial court denied the motion to dismiss, holding that the allegations of ap-pellee’s complaint and the proof adduced by appellee in support thereof were sufficient to show appellants had been “conducting, engaging in or carrying on a business or business venture in the State of Florida” and they were sufficient to show appellants had “breached contracts in the State of Florida by failing to perform acts required by the Contracts to be performed in this state.” Thus, it is clear the trial court found jurisdiction based upon Section 48.-193(l)(a) and (l)(g), Florida Statutes (1975). We think the court erred in finding jurisdiction based upon Section 48.193(l)(g) for the reasons set forth in a very similar case decided this same date in Bank of Wessington v. Winters Government Securities Corporation, Fla.App., 361 So.2d 757, Case No. 77-1635. However, we approve his finding of jurisdiction pursuant to Section 48.193(l)(a), Florida Statutes (1975).

We are fully cognizant that Florida’s long arm statute is of the type that requires more activities or contacts to sustain service of process than are currently required by decisions of the Supreme Court of the United States; long arm statutes are to be strictly construed; the person invoking jurisdiction under such statutes has the burden of proving facts which clearly justify the use of this method of service of process. However, we believe the language used by the Supreme Court of Florida in Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975), authorizes the finding of jurisdiction under Section 48.193(l)(a), Florida Statutes, in the ease at hand.

Paraphrasing the pertinent part of Section 48.193(l)(a), it provides that any person, whether a resident or non-resident, who engages in a business venture in this State thereby submits himself to the jurisdiction of the courts of this state. In Dinsmore, supra, the Supreme Court held:

“In order to determine whether jurisdiction can be acquired over the non-resident defendants pursuant to Fla.Stat. § 48.191(1), it is necessary to determine whether the individual or corporate defendant, was carrying on a business or business venture in this State. The activities of the person sought to be served pursuant to Fla.Stat. § 48.181(1) must be considered collectively and show a general course of business activity in the State for pecuniary benefit. DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969). A nonresident defendant, which engages the services of brokers, jobbers, wholesalers or distributors, can be doing business in this State pursuant to Fla.Stat. § 48.-181(1) if the nonresident defendant, through brokers, jobbers, wholesalers or distributors was engaged in a course of conduct in Florida for the purpose of realizing a pecuniary benefit.” Id. at 564.

A review of the collective activities alleged and proven clearly shows that appellants were engaged in “a general course of business activity in the State for pecuniary benefit.” That seems to be sufficient as Dinsmore leaves no question that there need be no local office nor agent, no lease, no meeting, no presence of corporate offices in Florida to warrant a finding of engagement in a business venture. Thus, we believe the trial court was correct in denying the motion to quash as to the appellant Bank.

Appellee’s original complaint argued essentially that Mayer had full and complete authority to transact business on behalf of the Bank but the Bank repudiated Mayer’s agreements and that to the extent that Mayer breached his warranty of authority as represented to appellee Mayer was personally liable. Mayer’s affidavit in support of appellants’ motion to dismiss for lack of jurisdiction does not contradict the foregoing allegations, and therefore, the trial court was correct in denying the motion to dismiss as to Mayer.

In the order denying appellants’ motions the trial court also granted appellee leave to amend its complaint. After the amended complaint was filed appellants filed a motion pursuant to Fla.R.Civ.P. 1.540, seeking relief from the court’s previous order denying appellants’ motion to dismiss for lack of jurisdiction. Appellants supported that motion with a deposition of one of appellee’s officers and a further affidavit from appellant, Mayer. The trial court denied the Rule 1.540 motion also and we think rightly so.

The trial court had already found the allegations of the original complaint (which were carried over into the amended complaint) and the proof adduced in support thereof to be sufficient. We do not believe anything raised in appellants’ 1.540 motion required a different ruling. Although Mayer’s second affidavit contradicted the complaint and appellee’s affidavits the court had already determined it had jurisdiction and all Mayer’s new affidavit did was create a conflict with appellee’s affidavits. We think it came too late.

Accordingly, the interlocutory orders appealed from in Case No. 77-1088 and 77-1814 are affirmed and the cause is remanded to the trial court for further proceedings.

AFFIRMED.

CROSS and ANSTEAD, JJ., concur.

      . Youngblood v. Citrus Associates of New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA 1973).

      . The Elmex Corporation v. Atlantic Federal Savings & Loan Association of Ft. Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976).

      . See also Electro Engineering Products Co. Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Gonas, Florida’s Long Arm Statutes: Federal Versus State Construction, 52 Fla.B.J. 292 (1975).

      . The reference to Section 48.191(1) is erroneous; the citation should be to Section 48.-181(1).

         Section 48.181(1), Florida Statutes (1971) and Section 48.193(l)(a), Florida Statutes (1975) have the same language, “operate, conduct, engage in, or carry on a business or business venture in this state.” Therefore, interpretation of the language in Section 48.181(1), Florida Statutes (1971) likewise would be applicable to Section 48.193(l)(a), Florida Statutes (1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Johnnie Lee MITCHELL, Appellant, v. RYDER TRUCK RENTAL, INC., a Florida Corporation, Appellee.
    No. 77-238.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Sept. 8, 1978.
    Leonard Sussman and Henry W. Ciar, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami,, for appellee.
    Before HENDRY, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. The Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978), opinion filed April 4, 1978.


text:
    Harris LEVESON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2496.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Sept. 6, 1978.
    Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Haro v. State, 314 So.2d 236 (Fla.3d DCA 1975).


text:
    Will SULLIVAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1510.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.

      Jack 0. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for Appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for Appellee.
   PER CURIAM.

Affirmed. See State v. Wright, 265 So.2d 361 (Fla.1972).

GRIMES, C. J., and HOBSON and 0TT, JJ., concur.


author: PEARSON, Judge.

text:
    REGAL SHOE SHOPS, a division of Wohl Shoe Company, a Missouri corporation, Appellant, v. Martin G. KLEINMAN, Appellee.
    No. 77-120.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Sept. 6, 1978.
    Friedman & Britton and J. Robert Olian, Miami, for appellant.
    Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

The appellant, Regal Shoe Shops, was the plaintiff in the trial court. The appellee, Martin G. Kleinman, was the defendant. This appeal is from a summary final judgment for Kleinman upon Regal’s action against Kleinman in Kleinman’s capacity as guarantor of a lease agreement for real property in the State of New York. The lease and the guarantee of the lease, as well as the dealings between the parties subsequently mentioned, all took place in the State of New York. It is our conclusion that the construction of the lease, the guarantee and the effect of the subsequent dealings between the parties were all governed by the law of the State of New York. See Connor v. Elliott, 79 Fla. 513, 85 So. 164 (1920); and Quintana v. Ordono, 195 So.2d 577 (Fla.3d DCA 1967).

Regal entered into a written lease whereby it leased office space in New York City to a corporation known as Snelling & Snell-ing Lower Manhattan, East, Inc. Defendant Kleinman was the president, a director and the sole shareholder of Snelling. He executed a written guarantee whereby he guaranteed the full performance of the terms and conditions of the lease. Several modifications of the lease were made. First, the landlord consented to the subleasing of a portion of the leased premises. Second, Snelling released its rights to the blockage of a display window in a subway arcade entrance. Third, Regal agreed to accept a lump sum arrearages payment and to extend the monthly payment to thirty days, to change the rental due date from the first of the month to the tenth and to allow Snelling the right to sublet the premises. All of these modifications were made with Kleinman’s knowledge and through him as the corporation officer. Kleinman did not individually agree to the changes made.

After Snelling abandoned the premises, Regal sued Snelling in New York State and received a judgment for rent arrearages. The trial court in the present action entered summary judgment for Kleinman on the ground that the modification of the lease agreement without Kleinman’s consent discharged the guarantee. See Becker v. Faber, 280 N.Y. 146, 19 N.E.2d 997 (1939). The appellee urges as an additional ground for affirmance that the record shows, without genuine issue of material fact, the establishment of his defense of constructive eviction. We do not set forth the facts related to this condition because the record reveals that the entry of the summary judgment was on the basis set forth above and the record clearly shows a genuine issue of material fact of whether there was a constructive eviction.

We hold that it was error to enter the summary judgment for the defendant because the New York cases support the legal proposition that despite the general rule to the contrary, a corporation officer is not discharged in his capacity as an individual guarantor by an alteration or modification of the contract of guarantee where the variation in the contract was brought about through the guarantor’s actions. See Bollinger v. Rheem Manufacturing Company, 381 F.2d 182 (10th Cir. 1967); and M. H. Metal Product Corporation v. April, 251 N.Y. 146, 167 N.E. 201 (1929). The reasoning of the New York court is that if the variation in the contract is brought about through the guarantor’s action, or his conduct discloses his consent to the change, he is estopped to assert the variation to avoid his guarantee. Cf. Bass v. Span East Airlines, Inc., 289 So.2d 466, 468 (Fla. 3d DCA 1974). The facts of this case viewed in light of the New York law which recognizes the exception to the general rule presents a genuine issue of material fact of whether Kleinman’s actions disclose his consent to the changes and whether he is thereby es-topped to assert the variations to avoid this action on his guarantee.

Reversed and remanded for further proceedings according to the views herein expressed.

      . “THE COURT: You’re suing Kleinman right now?
      “MR. GUNDLACH: That’s right. They have raised an affirmative defense that there were all sorts of problems with the heating system and—
      “THE COURT: That’s not the issue.
      “The issue is how are you going to go against a guarantor without a guarantor.
      “MR. GUNDLACH: Very simply, Judge.
      “THE COURT: That’s your issue. All the rest of this is surplus.”


author: HAVERFIELD, Chief Judge.

text:
    Perry JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-663.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Sept. 6, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

Defendant, Perry Johnson, was informed against for (1) burglary, (2) attempted grand larceny, (3) battery, and (4) assault, tried by jury and found guilty on all four counts.

For his first point on appeal, Johnson argues that the trial court erred in denying his motion for mistrial where the prosecutor sought to impeach the credibility of a key defense alibi witness with evidence of prior specific criminal convictions.

The credibility of a witness may be impeached by evidence of prior criminal convictions and ordinarily the nature of the conviction used to impeach is not permitted to be disclosed to the jury. See Fulton v. State, 335 So.2d 280 (Fla.1976). However, an exception to this rule is where the conviction is for perjury because such a conviction has greater weight against the credibility of a witness than any other crime. See Section 90.08, Florida Statutes (1975) and Ward v. State, 343 So.2d 77 (Fla.2d DCA 1977). As the court in Ward, supra, at 78 pointed out:

“It is interesting to note that prior to amendment of Section 90.08 by the 1971 Legislature, any person who had been convicted of perjury was barred from testifying as a witness in any court proceeding. In light of this history and the unqualified language of the present version of Section 90.08, we believe the legislature intended to allow perjury to remain in a unique category. The legislature must have determined that a prior perjury conviction particularly affected the credibility of a witness and should be revealed to the jury.”

In the instant case the prosecutor on cross-examination eventually elicited testimony from the alibi witness to the effect that he had been previously convicted of knowingly giving false information to a law enforcement officer. Defendant Johnson contends that since the witness was not convicted for “perjury” in that the witness was not under oath at the time he gave the false information, the prosecutor violated the rule prohibiting disclosure of the nature of the conviction to the jury; therefore, the trial court should have granted his motion for mistrial. We cannot agree.

The crime of knowingly giving false information to any law enforcement officer, Section 837.05, Florida Statutes (1975), is found in the perjury chapter. See Chapter 837, Florida Statutes (1975). Although the false information is not rendered under oath, it still is a form of perjury. In addition, like all of other forms of perjury such a conviction has greater weight against the credibility of a witness than any other crime.

Johnson also argues that the prosecutor was required to produce the records of prior convictions if she desired to impeach the witness. An examination of the record demonstrates that the alibi witness eventually admitted to his prior conviction of giving false information to a police officer and, therefore, production of the record of his conviction was not necessary. Only when the witness denies the conviction must the prosecutor produce the record. See Section 90.08, Florida Statutes (1975) and Roberson v. State, 40 Fla. 509, 24 So. 474 (1898). Thus, this point lacks merit.

We also considered Johnson’s remaining points on appeal and conclude that reversible error has not been made to appear.

Affirmed.

      . “90.08 Witnesses; conviction of other crimes as disqualification. — No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime,.but his testimony shall be received in evidence under the rules, as any other testimony. Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.”


text:
    Forney B. STAFFORD, Appellant, v. Constance E. STAFFORD, Appellee.
    Nos. 77-234, 77-1146.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearings Denied Sept. 7, 1978.

      Edward C. Vining, Jr., Miami, for appellant.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and Burton Young and William L. Rogers, North Miami Beach, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla. 3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977); Stafford v. Stafford, 294 So.2d 25 (Fla. 3d DCA 1974); Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971).


author: LETTS, Judge.

text:
    LAKE GATEWAY MOTOR INN, INC., Associated Inns and Restaurants Company of America, Bruce W. Mylrea and William W. Perrett, Appellants, v. MATT’S SUNSHINE GIFT SHOPS, INC. and Ronald E. Dowdy, Appellees. Ronald E. DOWDY, Appellant, v. MATT’S SUNSHINE GIFT SHOPS, INC., Lake Gateway Motor Inn. Inc., a Florida Corporation, Bruce M. Mylrea, Individually, Associated Inns and Restaurants Company of America, an Ohio Corporation, William W. Perrett, Individually, Appellees.
    Nos. 77-1192 and 77-1211.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Rehearings Denied Sept. 7, 1978.

      Ernest J. Rice and James M. Spoonhour of Lowndes, Peirsol, Drosdick & Doster, P. A., Orlando, for appellants — Lake Gateway Motor Inn, Inc., Associated Inns & Restaurants Co. of America, Bruce W. Mylrea and William W. Perrett.
    John Motsinger, Jr. and Michael G. Williamson of Johnson, Motsinger, Trismen & Sharp, P. A., Orlando, for appellant — Ronald E. Dowdy.
    Melvin Pearlman, Winter Park, for appel-lee — Matt’s Sunshine Gift Shops, Inc.
   LETTS, Judge.

A major motel (and the individual defendants in the court below) here appeal an adverse money judgment in favor of the former operator of its, on the premises, gift shop, the jury award predicated upon a tortious interference by the motel of a business relationship between the former operator and his successor operator. The award likewise found a tortious interference of an advantageous business relationship between the motel and the former operator, such tort committed by the successor operator. We reverse.

The initial 15 year lease between the motel and the former operator required the latter to construct, operate and maintain a gift shop “at all times in a first class manner as befitting to a first class motel.” The lease provided for cancellation for cause, in the event of any default and also provided, in clause 10, for cancellation for any reason whatsoever, upon thirty days notice. Said latter provision stated in part:

10. At the option of the lessor this lease may be terminated upon one (1) month’s written notice to lessee with the following provisions for compensation to the lessee. .

The former operator ran the gift shop for approximately 16 months, but from the very first, innumerable alleged short comings and slip shoddings in the operation were cited by the motel, both orally and in writing. These culminated in a written cancellation of the lease, for cause, setting forth a myriad of violations running the gamut from the premises being “very dirty” all the way to hotel guests frequently being insulted by rude employees.

Thereafter, by letter, the former operator requested a reprieve, stating that many of the cited inadequacies had been corrected or were in the process of being corrected. Further discussions ensued, resulting in the motel agreeing to a “60 day trial period ending November 12,1974.” This trial period, contained in a letter, included a long list of instructions on how to satisfy the motel in its desire to maintain “a first class gift shop as a service to our guests and not as a profit center of the motel.” The same letter concluded as follows:

Please indicate by signing below and returning a copy to me if you are willing to live up to the above specifications of a “First Class Operation.” If you have any questions, please get in touch with me immediately.

The former gift operator refused to sign and never did so, however, he remained as lessee, largely unchallenged, for a further eight months, at which time the motel again terminated the lease, this time pursuant to clause 10, that is, the 30 day right to terminate, for any reason whatsoever. The motel in an exchange of letters also said:

We have exercised our right to terminate your lease for several reasons. While you have generally complied with the terms of our agreement, it has been our feeling that the shop could be operated in a more satisfactory manner to best serve the needs of the Sheraton’s guests. Specifically we have felt that improvements should have been made in regard to hours of operation and merchandise offered for sale.

Finally, amid the back and forth dialogue about the required reimbursements to the dismissed operator under the terms of the lease, if terminated without cause, the motel and the former operator arrived at the apparently uncontroverted figure of $12,-920.78, which was tendered to the former operator by cheek and duly cashed.

We first addressed ourselves to the question of the motel tortiously interfering with an advantageous business relationship between the former gift shop operator and his successor who took over the business.

To be actionable, tortious interference requires (1) the existence of an advantageous business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant, and (3) damage to the plaintiff as a result of the breach of the business relationship. Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971).

The tortious interference claimed here was that before the former operator received his final irrevocable notice of termination, he was trying to negotiate a sale of his gift shop operation to his successor, but that these negotiations collapsed because the motel was also talking to the same successor about how the latter could take over the gift shop by merely paying the sum to the motel that it, in turn, was required to pay the former operator pursuant to the “buy out” clause 10 of the lease, if same were terminated without cause.

Assuming the facts in the immediately preceding paragraph to be undisputed, we do not find any evidence that such a course of action by the motel was unjustified nor do we find any competent evidence that it interfered with any advantageous business relationship.

The motel had the unquestioned right to terminate the lease without any justification whatsoever and as such would have to have an equally unquestioned right to talk to prospective successors both before and after announcing the termination. The evidence only shows that the motel spoke to the successor before termination, citing as the initial cost to the successor, the sum necessary to pay off the former operator under the terms of the “buy out.” We see nothing wrong with this. To suggest that any landlord is not justified to negotiate for a new tenant before exercising an unbridled right to evict an old one would defy all logic and create commercial chaos. Had the successor operator definitely arranged to pay his predecessor $75,000 only to have the motel tell him, “Don’t pay that, we’ll give it to you for $13,000.00,” then we might be otherwise disposed. However, there was no evidence of any such agreement between the two operators, nor any evidence to show that the motel even knew the former operator was trying to make such an agreement. Further, the lease specifically prohibited the former operator from any assignment thereof without consent.

Moreover, there is also no evidence that an advantageous business relationship ever actually existed between the former operator and his successor. We are aware that a valid advantageous business relationship may exist without the presence of an actual enforceable contract. Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976). However, there must be some attendant legal rights. Symon v. J. Rolfe Davis, supra. We do not find any evidence of any legal rights in existence between the two operators. A mere offer to sell a business which the buyer says he will consider, does not by itself give rise to legal rights which bind the buyer or anyone else with whom he deals.

As such there is no proof that the actions of the motel were the proximate cause of the former operator failing to make a deal with his successor. Seaway Yacht Sales, Inc. v. Brunswick Corporation, 242 So.2d 192 (Fla. 3d DCA 1970).

Passing next to the alleged tortious interference by the successor operator of an advantageous business relationship between the motel and the former operator, we likewise find no evidence to sustain such.

It is true that the relationship was advantageous to the former gift shop operator since he was showing a small profit, but we can not find the successor’s behavior to be actionable. Assuming all alleged actions of the successor were as bad as the appellee paints them, (although this is disputed) said successor went to the motel and solicited a take over of the gift shop, having heard it was to be available. Such competition seems to us to be par for the course in the free enterprise system. Can not the IBM salesman solicit this court to change over from a Xerox copier? Of course he can, unless he suggests to us that we violate a contract with Xerox in so doing.

In the case at bar, there is no proof that the successor operator sought to persuade the motel to break a contract or strip his predecessor of some legal rights. The lease had a 30 day cancellation clause for any reason whatsoever and under the terms of the new agreed changeover the new operator was to pay all sums due to his predecessor under clause 10. Ergo, he was to personally ensure that the former operator did, in fact, receive all the legal rights that he had coming, before the new operator could take over.

Moreover, we question if the relationship was mutually advantageous. The stated purpose of the motel was to have a gift shop as a service to its guests, and the guests were complaining mightily about the service. As was stated in the Seaway v. Brunswick case, supra,

. there is ample, undisputed evidence as to both personality clashes and business problems to justify [motel] in cancelling the contracts. There was evidence that these problems had been resolved, but that does not negate their existence in the first place, nor does such evidence, even when combined with negotiations between [motel] and another [gift shop operator] rise to the level of showing bad faith or willfulness which was the substance of [the] allegations in the complaint.

We therefore conclude that the lower court erred in failing to direct a verdict in favor of all the defendants and also obviously erred in permitting the issue of punitive damages.

Likewise, if the underlying tort which forms the basis for a civil conspiracy is not proved, then there can be no recovery for the alleged conspiracy itself. See Robertson v. Industrial Insurance Company, 75 So.2d 198 (Fla.1954).

Finally we are of the view that our opinion successfully disposes of the cross appeal.

THIS CAUSE IS REVERSED AND THE CASE REMANDED FOR THE ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and MOORE, J., concur.

      . The successor operator sought out the motel about the availability of the shop, not vice versa.

      . The lease with the successor provided for essentially the same rent.


text:
    Shelley ARTHUR and Lillian Arthur, his wife, Appellants, v. A. Jay CRISTOL, Trustee, Appellee.
    No. 77-1923.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Sept. 6, 1978.
    Donald S. Rose, Miami, for appellants.
    Steven Mishan, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Jordan v. Sayre, 24 Fla. 1, 3 So. 329 (1888); Bullock v. Alford, 192 So.2d 512 (Fla. 1st DCA 1966).


author: KEHOE, Judge.

text:
    Helen Louise ALTERMAN, Appellant, v. Sidney ALTERMAN, Appellee.
    No. 77-1466.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Sept. 6, 1978.
    Hilton R. Carr, Jr., and L. J. Cushman, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Harold L. Ward, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this interlocutory appeal from an order of the trial court granting appellee’s, defendant below, motion to quash a notice to produce documents at the taking of his deposition. We affirm.

Appellant and appellee were granted a divorce on November 13, 1963. At that time appellant was awarded $600 per month alimony. On September 21, 1976, appellant filed a petition for modification seeking an increase in the alimony award from $600 to $2000 per month. Pursuant to that action, appellant served appellee with a notice to produce certain documents relating to his financial status. Appellee filed a response to the petition and a motion to quash the notice to produce. On June 2, 1977, the trial court entered an order granting appel-lee’s motion to quash. From this order appellant appeals.

Appellant’s basic point on appeal is that the trial court erred in entering the order granting appellee’s motion to quash the notice to produce.

In support of her position, appellant relies upon Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967), and Parker v. Parker, 182 So.2d 498 (Fla. 4th DCA 1966). In our opinion, the Orlowitz and Parker cases are inapplicable to the facts of the instant action. In both of those cases, the discovery sought related to the many facets of the financial matters pertaining to an original divorce action, whereas, in the instant case the sole issue before the trial court was the propriety of an increase in the amount of appellant’s alimony which had been awarded approximately 14 years earlier in the original divorce proceeding between the parties. In the instant action, appellee responded unequivocally to appellant’s petition that he was financially able to pay the increase in alimony sought by appellant. Based on the record, neither the question of appellee’s ability to pay nor the concerns catalogued in Parker, at 500-01, are present. The only question is whether appellant is entitled to an increase in her alimony payments.

As'stated by the Supreme Court of Florida in Orlowitz, at 98, a trial court possesses broad discretion in granting or denying motions in discovery matters. The Court went on to say that “[tjhere are no doubt many instances in which a court should exercise its power to protect a party against an unwarranted disclosure of the details of his financial holdings.” In our opinion, based on the record before us, the trial court did not abuse its discretion in entering the order appealed; therefore, it is affirmed. See Fla.R.Civ.P. 1.280(c). See also Ortiz v. Ortiz, 194 So.2d 38 (Fla. 3d DCA 1967).

Affirmed.


text:
    Annie Mae CONNER, Appellant, v. STATE of Florida, Appellee.
    No. 77-631.
    District Court of Appeal of Florida, Fourth District.
    July 19, 1978.
    Rehearing Denied Sept. 13, 1978.

      Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

A mother, adjudged guilty of the manslaughter slaying of her son by use of a firearm, here appeals because the trial judge refused to give a jury instruction on “defense of home.” We affirm.

The mother and her mentally defective son shared living quarters. At trial she claimed he “pushed her down,” threatened to kill her and she did not intend the shot fired to strike him. The state presented evidence that the son was outside the house apologizing to his mother when the gun was discharged.

The jury was given a murder two instruction along with manslaughter, aggravated battery, aggravated assault, battery and assault. Instructions on justifiable and excusable homicide were also given, as was avoiding use of deadly force and finally retreat. However, the court refused to instruct on defense of home, because “both parties, according to the evidence, legally lived in the home and the- court would rule [it] to be bad law to allow either party to stand and not retreat.” We agree with the trial judge.

The defense of home instruction, here not given, reads in part as follows:

One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony. Fla.Stnd. Jury Instructions p. 64.

The retreat instruction which was given reads:

If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm, (emphasis supplied) Fla.Stnd. Jury Instructions p. 64.

In the case at bar we hold this latter instruction quoted, to be sufficient to meet the ends of justice especially in view of the quotation above emphasized.

Almost every jurisdiction accepts the “castle doctrine,” (see 26 A.L.R.3rd 1296, and 12 Wake Forest L.Rev. 1093), which is based on the premise that a man’s home is his castle, where he may stand his ground and not retreat. As the nineteenth century case of Jones v. State, 76 Ala. 8 (1884) asked rhetorically: “whither shall he flee and how far, and when may he be permitted to return.” In effect, he or she is already “at the wall.”

Notwithstanding the foregoing, the rationale, of the “castle” doctrine appears to us to be in immediate trouble when it is expanded and applied among members of a family, all lawfully on the premises and all lawfully claiming the home as their ultimate sanctuary. See Watkins v. State, 197 So.2d 312 (Fla.4th DCA 1967). The castle doctrine is of ancient origin and “. in its original applications it doubtless had in view only attacks from external aggressors . . . Watts v. State, 177 Ala. 24, 59 So. 270, 273 (1912). Nevertheless many jurisdictions have expanded it to permit its use when brother is against sister and mother against son. (See 26 A.L.R.3rd 1296). Regretfully one such court is our own and while no other Florida decision on the subject is recorded, we have twice so expanded the doctrine. See Watkins v. State, 197 So.2d 312 (Fla.4th DCA 1967) and Stevenson v. State, 285 So.2d 61 (Fla.4th DCA 1973).

From this expanded version of the castle doctrine we now recede, for it appears to us that, where both the antagonist and the assailed are legal occupants of the same “castle,” neither one having the legal right to eject the other, the defense of home instruction need not be given.

We agree with a recent law review author, that human life is sacred and that due regard for it far outweighs any indignity or cowardice involved in having to retreat from one’s own family.

It is a matter of common knowledge that a majority of all homicides are committed by close relatives and friends, many of these killings occurring in the home. Edwards, Murder & Gun Control, 18 Wayne L.Rev. 1335 (1972). This being so, we cannot but agree with the dissent in Commonwealth v. Johnston, 438 Pa. 485, 490, 263 A.2d 376, 381 (Pa.1970) wherein the judge remarked that he “would not adopt a rule of law which more easily justifies the taking of a human life.” To us the saving of lives is the ultimate goal for law enforcement officers and the courts to achieve. Accordingly we see no reason why a mother should not retreat from her son, even in her own kitchen. Such a view does not render her defenseless against a member of her family gone berserk, because the instruction on retreat, first above quoted, concludes, “but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.” With that instruction, we certainly have no quarrel and it was given in this case.

We find no merit in the other point on appeal.

AFFIRMED.

DAUKSCH, J., and BLACK, SUSAN, Associate Judge, concur.

      . Acknowledgment is made to Rachel V. Lee author of the note “A Further Erosion of the Retreat Rule in North Carolina,” 12 Wake Forest L.Rev. 1093, for some of the material used in our opinion.


author: HENDRY, Judge.

text:
    Ronny A. ZAMORA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2566.
    District Court of Appeal of Florida, Third District.
    July 20, 1978.
    Rehearing Denied Sept. 6, 1978.

      Ellis Rubin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Sp. Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Ronny A. Zamora, was charged, by way of a four count indictment, with first degree murder, burglary of a dwelling, possession of a firearm while committing a felony, and robbery. To those charges, Zamora entered a plea of not guilty, indicating that he would rely on the defense of insanity. At the conclusion of his trial, the jury returned verdicts of guilty on all four counts of the indictment.

Zamora was subsequently adjudicated in accordance with the verdicts and sentenced as follows: as to count I, first degree murder, Zamora was sentenced to a term of life imprisonment, with credit for time served in the Dade County Jail and parole eligibility in twenty-five years, pursuant to Section 775.082(1), Florida Statutes (1977); as to count II, burglary, he was sentenced to twenty-five years in the state penitentiary; as to count III, possession of a firearm, sentence was imposed at three years imprisonment; and as to count IV, robbery, Zamora was sentenced to a term of twenty-five years. All sentences were to run concurrently.

From the judgment of conviction and sentences, Zamora has taken this appeal raising seven points. We shall discuss each point in the order raised by appellant in his brief, taking the liberty to rephrase those points where proper.

POINT I

WHETHER THE TRIAL COURT ERRED IN GRANTING IN PART THE STATE’S MOTION IN LIMINE THEREBY EXCLUDING CERTAIN VOIR DIRE INQUIRIES, TESTIMONY, EVIDENCE AND CROSS-EXAMINATION.

At trial, Zamora’s insanity defense was based upon “involuntary subliminal television intoxication.” On appeal, Zamora contends that certain rulings of the trial judge limiting the scope of defense counsel’s inquiry into the area of television’s effect upon soeiopathic children effectively frustrated his insanity defense. In particular, appellant argues that the trial judge committed reversible error by failing to allow psychologist Dr. Margaret Hanratty Thomas to testify at trial on the effect of television violence upon adolescent viewers. We are not of the opinion that the court erred in granting the state’s motion in li-mine thereby limiting inquiry into television and its effects on children.

In Florida, the test for insanity is the so-called M’Naghten Rule or “right and wrong” test. That is, a person is legally insane when he is precluded by mental disease from distinguishing between right and wrong at the time of the act. Wheeler v. State, 344 So.2d 244 (Fla.1977); Perry v. State, 143 So.2d 528 (Fla. 2d DCA 1962). Irrestible impulse is not recognized as a defense in Florida. Wheeler v. State, supra; Witt v. State, 342 So.2d 497 (Fla.1977). Likewise, diminished capacity is not recognized as a defense, unless a defendant’s capacity is so diminished that he cannot distinguish right from wrong pursuant to the M’Naghten Rule. Bradshaw v. State, 353 So.2d 188 (Fla. 2d DCA 1977); Camp v. State, 149 So.2d 367 (Fla. 2d DCA 1963).

Based upon the law of insanity, as established in this state, the trial judge correctly limited the evidence of insanity to the M’Naghten standard. Sub judice, as brought out through proffer, Dr. Thomas’ testimony would have been directed to the effect of television on adolescents, generally. She would have been, however, unable to testify that watching violent television programs to excess affects an individual to the extent that said individual would not be able to distinguish between right and wrong under the M’Naghten test. Her testimony, therefore, would not have been relevant to the proceedings.

A party is entitled to present evidence upon the facts that are relevant to his theory of the case, so long as that theory has support in the law. Steiger v. Massachusetts Casualty Insurance Co., 273 So.2d 4 (Fla. 3d DCA 1973). Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material to the case. Zabner v. Howard Johnson’s, Inc. of Florida, 227 So.2d 543 (Fla. 4th DCA 1969). The only theory of the case that had support in the law was insanity, based upon the M’Naghten standard. Testimony that would not have tended to prove or disprove insanity was properly excluded, as being irrelevant. Dixie-Bell Oil Company, Inc. v. Gold, 275 So.2d 19 (Fla. 3d DCA 1973). As Dr. Thomas’ testimony was not relevant as to the issue of insanity, it was properly excluded.

Appellant has additionally argued that he was unduly limited in examining those experts who were permitted to testify at trial. The record, however, does not support this allegation of undue limitation. In those instances where defense counsel was limited in his questioning, such limitation was imposed on the basis of relevancy in light of the M’Naghten standard.

Accordingly, appellant’s point I is rejected.

POINT II

WHETHER THE TRIAL JUDGE ERRED, DURING VOIR DIRE, IN PRECLUDING DEFENSE COUNSEL FROM INQUIRY INTO THE POTENTIAL JURORS’ VIEWS ON TELEVISION AND ITS EFFECT ON CHILDREN, AS WELL AS THEIR PARTICULAR VIEWING HABITS.

While appellant concedes that the trial judge has wide discretion in setting the boundaries of voir dire examination of prospective jurors, it is defense counsel’s contention that sub judice, the trial judge abused his discretion in limiting the voir dire examination so as to preclude any inquiry into the viewing habits of the prospective jurors, as well as an inquiry as to their attitude toward the defense of “involuntary subliminal television intoxication.” Appellant contends that based upon this limitation, counsel was precluded from intelligently exercising his peremptory challenges resulting in possible undiscovered prejudice on the part of the jury.

Needless to say, a reversal based upon a limitation in vóir dire must be based upon an abuse of the trial judge’s discretion. Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla. 1st DCA 1960). In the absence of demonstrable prejudice, not grounded upon mere speculation, reversal is not proper. Foley v. Revlon, Inc., 200 So.2d 627 (Fla. 3d DCA 1967).

A review of the record discloses that defense counsel was not precluded from inquiring as to whether or not the prospective jurors watched television, whether or not said prospective jurors-had heard of or had formed any opinions as to the defense of insanity caused by “television intoxication,” and whether or not the prospective jurors believed the defense of insanity to be a gimmick. The record reflects that defense counsel was prohibited from asking the jurors questions concerning their personal viewing habits. This final limitation did not even approach an abuse of the trial judge’s discretion warranting reversal. Mizell v. New Kingsley Beach, Inc., supra.

The voir dire, itself, was extensive, encompassing over two days. The purpose of voir dire is to select a fair and impartial trier of fact. Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967). Appellant does not contend that the jury was partial or unfair, he merely contends that the two day voir dire was so limited so as to prohibit defense counsel’s inquiry as to any possible partiality of the prospective jurors. The record, however, does not sustain appellant’s contention and no abuse of the trial judge’s discretion has been shown.

Therefore, we must reject appellant’s point II.

POINT III

WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY ON THE DEFENSE OF INSANITY AS TO COUNTS II, III AND IV, AND IN FAILING TO PROPERLY INSTRUCT THE JURY ON THE LAW OF INSANITY AS TO COUNT I.

As was stated at the outset, appellant’s defense to the charges was insanity attributed to the “prolonged, intense, involuntary, subliminal television intoxication.” During the charge conference, the trial judge agreed with the state’s oral motion “to strike the insanity defense as to all but the first degree murder count” because “there was absolutely no testimony adduced to insanity with reference to anything but the count of first degree murder.” As a result, the jury was not charged that Zamora could be found not guilty by reason of insanity as to counts II, III and IV of the indictment.

It is our opinion that the trial judge was correct in refusing to instruct the jury on insanity as to counts II through IV. While there was ample testimony elicited evaluating young Zamora as a sociopath, suffering from a lack of conscience and a personality or character defect, there was no testimony to the effect that Zamora was insane, pursuant to M’Naghten standards, with the one exception being defense psychiatrist Dr. Gilbert. Dr. Gilbert testified that at the moment Zamora fired the fatal shot, he did not know right from wrong. He also testified, however, that just prior to and after the firing of the gun, Zamora was not legally insane. As opined by Dr. Gilbert, Zamora’s alleged insanity lasted no more than two to three seconds.

Accordingly, the trial judge was correct in instructing the jury on insanity as to count I of the indictment, first degree murder. Likewise, the judge was correct in denying an insanity instruction as to counts II through IV, in that there existed a total absence of testimony to the effect that the defendant was insane, pursuant to M’Naghten, when he committed the acts for which he was charged in counts II through IV.

Appellant further argues that the trial judge erred in giving his own instruction on insanity pursuant to count I in light of Wheeler v. State, 344 So.2d 244 (Fla.1977). It is appellant’s contention that the Wheeler decision mandated that a trial judge, in instructing a jury on insanity, conform to the standard jury instructions as adopted by the Florida Supreme Court in In re Standard Jury Instructions In Criminal Cases, 327 So.2d 6 (Fla.1976). He further contends that it was reversible error for the trial judge to offer his own instruction on insanity in lieu of the standard instruction.

Inherent in appellant’s argument is the proposition that our Supreme Court, in Wheeler, opined a new test for insanity, superseding the M’Naghten standard. Appellant now claims that diminished capacity is a separate defense to a crime. We reject appellant’s proposition. The Wheeler decision held that diminished capacity is a defense to a crime only when the defendant’s capacity is so diminished to the point that the defendant cannot distinguish right from wrong, pursuant to the M’Naghten rule. Bradshaw v. State, 353 So.2d 188 (Fla. 2d DCA 1977); see also Camp v. State, 149 So.2d 367 (Fla. 2d DCA 1963). It was therefore correct for the trial judge to refuse to instruct the jury that diminished capacity, in and of itself, is a defense to a first degree murder charge.

In that the text of the trial judge’s charge to the jury on insanity was substantively identical to the Florida Standard Jury instruction on the same subject, it is our opinion that any error on the trial judge’s part for failure to charge the jury in accordance with the Wheeler mandate was harmless error. We reach the above decision for the following reason. As previously mentioned, only Dr. Gilbert testified that Zamora was insane at the time of the shooting and his testimony was not couched in terms of diminished capacity. Rather, Dr. Gilbert testified that Zamora did not know right from wrong. No other expert testified that the defendant was insane or that his capacity was so diminished as to render him oblivious of right from wrong. This made harmless the trial judge’s failure to mention in his charge that under certain circumstances, diminished capacity might amount to insanity. Wheeler, supra.

In sum, the trial judge was correct in refusing to instruct the jury on insanity as to counts II through IV and did not commit reversible error in his insanity charge to the jury as to count I.

POINT IV

WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO GRANT APPELLANT’S “EXTRAORDINARY AMENDED MOTION FOR NEW TRIAL” AFTER THE COURT HAD MADE A FINDING THAT THE STATE ATTORNEY’S OFFICE HAD VIOLATED THE RULE OF SEQUESTRATION.

On the third day of trial, following the conclusion of voir dire and the acceptance of the jury, witnesses who were to testify at trial were sworn and admonished that they were not to speak with anyone, except their attorneys, on matters relating to their impending testimony. State witnesses David Picciolo, Timmy Cahill and Alan Cohen were bound to the “rule.” That night, the Assistant State Attorney assembled in the offices of the State Attorney the above witnesses. The alleged purpose of the meeting was for Cohen, a former friend of defense witness Tina Steiner, to call Steiner and attempt to ascertain whether or not she had knowledge of the existence and/or whereabouts of the gun used to slay the victim and certain jewelry stolen from the deceased’s home.

The state thereupon caused two telephone conversations between Cohen and Steiner to be recorded, after first rehearsing Cohen as to what he was supposed to say. Following the taping of those conversations, the tapes were played to the three state’s witnesses, investigator O. B. Bos-worth and Sergeant Duncan, who had been likewise sworn as a witness and bound by the sequestration rule.

Appellant contends that the recording and replaying of these conversations violated the court imposed rule, as said conversations were filled with “references to the ongoing trial and replete with references to testimony expected to be elicited in the defendant’s case.” Appellant’s counsel argues that by the above violation, the prosecution was able to impugn the veracity of Steiner when she took the stand for the defense and impeach her credibility before the jury. Counsel claims that the “rule” violation deprived Zamora of the “unfettered testimony of a crucial witness to his insanity defense” and thus deprived him of a fair and impartial trial.

The purpose of the sequestration rule is to avoid the coloring of a witness’s testimony. Ali v. State, 352 So.2d 546 (Fla. 3d DCA 1977). Sub judice, nothing in the tape recordings heard and discussed by the witnesses related to anything testified to in court. The taped conversations primarily concerned the location of the murder weapon, a fact not established before the jury.

There is no doubt that the state violated the sequestration rule and is admonished by this court for this impropriety. Nevertheless, the trial judge, in his discretion, determined that the information elicited during the violation of the “rule” in no way prejudiced appellant. Accordingly, the trial judge denied Zamora a new trial.

It goes without saying that the imposition of sanctions (if any) for the violation of the sequestration rule is well within the sound judicial discretion of the trial judge. See Griffin v. State, 124 So.2d 38 (Fla. 1st DCA 1960). Sub judice, the trial judge held that appellant occasioned no prejudice from the rule violation. In that appellant has failed to demonstrate actual prejudice to his case, we find no abuse of the trial judge’s discretion in refusing to impose sanctions, in the form of a new trial.

Appellant’s point IV is therefore rejected.

POINT V

WHETHER THE TRIAL JUDGE ERRED IN ADMITTING CERTAIN PHOTOGRAPHS OF THE VICTIM IN A “GRUESOME AND GORY STATE AFTER FIVE DAYS OF DECOMPOSITION” NOTWITHSTANDING APPELLANT’S WILLINGNESS TO STIPULATE TO THE VICTIM’S DEATH, THE CAUSES AND CIRCUMSTANCES SURROUNDING THE DEATH, AND THE POSITION IN WHICH THE VICTIM’S BODY WAS FOUND.

Appellant contends that the trial judge abused his discretion in admitting into evidence certain photographs of the victim, as said photographs were allegedly so inflammatory and prejudicial as to deprive appellant of a fair trial. Appellant further contends that the photographs had little or no relevancy in that the cause of death had been established, the insanity defense admitted the defendant’s killing of the victim and appellant had previously offered to stipulate to the various circumstances surrounding the death of the victim, including the position in which the body was found.

The admission into evidence of photographs of a deceased victim is within the discretion of the trial judge. Swan v. State, 322 So.2d 485 (Fla.1975); Allen v. State, 340 So.2d 536 (Fla. 3d DCA 1976). Relevancy, of course, is the controlling factor in the admission or denial of photographic evidence. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975).

Sub judice, the photographs were relevant in that they corroborated the testimony of certain witnesses, including the Assistant Medical Examiner of Dade County, as to the cause of death, the location and characteristics of the wounds, and the position of the body in reference to the physical make-up of the room. See Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972); Tomlin v. State, 167 So.2d 745 (Fla. 2d DCA 1964). Notwithstanding appellant’s offer to stipulate to the murder, the position of the body, etc., the testimony of the witnesses, when combined with the corroborative photographs, aided the state in showing that Zamora’s slaying of his elderly victim was of premeditated design, an essential element of first degree murder. Pressley v. State, supra. Obviously, appellant was not prepared to stipulate to premeditation, relieving the state of its burden of proof.

Lastly, with respect to the photographs under attack, it is our opinion that said photographs do not portray an exceptionally gruesome, gory or shocking view of the deceased. The pictures simply exhibit a body with a puncture mark wherein a fatal bullet had entered. We emphasize the word “exceptionally,” for, understandably, no picture of a decomposing corpse is ever aesthetically appealing to normal senses. Aesthetic appeal is, however, not the test in determining whether to reject or accept evidence of this kind. Rather, the test is that the photographs must first be relevant and not “so inflammatory as to create an undue prejudice in the minds of the jury and detract them from a fair and unimpas-sioned consideration of the evidence.” Leach v. State, 132 So.2d 329 (Fla.1961) at 332. We are of the opinion that the photographs were relevant to the state’s case and were not inflammatory to the point of prejudicing the minds of the jury.

We find no error in appellant’s point V.

POINT VI

WHETHER THE TRIAL JUDGE ERRED IN NOT PERMITTING FULL CROSS-EXAMINATION OF A PROSECUTION WITNESS DIRECTLY RELATING TO IMPEACHMENT.

Appellant contends that he was denied full cross-examination of a prosecution witness, William Rinehart, whose testimony linked Zamora and co-defendant Darrell Agrella to the stolen property. He argues that the limitation imposed on cross-examination prohibited counsel for the defense from eliciting testimony that would have impeached the witness’s credibility before the jury, i. e., that the witness had been involved in the crime to the extent of possessing some of the stolen goods and had received consideration in the past for his testimony.

In light of all the cumulative testimony presented and the defendant’s confession to the crime, it is our opinion that the witness’s testimony was in no real sense prejudicial to the defense. Accordingly, any limitation imposed by the trial judge on cross-examination must, at best, be deemed harmless error. Girtman v. State, 270 So.2d 380 (Fla. 3d DCA 1972); Section 59.041, Florida Statutes (1977).

Point VI is hereby rejected.

POINT VII

WHETHER THE TRIAL JUDGE ERRED IN RESPONDING EX PARTE TO A REQUEST MADE BY THE JURY.

Appellant’s final attack on the proceedings is directed to an allegedly ex parte response made by the trial judge to the jurors’ request to view themselves on television during the nightly replay of trial proceedings of the day. It is appellant’s contention that the judge had the duty to have both the prosecution and defense present and discuss the request with them prior to communicating his response to the jury pursuant to Ivory v. State, 351 So.2d 26 (Fla.1977). Appellant argues that his counsel’s absence from participating in the discussion of the action to be taken on the jury’s request amounted to reversible error.

The record, however, reveals that defense counsel was present when the trial judge responded to the jury’s request in open court, denying same. Though counsel did not have an opportunity to discuss with the trial judge the request of the jury, we do not believe that the open court response of the judge amounted to an ex parte communication. Further, the Ivory case, which holds that ex parte communications of a trial judge to the jury in response to jury requests amount to harmful error, appears to have been based upon Fla.R.Crim.P. 3.410. Said rule requires the presence of opposing counsel when a response is made to a jury request by the trial judge during deliberation. Such was not the case here, as the jury’s request to view themselves on television was made long prior to final deliberation.

Point VII is, therefore, without merit.

In conclusion, we have carefully reviewed all of appellant’s points on appeal in light of the record, briefs submitted, oral arguments of counsel and controlling principles of law. It is our opinion that no reversible error has been shown and that Ronny Zamora’s conviction and sentences must be affirmed. It has often been'stated that a defendant is not entitled to a perfect trial, but is entitled to a fair trial. We are convinced that Zamora did receive a fair trial.

One final comment need be made. In the concluding pages of defense counsel’s lengthy brief the following language appears: “In the case at bar, television was on trial . . . and the trial was on television.” Such was simply not the case. While the proceedings were televised (and much covered by the media, generally), television was not on trial; Ronny Zamora was on trial. Zamora was on trial for the senseless slaying of an elderly woman. His defense was not guilty by reason of insanity induced by “involuntary subliminal television intoxication” and a jury, failing to accept that defense, found Zamora guilty on all charges. The proceedings below in no way represented a forum for the discussion of the relative pros and cons of the television media. Stated simply, this was a murder trial, and it is to the trial judge’s credit that he confined the testimony and evidence to the relevant issues. Anyone failing to comprehend the true nature and purpose of these proceedings suffers from a total misconception of our criminal justice system.

The judgment and sentences appealed are affirmed.


text:
    Rusty CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1779.
    District Court of Appeal of Florida, Second District.
    July 21, 1978.
    David A. Demers & Susan S. Demers, of Law Offices of Demers & Demers, St. Pe-tersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. As to Point One see State v. Crum, 323 So.2d 673 (Fla.3d DCA 1975). As to Point Two see United States v. Haynes, 554 F.2d 231 (5th Cir. 1977).

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


text:
    George RITTENHOUSE, Appellant, v. Bert LEDER, Appellee.
    No. 77-2368.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 6, 1978.
    Nachwaiter, Christie & Falk and Jay M. Levy, Miami, for appellant.

      Shupack & Weisser and Michael H. Weis-ser, North Miami Beach, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (1947). See also City Builders Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77 (1925); 7 Fla.Jur. “Contracts” § 47 (1956).


author: BERANEK, Judge.

text:
    James W. WELLS, Appellant, v. Jordan THORN d/b/a Acreage Associates, Appellee.
    No. 76-2567.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1978.
    Rehearing Denied Sept. 13, 1978.
    • Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso & Mosley, P. A., Cocoa Beach, for appellant.
    Charles A. Goff of Casoria, Goof & Blo-stein, P. A., Fort Lauderdale, for appellee.
   BERANEK, Judge.

Defendant appeals a final judgment entered November 3, 1976. The plaintiff cross-appeals. The parties will be referred to as they appeared in the trial court.

This is a breach of contract case. The parties were real estate brokers who cooperated in the sale of a tract of land. Defendant had the last dealings with the buyer and received a $15,000.00 commission. Plaintiff sued for a portion of the $15,-000.00 alleging a stated oral contract to split the commission on a 50/50 basis. Defendant denied the existence of the contract and the case was tried non-jury. We reverse.

At trial both parties testified that there was actually no agreement to split the commission on any basis whatsoever. The plaintiff presented the testimony of an expert over defendant’s objection. The expert stated that when brokers cooperate in a sale there is a custom that they will split the commission 50/50 if no formal agreement is made. The trial court entered final judgment for plaintiff awarding $5,000.00 or one-third of the total $15,000.00 commission.

Defendant contends the trial court erred in granting recovery on an implied contract when the pleadings did not allege such a theory. It is also asserted that the proof was insufficient to prove any contract either express or implied. The plaintiff has cross-assigned error and contends the court erred in awarding one-third rather than one-half of the total commission.

The theory of the plaintiff’s case as asserted in the complaint was that of an express oral contract to split a commission on a 50/50 basis. The proof at trial did not come close to supporting this theory. Indeed, plaintiff does not even contend on appeal that there was evidence of a specific agreement to split the commission 50/50. Instead plaintiff says that there was a missing term in an implied contract and that this can be supplied by the expert’s opinion that brokers customarily split commissions 50/50 when they make no other agreement. Under these circumstances, the trial court erred in finding an implied contract between the parties to split the commission on a one-third/two-thirds basis. There was absolutely no support in the pleadings or evidence for this finding. The trial court should not have found a one-third/two-thirds implied contract based on a complaint alleging only a specific and express 50/50 contract. Chandler v. Chandler, 330 So.2d 778 (Fla.1st DCA 1976). A contractual right may not be enforced unless proved by competent evidence. There was no such proof here. See, Rood v. Miami Air Conditioning Co., 193 So.2d 216 (Fla.3d DCA 1967), and Terrell v. Terrell, 344 So.2d 891 (Fla.4th DCA 1977). This is not a situation where issues not pled were tried by consent. Timely objections were made throughout. Final judgment below is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

CROSS and MOORE, JJ., concur.


text:
    Frances SEVERI, Appellant, v. Marie B. NEVILLE, Appellee.
    No. 77-617.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1978.
    Rehearing Denied Sept. 13, 1978.

      Robert M. Leen, Hollywood, for appellant.
    Stephen A. Longo of DeTardo & Longo, Hollywood, for appellee.
   LETTS, Judge.

The grantee named in an eleven year old executed and recorded warranty deed, here appeals a trial court decision to cancel and nullify the conveyance. We reverse.

Other than the fact that the daughter took her mother to a lawyer’s office, there is no evidence in the record to sustain the trial judge’s finding that the appellant/daughter exerted undue influence over her mother when the latter deeded her house to the former in 1966, retaining possession by means of a life estate set forth therein.

We have read the testimony carefully and, although the direct and cross-examination of the mother, at trial, reads like one of the double talk routines made famous by Abbott & Costello, even she (the mother) makes no such allegation. The total of her testimony is that she was in a state of shock over the death of her husband, trusted the grantee/daughter, and didn’t bother to read the instrument she signed in her lawyer’s office, with the daughter absent from the room, because she thought it was a will leaving everything to all three daughters. None of this testimony even attempts to prove undue influence exercised by the daughter named as grantee in the deed, nor is it sufficiently alleged in the Complaint.

By contrast, the daughter thus preferred, the lawyer (who was the mother’s choice) and a neighbor, all three testified without contradiction (other than the mother’s) that the mother knew full well she had deeded the property to the preferred daughter. The testimony of the neighbor, for example, is illuminating.

Q Okay. Did you have any conversations with Mrs. Neville on any of those occasions with respect to financial problems and/or the house?
A Except one thing, that she made the remark to me.
Q Who is “she”?
A Mrs. Neville told me in front of her daughter that she is the only one who helped.
Q Who is the only one that helped?
A Frances Severi, that helped with the bills and she made the statement that is why she put the deed in her name. This is what she told me.
Q Who told you that, ma’am?
A Mrs. Neville, in front of her daughter.
Q Told you what? I am sorry. I didn’t understand you.
A She said that only Frances deserves anything because she is the only one who helped her mother and put the deed on her name, Frances’.
Q Mrs. Neville put the deed into Frances’ name?
A Yes.
Q Okay. Was that sometime during the year 1966?
A That is right.
Q Okay. Did you happen to have a conversation with Mrs. Neville, say, approximately five years later, around 1971, in connection with the house or about the house?
A Well, in 1971, I do remember some trouble started at the house and I do remember one thing she said, that she will give $10,000.00 to her daughter after her death, if, you know, she signs the house back to her. That is all I know—

The foregoing testimony, substantiated by the lawyer and the preferred daughter, also negates the trial judge’s finding of no consideration. Love and filial affection is sufficient consideration in and of itself, (10 Fla. Jr. 104 citing cases) never mind all the. hotly disputed reasons as to why the preferred daughter paid the mortgage on this property for 8 years, paid off another loan on it and made capital improvements.

Lastly, even the appellee in her brief, admits that the trial judge made no finding of mental incompetence at the time the deed was executed. The ruling of the trial judge, speaks only of “a state of mental weakness” and inability to “understand the irrevocable nature of her act.” There is no recorded case that we can find which supports the proposition that a grantor may cancel a deed, because he or she was not aware of the inability to later demand a reconveyance. As was said in Parks v. Harden, 130 So.2d 626 (Fla. 2nd DCA 1961), citing from the Supreme Court in Travis v. Travis, 81 Fla. 309, 87 So. 762 (1921),

The instant case does not involve a condition of permanent disability or incapacity, but to the contrary, concerns a temporary condition of alleged lapse of mental awareness. Mere mental weakness will not authorize a court of equity to set aside a deed if it does not amount to inability to comprehend the effect and nature of the transaction AND IS NOT ACCOMPANIED BY EVIDENCE OF IMPOSITION OR UNDUE INFLUENCE. (emphasis, supplied) page 628.

This quote is most pertinent to the case now before us. There is no evidence of undue influence and no medical evidence as to the 1966 state of mind of the mother. Instead there is only her own testimony as to temporary inability to comprehend the nature of this particular conveyance because of her grief at the death of her husband three months before. Such is entirely insufficient even if unrebutted, never mind the fact that the lawyer’s testimony directly contradicts it, as does the neighbor’s and the preferred daughter’s.

There is most persuasive testimony to demonstrate that this case involves a mother who, with some urging from the other two children, years later, changed her mind and wanted the fee title to the house back. (She even offered $10,000 for it). We are not unsympathetic to her desire, but find no law in the realm of real estate conveyancing to support such Indian giving.

REVERSED AND REMANDED WITH INSTRUCTIONS TO VACATE JUDGMENT AND REINSTATE DEED.

DOWNEY, C. J., concurs.

CROSS, J., dissents without opinion.

      . However, she also signed a will, as well as a deed, on that same visit to the lawyer.


author: OTT, Judge.

text:
    Robert T. MILLER, d/b/a Landscapers Environmental Contractors, Appellant, v. Weston E. JUNG and Janice L. Jung, Husband and Wife, Appellees.
    No. 78-157.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.

      Charles J. Cheves, Jr., of Cheves & Rap-kin, Venice, for appellant.
    No appearance for appellees.
   OTT, Judge.

A landscaper received a check for an amount less than the account stated on his bill. The check had the words “LANDSCAPING PAID IN FULL” printed on the bottom left corner. On the top of the reverse side were handwritten the words “cashing of this check constitutes release and waiver of any lien.” Below this condition the payee typed the words “negotiated by named payees under protest and with reservation of all their rights” and negotiated the check.

The trial court ruled that receipt of a check so conditioned on its face required the payee to notify the drawer of the check that his acceptance was under protest or reservation of rights prior to negotiation.

We hold that Section 671.207, Florida Statutes (1977) precludes the conclusion reached by the trial court.

That section, in pertinent part, provides as follows:

Performance of acceptance under reservation of rights. A party who with explicit reservation of rights ... assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest” or the like are sufficient.

Section 671.207 is a part of the Uniform Commercial Code. The 1972 official text comments to § 1-207, promulgated as an aid to construction by the American Law Institute and National Conference of Commissioners of Uniform State Laws, provides in part that:

The section provides machinery for the continuation of performance along the lines contemplated by the contract despite a pending dispute, by adopting the mercantile device of going ahead with delivery, acceptance, or payment “without prejudice,” “under protest,” “under reserve,” “with reservation of all our rights,” and the like. All of these phrases completely reserve all rights within the meaning of this section. [Emphasis supplied.]

To require actual notification prior to negotiation would eviscerate the purpose of the section, which should allow a party to negotiate checks so conditioned on their face without gambling with his right to demand the balance due at a later time. Section 671.207, Florida Statutes (1977) in this instance frees up or minimizes impediments to the flow of commercial paper while reserving the rights of the immediate parties.

So far as our research shows this issue has not been directly addressed by an appellate court in Florida. Other courts, however, have reached a similar conclusion. See Scholl v. Tallman, 247 N.W.2d 490 (S.D.1976); Baillie Lumber Co., Inc. v. Kincaid Carolina Corp., 4 N.C.App. 342, 167 S.E.2d 85 (1969).

Accordingly, the trial court’s order granting a directed verdict is reversed and this cause remanded for further proceedings consistent with this opinion. This decision is not intended to foreclose consideration of all the surrounding facts and circumstances in determining whether or not the parties, in fact, reached an accord and satisfaction or full settlement.

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


text:
    Dr. Robert C. PYLE, Jr., M. D., Petitioner, v. Bruce TAYLOR and Diane Taylor, husband and wife, Respondents.
    No. KK-1.
    District Court of Appeal of Florida, First District.
    July 27, 1978.
    Rehearing Denied Sept. 8, 1978.
    Robert D. Bell of Fisher, Bell, Hahn, Winn & Rubel, P. A., Pensacola, for petitioner.
    Grover C. Robinson, Jr., W. H. F. Wilt-shire of Harrell, Wiltshire, Stone & Swear-ingen, Don J. Catón, Pensacola, for respondents.
   PER CURIAM.

Petitioner seeks certiorari review of an order of a judicial referee in medical liability mediation proceedings conducted pursuant to Section 768.44, Florida Statutes (1977). The hearing on respondents’ claim was concluded on March 16, 1978, within 10 months of the date the claim was filed. Thereafter, on April 5, 1978, and after 10 months had elapsed from the date their claim was filed, the respondents moved to disqualify the physician member of the panel, a Dr. Allen, because petitioner had been the physician on a medical liability mediation panel which had heard a claim against Allen and found no negligence. The judicial referee heard and granted the motion. Petitioner asserts the judicial referee and the panel were without jurisdiction to do anything but put their decision into writing and file it within 30 days of the hearing. Section 768.44(7), Florida Statutes (1977). We agree. Section 768.44(2)(g) provides a 10-day time limit within which the prospective panel members may disqualify themselves and within which the parties may challenge the panel members for cause. Since respondents failed to timely challenge Dr. Allen, they waived that right.

Moreover, Section 768.44(3) is clear that the subject matter jurisdiction of the panel terminated 10 months after the claim was filed. See Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978).

The petition for writ of certiorari is granted, and the judicial referee’s order of April 11, 1978 is quashed.

McCORD, G. J., and MILLS and ERVIN, JJ., concur.


author: CAWTHON, VICTOR M., Associate Judge.

text:
    Melody Rogers HOWELL and Terrell W. Howell, Appellant, v. Robert H. ALLEN, M.D., Appellee.
    No. II-378.
    District Court of Appeal of Florida, First District.
    July 27, 1978.
    Rehearing Denied Sept. 8, 1978.
    Roderic G. Magie and Louis K. Rosen-bloum of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for ap-pellee.
   CAWTHON, VICTOR M., Associate Judge.

The petitioners herein filed a medical malpractice claim against the respondent on June 3, 1977, and the respondent’s counsel accepted service of process. An answer was not filed until August 10, 1977.

Both counsel state that counsel for the petitioners agreed that the respondent should have additional time in which to file his answer, but the petitioners contend and this court agrees that the statutory requirement that the answers to Medical Malpractice Claims must be filed within 20 days is jurisdictional and that the failure to meet jurisdictional requirements can be raised at any point in the proceedings and cannot be waived by agreement of counsel, Latorra v. Patrick, 359 So.2d 463 (Fla. 4th DCA 1978).

Certiorari is granted, and the jurisdiction of the Medical Mediation Panel having terminated prior to its having conducted a hearing, the decision of the panel is hereby vacated.

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

      . § 768.44(l)(c), Florida Statutes.


author: BOYER, Judge.

text:
    Carl WASSERMAN, Petitioner, v. FLORIDA STATE BOARD OF ARCHITECTURE and Department of Professional and Occupational Regulation, Respondents.
    No. FF-82.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 8, 1978.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for petitioner.
    Gerald W. Weedon and James C. Rina-man, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, Dorothy Glisson; Stephen Marc Slepin of Slepin & Schwartz, Tallahassee, for respondents.
   BOYER, Judge.

Petitioner seeks review of the final agency action of the Florida State Board of Architecture (hereinafter Board) denying his application for registration to practice architecture in the State of Florida.

In October, 1973, the petitioner filed with the Board an application for registration to practice architecture in Florida, pursuant to Section 467.11, Florida Statutes 1973, which states:

“Admission without examination. — Hereafter no person shall be admitted to the practice of architecture in this state without an examination except that a certificate of registration may be issued upon filing of application and payment of the same fees as if qualified by examination to a person who meets the requirements of applicants for examination as set forth in § 467.08 and has passed a standard examination and holds a current certificate issued by the national council of architectural registration boards and who furnishes satisfactory evidence of continued honorable professional practice after the passing of such examination together with satisfactory evidence of his present ability and integrity.”

The requirements of Section 467.08, Florida Statutes 1973, are as follows:

“467.08 Rules Governing Examinations. —(l)(b) Any applicant for examination shall establish by satisfactory evidence to the board with his application that:
“1. He is twenty-one years of age;
“2. He is a citizen of the United States or has pending a declaration of intention so to become;
“3. He is of good moral character;
“4. He is a graduate of an accredited high school or has education equivalent thereto; and
“5. He is either a graduate of a school or college of architecture appearing upon the list of approved schools and colleges of architecture as adopted and published by the board in its rules, with graduation therefrom evidenced by a diploma setting forth the applicant’s degree, or has had training which shall be found by the board to be fully equivalent to such degree, and a minimum of one year of diversified training in offices of registered practicing architects.” '

Two and one-half years after petitioner applied, and several proceedings later, the Board entered an order denying his application because he did not hold a professional degree from an approved school or college of architecture or have the education and training found by the Board to be fully equivalent to such degree. Petitioner requested an administrative hearing. After the hearing, the hearing officer recommended that the Board enter an order denying the application. The Board then denied petitioner’s application. This petition for review followed.

In 1972, petitioner passed the standard examination offered by the National Council of Architectural Registration Boards and holds a current certificate issued by the National Council. Therefore, the parties agree that the only pertinent issue presented to this court is whether petitioner has complied with Section 467.08(l)(b)(5), Florida Statutes 1973.

Petitioner raises as his first point the question of whether Section 467.08(l)(b)(5) constitutes an unlawful delegation of legislative authority contrary to Article III, Section I of the Florida Constitution. We agree that it does and that the statute is unconstitutional.

We base our holding on the case of Husband v. Cassel, 130 So.2d 69 (Fla.1961). In that decision, the Florida Supreme Court had occasion to examine a similar statute concerning the certification of psychologists which stated in pertinent part:

“490.04 Certification.—
“(1) The Florida state board of examiners of psychology is empowered to grant certificates with the title ‘Psychologist’ to those entitled under the provisions of this chapter. Before granting any such certificate, the board shall require any applicant therefor to pass a representative assembled written, and an oral or practical examination in psychology or both such oral and practical examinations, to be given at such time and place and under such supervision as the board prescribes, and also to submit such references and documents as may be required by the board. The board is empowered to rate the applicant and its decision is final in any examination. Such applicant shall pay fees as specified in § 490.06, and shall satisfy the board that he:
(a) is of good moral character,
(b) is a citizen of the United States,
(c) has received a degree of doctor of philosophy with a major in psychology from a university approved by the board as maintaining satisfactory standards or an equivalent degree in a field of psychology from a similarly approved university.
(d) has had at least one year’s experience in the field of psychology, of a grade, character, and time distribution satisfactory to the board. * * * ” (Chapter 490, Florida Statutes (1959)) Concerning the constitutionality of that

statute, the Supreme Court stated:

“[1] An examination of this section reveals that the only limitations imposed by the legislature upon the board with reference to the examination to be given is that it must be on the field of psychology. This subject is extremely broad and the legislature has failed completely to define or delimit the field either expressly or by implication. As a consequence the board has it within its sole judgment and discretion to determine the nature and scope of the field to be encompassed in the examination determining applicants qualifications as psychologists. The board is thus authorized to examine without limitation or restraints and without benefit of legislative safe guards in the form of limitations.
“Section 490.04(l)(c) is objectionable for the same reason as that application to F.S. Section 490.04(1), F.S.A. All applicants according to this former section are required to obtain a degree of Doctor of Philosophy with a major in Psychology. This degree must be obtained from a university approved by the board. The legislature has failed to provide any standards to guide the board in its approval of a university. In fact the board is also empowered to determine what constitutes an equivalent degree in the field of psychology without limitations imposed by the legislature. It is thus evident that the board has the unbridled discretion to determine all qualifications of applicants as well as all requirements for the establishment of their competency in order to be certified as psychologists and to practice that profession in the state of Florida.
‡ ifc % * í}¡ :j«
“We are of the conclusion that F.S. Chapter 490, F.S.A. is unconstitutional in that it fails to sufficiently fix the standards to be applied and in effect delegates the application of the statute without sufficient limitations on the discretion of the appellant board.” (130 So.2d at pages 71 and 72) (emphasis supplied)

We find the reasoning of Husband equally applicable in this case. The statute in question here, Section 467.08(l)(b)(5), Florida Statutes 1973, fails to establish any standards to guide the Board in approving schools and colleges of architecture or in the determination of equivalent training. It is therefore unconstitutional.

In regards to the requirement of a standard, the Florida Supreme Court in Dickinson v. State, 227 So.2d 36 (Fla.1969) stated:

“The exact meaning of the requirement of a standard has never been fixed. The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulating enactments under the police power. However, when statutes delegate power with inadequate protection against unfairness or favoritism, and when such protection could easily have been provided, the reviewing court should invalidate the legislation. In other words, the legislative exercise of the police powers should be so clearly defined, so limited in scope, that nothing is left to the unbridled discretion or whim of the administrative agency charged with the responsibility of enforcing the act.” (227 So.2d at page 37) (Citations omitted, emphasis supplied)

Here, the evidence of unbridled discretion in overwhelming. When petitioner first applied to the Board, he was turned down simply because his degree was not on the Board’s list of approved degrees from approved schools. The Executive Secretary of the Board, Mr. Herbert Coons, Jr., testified that he made the decision to deny petitioner’s application unilaterally and that the application was not examined any further after the determination was made that petitioner’s degree was not on the required list. No attempt was made to examine petitioner’s application in light of the provision in the statute “or has had training which has been found by the board to be fully equivalent to such degree.” F.S. '467.08(l)(b)(5). When petitioner asked that his application be examined under that provision, the Board decided that the phrase required that petitioner have the educational equivalent of a required degree and referred the matter to Mr. Arnold F. Butt, Chairman of the Department of Architecture at the University of Florida and Educational Consultant to the Board. Mr. Butt admitted several times that he had no objective standard to go by when he made the determination that petitioner did not have the educational equivalent of a required degree and that he made his determination simply by comparing petitioner’s college transcript to the course requirements of the five year degree program in operation during the 1974-1975 school year at the University of Florida. (Petitioner graduated from college in 1954.)

Thereafter petitioner instituted an action in Circuit Court seeking a declaratory judgment as to the meaning of Section 467.08, more specifically the meaning of the word “training” as it appears in subsection (l)(b)(5). After a hearing on the matter, Judge Hugh M. Taylor of the Second Judicial Circuit held “that the phrase ‘training which shall be found by the Board to be fully equivalent to’ a degree in architecture means that an applicant must have acquired by any combination of private study, classroom education, on the job training and/or other practical experience a degree of proficiency found by the Board after study of each applicant’s qualifications, to be fully equal to the degree of competency as an architect possessed by a graduate of an accredited school.”

Finally, petitioner was given a hearing before the Board in light of the Circuit Court’s holding. Thereafter the matter was submitted to a subcommittee of the educational advisory committee chaired by Mr. Butt. After several months the subcommittee wrote a report finding that petitioner did not have the necessary educational background in architectural design or course work in humanities, liberal arts and social sciences; that designs submitted by petitioner did not show that through on the job training he had achieved a level of desired competence in architectural design and in fact that he had only obtained the level of a third year architectural student in a five year program; and finally that he had not submitted any evidence of involvement in “professional organizations” or “community activities” which would indicate that he had acquired the necessary knowledge in the social sciences, humanities, and liberal arts areas.

At the administrative hearing which followed, Mr. Butt admitted that neither he nor the Board had ever published anything or written down anything concerning the type of community projects which would be adequate to make up for a humanities deficiency. He further testified that as of the date of the administrative hearing, no standards had been set forth by the Board to determine whether or not an applicant has the equivalent of the required degree. Mr. Coons also testified at that hearing that the Board has no set standards for determining the equivalency of a required degree but reviews each individual case as to equivalencies and that the Board has neither adopted nor published any kind of standard of equivalency to make the finding called for under the 1973 Statute.

Thus, under the statute in question, the Board has the unbridled discretion to determine who will and who will not practice architecture in this state.

The Board relies on several cases, among them Attwood v. State, ex rel. Newman, 53 So.2d 825 (Fla.1951). However, that case is distinguishable. The statute in Attwood contained a standard found in the phrase “such school or college of pharmacy holding membership in the American Association of Colleges of Pharmacy.” Therefore the Att-wood court found that the Florida State Board of Pharmacy did not have an unlimited and uncontrolled discretion in determining which schools would be accepted as accredited. Section 467.08(l)(b)(5), Florida Statutes 1973, contains no such standard, even though the record reveals that there is a National Architectural Accreditation Board which evaluates the programs of various schools in the U.S. and lists them as accredited or refuses to do so.

The Board’s reliance on Levine v. Hamilton, 66 So.2d 266 (Fla.1953) is similarly misplaced. There, the court recognized that the board of pharmacy could determine the subjects contained on the entrance examination to be administered to persons seeking entrance to the practice of pharmacy. We are not here concerned with whether or not the Board has the discretion to determine which subjects should be contained on an entrance examination.

Section 467.08(l)(b)(5) was amended in 1974. We make no comment concerning the constitutionality of the amended statute, and limit our holding to the statute as it read in 1973.

Because we have decided that Section 467.08(l)(b)(5), Florida Statutes 1973, is unconstitutional and is therefore void and unenforceable, we do not reach petitioner’s other points.

The Petition for Review is granted and the Board’s final order denying petitioner’s application is vacated. The case is remanded to the Board to determine the status of petitioner’s application in light of our holding.

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


text:
    L. M. BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1077.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 8, 1978.
    Stanley M. Newmark, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Jester v. State, 339 So.2d 242 (Fla. 3d DCA 1976). See also State v. Ashby, 245 So.2d 225 (Fla.1971).


text:
    Lois CLARK and Aaron Clark, her husband, Appellants, v. The MIAMI NEWS, etc., et al., Appellees.
    No. 77-1450.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 7, 1978.
    Nachwalter, Christie & Falk and Jay M. Levy, Miami, for appellants.
    Adams & Ward and Richard B. Adams, Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Plaintiffs appeal a summary final judgment entered in favor of defendants in an action for personal injuries resulting from a collision of motor vehicles. The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by movants for summary judgment.

Reversed and remanded for further proceedings.