author: ANSTEAD, Judge.

text:
    BORG-WARNER ACCEPTANCE CORPORATION, Appellant, v. ATLANTIC BANK OF WEST ORLANDO and Robert C. Postle, Appellee.
    No. 77-201.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    Rehearing Denied Dec. 4, 1978.
    John D. Mahaffey, Jr., Orlando, for appellant.
    Ernest R. Drosdick and Robert F. Higgins of Lowndes, Peirsol, Drosdick & Doster, Professional Ass’n, Orlando, for appellee Atlantic Bank.
   ANSTEAD, Judge.

This appeal involves a contest as to the priority of liens on a motor home where the first party claims under a financing statement filed pursuant to the Uniform Commercial Code and the second party subsequently records a first lien on the title certificate. We find the financing statement has priority.

On April 11, 1973, Borg-Warner Acceptance Corporation filed a financing statement pursuant to Section 679.302, Florida Statutes (1973) covering the present and future inventory of Hill’s World of Motor Homes and Campers, Inc., a motor home retailer. On May 23, 1973, Hill’s World acquired a 1973 Allegro motor home from the manufacturer and placed the motor home in its inventory for resale.

On August 31, 1973, the Atlantic Bank of West Orlando loaned Hill’s World the sum of $8,974.08 and filed a financing statement on the motor home without determining whether there were any prior financing statements on file. Atlantic then made application with the Department of Motor Vehicles for a title certificate which was issued on January 29, 1974, indicating Hill’s World as owner and Atlantic as the first lien holder. As a further complication, Hill’s World sold the motor home on October 9, 1973, to Ronald Chestney. Borg-Warner financed the sale and was given a purchase money security interest in the motor home. Chestney subsequently sold the motor home to Robert C. Postle who assumed responsibility for the Borg-Warner loan. When Hill’s World subsequently defaulted on its loan, Atlantic filed a declaratory decree action seeking, among other things, a determination that its lien was superior to Borg-Warner’s. The trial court granted a summary final judgment on that issue for Atlantic and this appeal followed.

Atlantic contends that its lien is superior by virtue of the provisions of Section 319.-27(2) of the Florida Statutes which provides:

No lien for purchase money or as security for a debt in the form of retail title contract, conditional bill of sale, chattel mortgage, or other similar instrument, upon a motor vehicle, as now or may hereafter be defined by law, upon which a certificate of title has been issued in this state shall be enforceable in any of the courts of this state, against creditors or subsequent purchasers for a valuable consideration and without notice, unless a sworn notice of such lien showing the following information:
(a) Date and amount of lien;
(b) Kind of lien;
(c) Name and address of registered owner;
(d) Description of motor vehicle, showing make, type, and serial number; and
(e) Name and address of lien holder; has been filed in the department and such lien has been noted upon the certificate of title covering such motor vehicle, and shall be effective as constructive notice when filed. (Emphasis supplied)

Atlantic also relies on Section 679.302(4) which provides:

A security interest in property covered by a statute described in subsection (3) can be perfected only by registration or filing under that statute or by indication of the security interest on a certificate of title or a duplicate thereof by a public official.

On the other hand, Borg-Warner asserts that Chapter 319 does not apply to this transaction, citing Section 319.27(1), Florida Statutes, which provides:

All liens, mortgages and encumbrances on motor vehicles titled in Florida shall be noted upon the face of the certificate of title as and when issued in Florida or on a duplicate or corrected copy thereof, as is now provided by law; provided, however, that this section shall not apply to any retain title contract, conditional bill of sale, chattel mortgage or other like instrument covering any motor vehicle floor plan stock of any motor vehicle dealer. . . . (Emphasis supplied)

Borg-Warner contends that the security interest filing provisions of the Uniform Commercial Code, Section 679.302(3)(b), Florida Statutes, control:

The filing provisions of this chapter do not apply to a security interest in property subject to a statute:
(b) Of this state which provides for central filing of security interest in such property, or in a motor vehicle which is not inventory held for sale for which a certificate of title is required under the statutes of this state . . . . (Emphasis supplied)

While neither party, or the court, has found a case precisely on point, both rely on the legal maxim that where one of two persons must suffer through the fraud of a third person (Hill’s World) the one who made the fraud possible should bear the loss. Correria v. Orlando Bank and Trust Company, 235 So.2d 20 (Fla. 4th DCA 1970).

Borg-Warner claims that Atlantic should have determined whether there were any prior financing statements on the motor home prior to entering into its loan agreement with Hill’s World. Atlantic claims that Borg-Warner’s failure to secure and hold the manufacturer’s certificate of origin, which would have prevented a title, certificate from being issued, bars Borg-War ner’s claim.

The parties agree that the inventory financing arrangement between Borg-Warner and Hill’s World was a standard acceptable plan of commercial financing of the inventory of Hill’s World. At the time Borg-Warner entered into this financing arrangement and filed the financing statement on Hill’s World inventory, no title certificate or manufacturer’s certificate of origin was in existence. Accordingly, the .only method available to Borg-Warner to protect its lien rights was to file a financing statement pursuant to the Uniform Commercial Code.

Both the Uniform Commercial Code, Chapter 679, and the Motor Vehicle Title Certificates statute, Chapter 319, provide that the lien recording provisions of Chapter 679, rather than the provisions of Chapter 319, shall govern liens on motor vehicles held as inventory. See Sections 319.27(1) and 679.302(3)(b), supra.

At the time of its loan to Hill’s World, Atlantic knew that there had been no title certificate issued. Accordingly, Atlantic could not look to the title certificate to find a record of any prior liens. However, Atlantic itself filed a financing statement pursuant to the UCC, Chapter 679, apparently aware that this was the only way of recording a notice of its lien prior to the issuance of a title. Atlantic at that point was in the same position that Borg-Warner had been previously when filing its financing statement on Hill’s World’s inventory. Just as Atlantic relied on this financing statement to secure its lien, we think Borg-Warner, as to Atlantic, was entitled to rely on its financing statement as a notice to Atlantic of its prior lien.

Atlantic also claims that it is entitled to the protection of Section 679.307(1) which provides that a buyer in the ordinary course of business takes free of any security interests created by the seller. It claims that once a title certificate was issued on the motor vehicle, it was no longer inventory and Borg-Warner’s lien no longer attached, just as would be the case if the motor vehicle was sold to a good faith purchaser. We disagree.

Section 671.201(9) defines a buyer in the ordinary course of business as:

a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.

Atlantic was not a buyer in the ordinary course of business. Atlantic did not purchase the vehicle but rather attempted to use the vehicle, which remained with and was titled to Hill’s World, as security for a loan, just as Borg-Warner used the vehicle. Section 679.306(2) provides:

Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

Hence, in this case, Borg-Wamer’s security interest continued absent a sale to a buyer in the ordinary course of business under Section 679.307(1).

The path we have taken through the thicket of the provisions of Chapters 319 and 679 is a narrow one intended to apply only to the factual circumstances presented here. We find no conflict between the provisions of the chapters under these circumstances. Rather, we find the statutes themselves provide for reliance on Chapter 679.

Accordingly, the judgment of the trial court is hereby reversed with directions that judgment be entered in favor of the appellant, Borg-Warner Acceptance Corporation.

DOWNEY, C. J., and MINER, CHARLES E., Associate Judge, concur.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    FIRST NATIONAL BANK OF BIRMINGHAM, a federally chartered banking institution with its principal place of business in Birmingham, Alabama, Petitioner, v. DEPARTMENT OF REVENUE of the State of Florida, Respondent.
    No. HH-335.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1978.
    Rehearing Denied Dec. 6, 1978.
    William Guy Davis, Jr. of Beggs & Lane, Pensacola, for petitioner.
    Robert L. Shevin, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., for respondent.
   ERVIN, Judge.

First National Bank seeks review of a final order of the Department of Revenue approving an assessment of intangible personal property taxes upon two notes held by the Bank which were secured by mortgages on leaseholds upon real estate in Santa Rosa Island.

In 1971, the Okaloosa Island Authority, a governmental agency, leased certain real property on Santa Rosa Island in Okaloosa County to the Okaloosa Development Corporation for a term of 99 years. Later, certain sub-lessees under the Okaloosa Island Authority lease mortgaged their leaseholds as security for the payment of two promissory notes held by First National Bank. One note, dated January 11, 1974, was in the principal sum of $2,500,000 and the other, dated October 31, 1974, was in the sum of $45,000. The mortgages were recorded without protest and without any claim at that time by the clerk concerning any intangible taxes due and owing. On October 1, 1975, the Department of Revenue proposed an assessment against the Bank in excess of $5,000 for intangible property taxes on the notes pursuant to Section 199.032, Florida Statutes (1975). The Bank attacked the assessment as invalid and sought an administrative hearing. A DOAH hearing officer approved the assessment under 199.032(1), but determined that Section 199.032(2) did not apply because, in his opinion, a leasehold was not real property; however, subsection (1) did apply, and therefore he recommended the imposition of an annual recurring one mill tax. The Bank sought review to the Department of Revenue which disapproved the recommended order and found the assessment valid under subsection (2). It concluded that long term leaseholds constituted neither tangible or intangible personal property, but were rather interests in real property-

The Bank first argues that the intangible tax of two mills is not applicable to obligations secured by mortgages on leasehold interests because leaseholds are not realty. In support of its argument it traces the history of Section 199.032(2) as showing that the Department’s interpretation was inconsistent with the legislative intent because, although the first intangible tax act adopted by legislature in Chapter 15789, Laws of Florida (1931), provided that an intangible tax be paid on “all notes . which are secured by mortgage or other leases or liens upon real or personal estates situated in Florida . . .”, the act was repealed by Ch. 20724, Laws of Florida (1941), which provided that an intangible tax be assessed against “notes . for payment of money which are secured by mortgage, . . . upon real property . . . .” No reference was made in that act or in subsequent enactments of the intangible tax statute to a tax upon leases. The Bank also relies upon two opinions of the attorney general, 1947 Op. Att’y Gen. Fla. 047-201 and 1960 Op. Att’y Gen. Fla. 060-56, which stated that a leasehold interest under common law was considered personal property. To the same effect, see also Wood v. Ford, 148 Fla. 66, 3 So.2d 490 (1941) and Simpson v. Lofton, 160 Fla. 20, 33 So.2d 230 (1948), which so held. In essence, the Bank’s position is that the common law rule affecting leases has not been altered by statute, even though there is no constitutional provision precluding the legislature from so doing; therefore, its interest in the leases was not one in realty. As a result there is no legal authority for the assessment of the intangible personal property tax.

Section 196.001(2), Florida Statutes (1975), first enacted as Chapter 71-133, Section 16, Laws of Florida, subjects all leasehold interests in any governmental property to ad valorem real property taxation. While subsection two does not expressly state that a lease from a governmental body is a real property interest for ad valo-rem tax purposes, this is a necessary conclusion which must be drawn since subsection two mandates that governmental leases, not used for public purposes, be taxed.

In Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571 (Fla. 1957), the court stated that a leasehold interest in real property was neither tangible nor intangible property and, under the law existing at the time, was not subject to taxation. The court continued, however, it was not aware of any reason why the legislature could not by statute subject such interests to taxation. In answer to the court’s observation in Park-N-Shop, Inc. v. Sparkman, supra, the legislature in 1961 enacted Section 192.62, subsequently enacted verbatim as Section 196.25. The statutes were the predecessors to Sections 196.001(2) and 196.199, Florida Statutes (1971). Section 192.62 generally provided that any real or personal property, otherwise exempt from taxation, when used in connection with a profit making venture, be assessed and taxed to the same extent and in the same manner as other real or personal property. As pointed out by Justice Sundberg in Williams v. Jones, 326 So.2d 425, 435 (Fla. 1976), the language used in 192.62(1) which permitted a lease to be taxed “to the same extent and the same manner as other real or personal property” allows judicial interpretation. Section 192.-62 and its successor statutes have been interpreted by the courts on numerous occasions as authorizing the assessment of ad valorem real property taxes upon leases. For example, in Hillsborough County Aviation Authority v. Walden, 210 So.2d 193 (Fla. 1968), the court approved a trial court’s determination that a leasehold interest of a motel operator from a tax exempt body was a separate, distinct interest in such property and, since it was being used for a predominantly private purpose, was subject to assessment and taxation as real estate to the lessee. Later, in Dade County v. Pan American Airways, Inc., 275 So.2d 505 (Fla. 1973), the court observed that Section 192.62 was enacted by the legislature in 1961 for the purpose of imposing ad valorem real property taxes upon public property which had been exempt or immune from taxation but which was being used by private lessees involved in profit making ventures. The successor statute to 192.62, Section 196.25, was repealed by Ch. 71-133, § 15, Laws of Florida, but certain of its provisions were replaced in Sections 196.001 and 196.199, Florida Statutes (1971), and apply to the transactions before us.

The subject of ad valorem taxes upon leases as real property was comprehensively treated by the Supreme Court in Williams v. Jones, supra, and the reader is directed to that opinion for the various types of situations which state that leaseholds are interests in realty. Williams v. Jones, supra, at 433-434. We recently held in Department of Revenue v. Dix, 362 So.2d 420 (Fla. 1st DCA, August 30, 1978), that a lease is a conveyance of an interest in land which may be subject to the purview of the Documentary Stamp Tax Act, Section 201.02(1), and that the assignee of a lease in realty who also assumes a mortgage upon the leasehold interest is subject to the payment of documentary stamps upon the recording of the lease.

The common thread running throughout later opinions of the Florida Supreme Court on the subject, e. g., Straughn v. Camp, 293 So.2d 689 (Fla. 1974); Williams v. Jones, supra; Volusia County v. Daytona Beach Racing, etc., 341 So.2d 498 (Fla. 1976), is that holders of leases upon publicly owned lands used for private purposes must bear their fair share of the tax burden to the same extent as owners of real property in the private sector, and that all property is subject to taxation unless expressly exempted. Since private owners of real property are subject to ad valorem taxes upon real estate, and the holders of notes upon mortgages secured by such real property are subject also to intangible personal property taxes, there is no logical reason why real property owned by a governmental authority, but leased for private purposes, which bears a burden for ad valorem property tax purposes, should not also be subject to the tax burden imposed by Section 199.032(2) on notes secured by mortgages upon such leases. There is no legislative vacuum as contended by the Bank. The legislature has spoken. The leases are an interest in realty and as such are subject to the tax imposed by Section 199.032(2) upon recordation of the mortgages encumbering the leases.

The Bank argues in the alternative, if it is determined that Section 199.032(2) is applicable, the Department of Revenue is estopped from assessing or collecting the intangible property tax because the clerk of the circuit court, when the two mortgages securing the notes were presented for recor-dation, recorded them without first requiring the payment of the tax as provided by Section 199.052(7). It was argued at the hearing, although no proof was presented, that the Bank and the clerk relied upon two opinions of the attorney general, 1947 Op. Att’y Gen. Fla. 047-201 and 1960 Op. Att’y Gen. Fla. 060-56, which stated that a leasehold interest was considered personal property. The Bank also argued that it relied on a rule of the Department of Revenue, Fla. Admin. Code R. 12B — 2.06(7), in effect at the time the mortgages were recorded, which exempted leases of realty from taxation. The Bank’s brief states that if it had been aware of its liability to pay an intangible personal property tax on notes secured by leases, it would have shifted its burden to the mortgagor “by contractual agreement in conformity with the custom prevailing throughout the state.” It continues that having relied upon the opinions and rules of the Department of Revenue, it is unable now to transfer its burden since the mortgages have been recorded and one was in fact cancelled.

The Bank relies primarily upon George W. Davis and Sons v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977), where we held that because of two inconsistent opinions by our court, the Department of Revenue was es-topped from assessing and collecting an admissions tax from an owner of a party fishing boat on its operations from the date of our first opinion holding that the admission tax laws did not apply until the date of the mandate in the second case requiring the payment of such tax. We are unpersuaded by the purported analogy of Davis to the case before us. First, an admissions tax, like the sales tax, is collected on behalf of the state by the operator, and it is in effect a form of excise tax upon the customer for exercising his privilege of purchasing the admission. Scripto, Inc. v. Carson, 105 So.2d 775 (Fla. 1958). The Bank, however, as holder of the note, is by law required to pay the intangible tax. While it may be banking custom through the state to transfer the holder’s burden to the borrower, no proof was presented by the Bank of such practice and the record is devoid of such evidence. We are asked to assume upon a silent record that the Bank would require the borrower in all circumstances to pay the tax; that it would collect the money from him and then pay it over to the appropriate agent of the state. This we will not assume.

There are other factual distinctions between the two cases. In Davis, it was recited that the Revenue Commission made direct representations to the fishing boat operator that it would not attempt to enforce collection of the admissions tax upon his operations so long as the opinion of our court was in effect holding the inapplicability of the tax. No such representations were directly made here by the Department to the taxpayer.

It is only in very exceptional circumstances that the rule of estoppel may be imputed to the state in taxation matters. 68 Am. Jur.2d, Sales and Use Taxes, § 162. For example, a rule or regulation of a state tax commission purporting to exempt a taxpayer from the payment of his tax, where no authority to do so was granted to it by the legislature, cannot operate as an estoppel against the state to collect such tax in the case of transactions which have closed so that the seller cannot collect the tax from the purchaser. Id. The above rule was applied by the Florida Supreme Court in an action where a taxpayer sought to estop the state comptroller from collecting documentary stamps upon the transfer of certain shares of stock in North American Company v. Green, 120 So.2d 603 (Fla. 1959). The court there said:

We have not overlooked the contention of the appellant that the appellee Green is estopped to collect the subject tax because of his earlier administrative decision to rely on an opinion of the Attorney General to the effect that the tax was not collectible. The instances are rare indeed when the doctrine of equitable estoppel can effectively be applied against state action. It will be invoked only under very exceptional circumstances. Id. at 610.

The court concluded that the circumstances were not so egregious as to permit the imputation of estoppel to the state. To the same effect, see Dominion Land and T. Corp. v. Department of Revenue, 320 So.2d 815 (Fla. 1975), and Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977). In the latter case, the surviving spouse of a deceased state employee brought an action seeking state retirement benefits as a beneficiary of the employee and contended that the Division of Retirement should be estopped from refusing to pay her such benefits because the Division caused to be issued a pamphlet which had erroneously stated that a surviving spouse could receive benefits even if she were not a designated beneficiary. The court, in rejecting the wife’s argument, broadly stated: “Administrative officers of-the state cannot estop the state through mistaken statements on the law.” 350 So.2d at 105. In conclusion, we are of the view that the circumstances of this case are not such as to justify any theory of estoppel against the state.

The Bank argues also that the assessment is void as to one of the mortgages since it was made beyond the statute of limitations. It relies upon Section 199.-232(4), providing that no assessment shall be made, except pursuant to investigation, after the expiration of three years from the due date for the filing of a return or the date of filing. It argues that if the Bank was liable for the payment of the two mill tax, its liability commenced as of the date the first mortgage was recorded on January 14, 1974, and since three years have passed without the Department making any final assessment, the statute of limitations expired and no assessment can now be imposed.

The final order of assessment was not issued by the governor and cabinet of the state until after the expiration of three years from the date of the mortgage’s recording. However, well within the three year period, or on October 1, 1975, the Department of Revenue notified the Bank that it had proposed an assessment against it in excess of $5,000 for intangible property taxes upon the notes. The notice of proposed assessment advised that the assessment would become final within 60 days of receipt unless conferences and hearings were requested by the Bank. The Bank exercised its option by protesting the proposed assessment. As a result, we consider the statute of limitations was suspended during the time necessary to exhaust the administrative procedures which the Bank invoked.

We have examined the remaining points urged by the Bank and consider them without merit.

The final assessment is AFFIRMED.

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

      . Section 199.032(1) and (2) provides:
      (1) An annual tax of 1 mill on the dollar of the just valuation of all intangible personal property, except money as defined in s. 199.-023(l)(a), and except notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state;
      (2) A nonrecurring tax of 2 mills on the dollar of the just valuation of all notes, bonds, and other obligations for payment of money which are secured by mortgage, deed of trust, or other lien upon real property situated in the state.

      . A later attorney general’s opinion, 1974 Op. Att’y Gen. Fla. 074-350A, took a contrary position and stated such interests, because of statutes then in existence, were realty.


author: PER CURIAM.

text:
    Julius Ceasar MERRILL, Appellant, v. STATE of Florida, Appellee.
    No. KK-342.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1978.
    Rehearing Denied Dec. 6, 1978.

      Julius Ceasar Merrill, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

In our consideration of this appeal from the summary denial of appellant’s Rule 3.850 motion, we have examined the record of appellant’s direct appeal, Merrill v. State, 351 So.2d 411 (Fla. 1st DCA 1977), in addition to appellant’s present contentions. Appellant’s claim of relief based upon sufficiency of the evidence is without merit. This matter was raised on his previous appeal and thus does not set forth a proper ground for post-conviction relief. Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978). The allegations concerning jury instructions attempt to raise matters which properly should have been raised on direct appeal. Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977). Further, the lack of objection to certain jury instructions by appellant’s court-appointed counsel does not establish ineffective assistance of counsel since such matters fall within the judgment or strategy of counsel. See, e. g., Beckham v. State, 339 So.2d 221 (Fla. 3d DCA 1976). The trial court correctly denied appellant’s motion without an evidentiary hearing.

SMITH, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: BERANEK, Judge.

text:
    OSCEOLA FARMS CO., Appellant, v. WILDER BROS. FARMS, INC., a Florida Corporation, David Bramson, and 715 Farms, Ltd., a partnership, Appellees.
    No. 77-1694.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    Rehearing Denied Dec. 4, 1978.

      Maxwell Grabove of Salley, Barns & Pa-jón, Miami, for appellant.
    Thomas A. Bratten of Bratten & Harris, P. A., West Palm Beach, for appellees.
   BERANEK, Judge.

This appeal seeks to reverse the trial court’s finding that a contract between the parties is void and no longer enforceable. The parties entered into a long term contract for the production and grinding of sugar cane. The price to be paid for the grinding of the cane was to be in accordance with certain formulas and regulations established by the sugar branch of the United States Department of Agriculture under the general statutory scheme of the United States Sugar Act of 1948. After functioning under the contract for many years, ap-pellees sued to terminate the contract on the theory that the price was no longer fixed or determinable. It was asserted and proved to the satisfaction of the trial court that the United States Department of Agriculture no longer established pricing formulas and regulations. This was because the United States Sugar Act of 1948 expired in December of 1966. The trial court found the contract was no longer enforceable and that the negotiations between the parties subsequent to the expiration of the United States Sugar Act did not serve to create an implied contract. Appellant has failed to demonstrate error in the factual findings or legal conclusions of the trial court. The final judgment is, therefore, affirmed.

CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: PEARSON, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Eileen GORDON, Appellee.
    No. 77-2487.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 4, 1978.

      McCormick, Bedford & Backmeyer and Thomas E. Backmeyer, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and N. James Turner, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.

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

   PEARSON, Judge.

The defendant, Allstate Insurance Company, was sued by the appellee policyholder, Eileen Gordon, upon a homeowner’s insurance policy which provided special theft coverage for plaintiff’s jewelry. After the presentation of plaintiff’s case, both the defendant and the plaintiff moved for a directed verdict. The question presented at this time, on this motion, was whether the plaintiff had proved a prima facie case for recovery under the policy of insurance. The plaintiff, of course, was entitled to all reasonable inferences from the evidence presented. See Chowning v. Pierce, 174 So.2d 42 (Fla.3d DCA 1965). The trial court denied each motion and submitted the case to the jury. The jury returned a verdict for the plaintiff and the insurance company appeals urging as the single point on appeal that the trial court erred in submitting to the jury the issue of whether or not the plaintiff was excluded from coverage based on the facts in the record. The provision of the policy upon which the insurance company claims a right for a directed verdict is an exclusion to the general theft coverage:

“This policy does not apply to loss away from the described premises of:
(1) property while in any dwelling or premises thereof, owned, rented or occupied by an Insured, except while an Insured is temporarily residing therein;”

The declarations of the policy provided:

“Named Insured: Harold and Eileen Gordon
Location of Property Insured: 5700 Collins Avenue, 8E Miami Beach, FL 33140”

During the period of time around the date of the theft, the home located at 8750 North Miami Avenue and owned by the plaintiff was permanently occupied by the plaintiff’s mother and invalid sister. The plaintiff and another sister, Nell Glanza, shared the obligation of caring for these two close relatives. The plaintiff and her sister had an arrangement whereby one of the two of them would live at 8750 North Miami Avenue with their mother and sister at all times. The procedure in effect at the time of the theft was that the plaintiff would reside at the 8750 North Miami Avenue address three consecutive days one week and four consecutive days the following week. On these days that she was not scheduled to be there, her sister was; so that one of the two of them was always there. During the time that the plaintiff was taking care of her mother and sister, she spent the night with them so that, again, either the plaintiff or her sister was at 8750 North Miami Avenue at night as well as during the day.

When the plaintiff was not caring for her mother and sister, she lived alone at the apartment at 5700 Collins Avenue, the location described on the Allstate policy.

The North Miami Avenue residence was robbed on Friday, October 15, 1976, a day that the plaintiff’s sister, Nell Glanza, was residing at 8750 North Miami Avenue with the plaintiff’s mother and sister. The plaintiff was to recommence her three or four day station on Sunday, two days after the theft. The plaintiff could not recall whether the week of the theft was a week she spent four days at the North Miami Avenue home or only three. The plaintiff had turned over to her sister the duty of caring for their relatives on either Thursday, the day before the theft or Wednesday, two days before the theft. The plaintiff’s sister had slept at 8750 North Miami Avenue either the night before the theft or the two nights before the theft. The plaintiff had, therefore, slept at the Collins Avenue apartment and stayed at the Collins Avenue apartment either one or two full days and nights by the time the theft occurred on Friday afternoon.

The appellee contends that the trial court correctly submitted to the jury the issue of whether the policyholder was excluded from insurance coverage because the issues before the court involve not only the interpretation of the contract of insurance, but also the question of whether a certain set of facts existed in order to bring the policyholder’s loss within the terms of the policy issued by Allstate Insurance Company. Ap-pellee relies upon State Farm Fire & Casualty Company v. Lichtman, 227 So.2d 309 (Fla.3d DCA 1969), for support on this position. The cited case concerned the entry of a partial summary judgment and held that under the pleadings, depositions, affidavits and answers to interrogatories, there was a genuine issue of material fact. We do not think that the case is applicable here inasmuch as we are faced, in this instance, with the question of proof and the sufficiency of plaintiff’s proof to withstand a directed verdict.

The question then becomes whether or not, under the facts above recited as having been proved by the plaintiff, there was any reasonable view of the evidence under which a jury could find that the jewelry located at the North Miami Avenue residence was located in a dwelling while the insured was temporarily residing therein.

We hold that under any reasonable view of the evidence it could not be said that on the date of the loss, the policyholder was temporarily residing at the North Miami Avenue address. Cf. the reasoning in Bryan v. Granite State Insurance Company, 185 So.2d 310 (La.App.1966), wherein the court pointed out that a person may not be residing in two residences at the same time and that when time is split between two residences, the policyholder is only residing in the one in which he is occupying at the time of the theft.

The plaintiff’s evidence was, at the time of the motion, subject only to one reasonable view and that was that the plaintiff was staying at the Collins Avenue address, which was the premises for which the policy was issued. The language of the policy is clear and unambiguous, and it was the duty of the court to apply it to the facts presented. See Valdes v. Prudence Mutual Casualty Company, 207 So.2d 312 (Fla.3d DCA 1968). It was error for the trial court to deny defendant’s motion for directed verdict at the close of plaintiff’s case.

Reversed and remanded with directions to enter a directed verdict for the defendant.

Reversed and remanded.


author: KEHOE, Judge.

text:
    Cesar QUIROGA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2657.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 6, 1978.
    Mark King Leban, Rosen, Pórtela, Bronis & Anguiera, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.

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

   KEHOE, Judge.

Appellant, defendant below, appeals a judgment of conviction and sentence entered pursuant to a jury verdict finding him guilty of carrying a concealed firearm. We reverse.

The sole ground for reversal in this case is that the record, at the conclusion of all the testimony, is wholly devoid of any evidence upon which the jury could have determined that the firearm was concealed. The only direct testimony in regard to the concealment of the firearm is that of appellant. There is no evidence to show any inconsistency with his testimony that the firearm was not concealed. Proof of concealment is an essential element of the crime of carrying a concealed firearm and such element must be proven beyond a reasonable doubt. Here the evidence before the jury was not susceptible of such proof. Donald v. State, 344 So.2d 633 (Fla.2d DCA 1977). Accordingly, the judgment and sentence of the trial court are reversed and the cause is remanded with directions that appellant be discharged.

Reversed and remanded with directions.


text:
    Louis K. STEINER, Appellant, v. CIBA-GEIGY CORPORATION, Appellee.
    No. 77-2691.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 6, 1978.

      Podhurst, Orseck & Parks and Michael Olin, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Laurence A. Schroeder, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PEARSON, Judge.

The plaintiff, Louis K. Steiner, appeals a summary final judgment for the defendant Ciba-Geigy Corporation. The controlling question presented is whether the trial court correctly determined that it appeared without genuine issue of material fact that the cause of action arose more than four years prior to the filing of the complaint. We hold that it conclusively appears from the evidentiary matters before the trial court on the motion for summary judgment that the “. . . facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence . . . [] ” more than four years prior to the filing of this cause, and the action was, therefore, barred by the Statutes of Limitations, Section 95.11(3)(a) & (e), Florida Statutes (1977).

The complaint charged the defendant with negligence, breach of express warranty, breach of implied warranty and strict liability on the ground that the plaintiff, at various times and pursuant to a physician’s prescription, ingested a drug known as Teg-retol manufactured by the defendant. It further alleged that as a proximate result of the ingestion of the drug, the plaintiff was substantially, if not totally, blinded. The defendant answered, pleading affirmative defenses, including the statute of limitations. Discovery proceeded and the defendant moved for a summary judgment on the basis of plaintiff’s answers to interrogatories and the deposition of plaintiff. The trial court entered summary judgment and no other basis for the judgment is urged by the appellee other than that it appears without genuine issue of material fact that the defendant was entitled to a judgment as a matter of law because of plaintiff’s failure to file the action within the four year period prescribed by Section 95.11(3)(a) & (e), Florida Statutes (1977).

The facts revealed upon discovery, viewed in the light most favorable to the plaintiff, are as follows:

Prior to March, 1971, Louis Steiner was in good health. On or about March 17, 1971, Mr. Steiner contracted herpes zoster — commonly known as shingles. His symptoms began as an itch and a rash on the upper portion of his lip and progressively worsened ultimately resulting in considerable pain on the entire left side of his face. He was treated by Dr. William Abelove, who told him that shingles affects the nerves. Mr. Steiner was hospitalized at Doctors Hospital for five days. He did not recall what medications he was given, although he did not believe those medications included Tegretol. He obtained minor relief during his first hospitalization.

After his release from the hospital in April, 1971, Mr. Steiner was treated by Dr. Sherif Shafey, a neurologist who had first seen him in the hospital. His condition was ultimately diagnosed as post-herpetic neuralgia, or post-zoster syndrome.

The pain continued, and on August 31, 1971, Dr. Shafey first prescribed Tegretol. At that time, he was also taking other drugs. Mr. Steiner took Tegretol until his next admission to the hospital on September 16, 1971. He stayed for five days, but did not know which drugs he was given in the hospital.

The first change in Mr. Steiner’s eyesight occurred the second week in September, 1971. Just prior to his hospitalization, Mr. Steiner’s right eye experienced what he called a “rising tide effect.” That is, his loss of sight would proceed upwards from the bottom of his eye. Only the vision in his right eye was affected, and the neuralgia he was experiencing occurred only on the left side of his face. Mr. Steiner told Dr. Shafey of his vision problem while he was in the hospital. Shafey advised him to see an ophthalmologist upon his discharge. The condition continued after that discharge until only a glimmer of light was visible over the top of his right eye. He saw Dr. Warren Lieberman, an ophthalmologist. Dr. Lieberman did not name Mr.' Steiner’s ailment, but prescribed a drug called Decadron.

Dr. Lieberman told Mr. Steiner that with medication he hoped Mr. Steiner would be able to recover his sight. His sight, in fact, did improve.

Mr. Steiner next took Tegretol in April, 1972, again upon Dr. Shafey’s prescription. Mr. Steiner took Tegretol for four or five days and noted a vision problem in his left eye. He described the vision problems with his left eye as being like a jigsaw puzzle with pieces missing.

Mr. Steiner returned to Dr. Lieberman in May, 1972, and was told by Dr. Lieberman that he was suffering from “optic neuritis.” Dr. Lieberman decided the situation was serious and sent Mr. Steiner to the Bascom-Palmer Eye Clinic to see Dr. Joel Glaser, who confirmed the diagnosis of optic neuritis. He told Mr. Steiner that the problem was quite serious. Dr. Glaser advised Mr. Steiner that he wanted to wait a few days before beginning treatment. Before treatment began, however, both eyes worsened. Mr. Steiner’s vision never improved. On August 30, 1972, Mr. Steiner expressed to Dr. Ross Davis, whom he had consulted for his neuralgia, that it appeared to him that his vision seemed to decrease at about the same times he was taking Tegretol. He recalled that he “. . just got to wondering, is this coincidence or what?” He felt that “[sjomething was doing it,” and stated, “. . .it seemed that there was a temporal relationship, I guess.”

Tegretol was gain prescribed in September, 1972, by Dr. Shafey, who was still treating the plaintiff’s post-herpetic neuralgia. Mr. Steiner did not complete this prescription but discontinued it after only four to five days. He took the Tegretol in very small amounts and his visual acuity decreased but then improved when he stopped taking Tegretol. He did this twice and confirmed for himself that there was a relationship between his loss of eyesight and the taking of Tegretol. This action against the manufacturer of Tegretol was filed January 12, 1977.

Appellant presents three points. The first urges that there is a genuine issue of material fact concerning the time that he knew, or should have known, of the cause of his injury and, therefore, that summary judgment is precluded. The second urges that the facts on the record were not sufficient in 1972 to show that he knew, or should have known, the cause of his injury. Third, it is urged that the summary judgment should be reversed as being premature in that further discovery should have been permitted prior to determination of the statute of limitations issue.

We will deal with the first two points together. The decision of the Supreme Court of Florida in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), appears to us to govern in this case. In Nardone, the Supreme Court dealt with a certified question from the United States Court of Appeals, Fifth Circuit, in a medical malpractice action. The question concerned the commencement of the period of limitations, as follows:

“ T. In a medical malpractice case does the period of limitation (F.S.A. 95.-11(4)) commence:
(a) As to the parents and legal guardians of the incompetent minor in their own right'
(b) As to the parents and legal guardians of the incompetent minor as next friends in behalf of the minor
(c) As to the incompetent minor in his own right when the parents and legal guardians of the incompetent minor have (i) knowledge of the physical condition and the drastic change therein during the course of medical treatment, but (ii) do not then have (or are not charged with having) knowledge that such physical-mental condition was caused in whole or in part by acts or non-acts of the alleged malpractitioner?’ ”

The evidentiary facts in the Nardone case are too long to be restated here. However, it should be stated that the plaintiffs in Nardone claimed medical negligence in the post-operative treatment of their son. The appeal was taken from a summary final judgment for the defendants entered on the basis of an affirmative defense of this same section of the statute of limitations. Although Section 95.031, Florida Statutes (1977), containing the language “. facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence . .” was not then in effect, the Florida Supreme Court reached a conclusion that such a rule applied in this state. The Supreme Court held:

“With the knowledge of the severity of their, son’s resultant condition, the parents through the exercise of reasonable diligence were on notice of the possible invasion of their legal rights. Notice of the consequences of the physician’s acts, assuming arguendo that they were negligent, occurred in 1965.” 333 So.2d at 34.
* * * * * *

The Court concluded:

“For the aforegoing reasons, the first question is answered in the affirmative. The nature of the infant’s condition was patent in 1965, before his discharge from the hospital, and was reaffirmed by Dr. Vicale in October, 1965; the records at all times were readily available. Cf. City of Miami v. Brooks, supra [70 So.2d 306 (Fla.1954)]; Cristiani v. City of Sarasota, supra [65 So.2d 878 (Fla.1953)], and Buck v. Mouradian, supra [100 So.2d 70 (Fla. 3d DCA 1958)].” 333 So.2d at 40.

The appellant relies for reversal on the reasoning of the Fourth District Court of Appeal in Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977). The appeal in Pinkerton was taken from a summary final judgment rendered in favor of the defendant on a claim of legal malpractice. The basis for the summary judgment was, as here, the statute of limitations. On appeal, the plaintiff urged that under the statutory language, the statute of limitations did not begin to run until she was told by another attorney that the advice she had been given by the defendant attorney was erroneous. The defendant urged that the statute began to run when, after reading an article stating the law to be different from the advice given to her, she questioned the competence of her attorney. The court held:

* * * * * *
“It is significant however that the record is silent as to evidence conclusive, as a matter of law, that she knew or should have known her lawyer was wrong in his rendered legal opinion that bankruptcy defeated alimony arrearages. At all events, it would appear to us to be a question of fact as to whether his incompetence was so glaring and of such magnitude that his client was on notice to pay no attention to any of his legal advice.
“All this being so, we think it was error for the judge to grant a summary judgment against the appellant. As we have held before:
‘the applicability of the statute of limitations to the plaintiffs’ cause of action for malpractice against the attorney-defendant is dependent upon when the attorney’s alleged act of negligence became known to the client which matter is a question of fact to be determined by the trier of the fact and not by the court in a summary proceedings.’ Schetter v. Jordan, 294 So.2d 130, 131 (Fla. 4th DCA 1974).
“This cause is reversed and remanded for further proceedings consistent herewith.”

Applying the ruling in Pinkerton to the facts as shown by the defendant on its motion for summary judgment in this case, the plaintiff urges that he could not have known in fact whether his blindness was caused by Tegretol. By way of illustration, it is suggested that had he gone to a lawyer to bring a suit against the manufacturers of Tegretol, the lawyer would have refused the case because only the temporal relationship between the dosages of Tegretol and the loss of visual acuity existed.

The difficulty with the illustration and the argument that it supports is that it cannot be known as a legal fact that Tegre-tol caused plaintiff’s blindness until such is established by legal processes. This record does not show, at this stage in the proceedings, any theory other than the temporal relationship claimed for plaintiff’s present belief that his damages were caused by Tegretol.

As plaintiff points out, he has no burden to prove his case on defendant’s motion for summary judgment. On the other hand, when it appears without genuine issue of material fact from defendant’s motion that an affirmative defense is a bar to the cause of action, then unless the plaintiff comes forward with some factual matter to create a genuine issue, the judgment for the defendant on its motion is proper. See Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corporation, 335 So.2d 600 (Fla. 3d DCA 1976). See also Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 340 (5th Cir. 1971).

To follow plaintiff’s suggestion that under the doctrine in Pinkerton, he must either be advised by a competent authority that he has a cause of action, or that he must “know for a fact” that he has a cause of action would be to change the wording of the statute, which requires only that facts giving rise to the cause of action, be discovered, or should be discovered, with the exercise of due diligence. In our view, the holding in Pinkerton must be that under the facts of that case, there was a genuine, issue concerning the time the plaintiff knew, or should have known, created by plaintiff’s expressed dissatisfaction and the later advice. In the present case, there is no genuine issue of material fact. The question is whether the facts known to the plaintiff were sufficient as a matter of law to begin the running of the statute of limitations.

In this regard, the plaintiff is in much the same position as the parents in the Nardone case, who, in 1965, were not fully aware of the complete facts when their son’s condition after post-surgical treatment became considerably worse than anyone could have expected. However, from 1965 to 1971, the year the parents learned of the negligent treatment, there was no tolling of the statute of limitations because the facts known by, or accessible to, the parents in 1965 were sufficiently adequate to put them on notice that there was something or someone primarily or totally responsible and probably legally liable for their son’s adverse and tragic condition. Unlike the plaintiff in Pinkerton, who at most could merely suspect the incompetence of her attorney, the parents in Nardone knew, or should have known, in 1965 that a defendant or defendants to a negligence action “already” existed. The same is true in our present case where plaintiff Steiner in mid-1972 was on notice, based on the facts already discussed, that a defendant or defendants “already” existed. Finally, in Nardone and the present case, it should be noted that the potential defendants were not so numerous as to place an undue burden on the plaintiffs. In each case, adequate facts existed at an early date to point in a single, general direction in a search for the responsible party or parties. In Pinkerton, the allegedly responsible party (the attorney) was identifiable from the start; however, the facts available at the earlier date did not put the plaintiff on notice that someone, somewhere (namely the attorney) was at that time legally responsible for anything.. It was only at a much later date that the plaintiff was put on notice, through advice from another attorney, that her original attorney had been negligent in providing incorrect legal advice.

These and other cases on the subject lend themselves to the proposition that the statute of limitations will begin to run only when the “moment of trauma” and the “moment of realization” have both occurred. By “trauma,” we simply mean the ill effect, damage or injury; and by “realization,” we mean the “known or should have known” element associated with the trauma. In Nardone, as in the present case, the trauma itself, plus the surrounding circumstances, immediately gave rise to the realization. As a matter of law, the realization in Pinkerton of the conflict between the newspaper article and the prior legal advice did no more than give rise to a suspicion of the trauma (the ill effects from the incorrect legal advice). The knowledge subsequently acquired from another attorney was the realization of the trauma’s actual existence and of its exact nature. The same pattern is usually true in the case of a patient with surgical equipment or implements negligently left in his or her body. See e. g., Salvaggio v. Austin, 336 So.2d 1282 (Fla. 2d DCA 1976). The post-surgical pain or discomfort and possible physical injury resulting from the negligence in such cases would produce the trauma, but ordinarily at that time inadequate facts would exist to give rise to the realization. A subsequent x-ray, for example, revealing the negligence would then signal the “moment of realization,” which in turn, as in Pinkerton, would more clearly illuminate and define the already existent trauma. In such instances, a question of fact concerning the running of the statute of limitations would ordinarily be presented. However, as already pointed out, our present case falls under the Nardone example and not the Pinkerton example. Therefore, Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), governs in this case.

Turning to plaintiff’s last point on appeal urging that the summary final judgment was premature, we hold that the record does not support this theory. The Florida Rules of Civil Procedure provide a remedy for a party opposing a motion who finds that additional affidavits or depositions are necessary. Plaintiff, having failed to follow the rule even to move for a continuance of the hearing on the motion, may not claim error in the appellate court because the trial judge proceeded as provided by the rules. Cf. Page v. Staley, 226 So.2d 129, 131 (Fla. 4th DCA 1969).

Affirmed.

      . “95.031 Computation of time. — Except as provided in subsection 95.051(2) and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.
      “(1) * * *
      “(2) Actions for products liability and fraud under subsection 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection 95.11(3) but in any event within 12 years after the date of delivery of the completed product to its original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.”

      . “95.11 Limitations other than for the recovery of real property. — Actions other than for recovery of real property shall be commenced as follows:
      * * * * * *
      “(3) WITHIN FOUR YEARS —
      “(a) An action founded on negligence.”
      * * * * * *
      “(e) An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures.”

      . * * * * * *
      “Once plaintiff is on inquiry that it has a potential claim, the statute can start to run. * * * This standard is in line with the modern philosophy of pleading which has reduced the requirements of the petition and left for discovery and other pretrial procedures the opportunity to flesh out claims and to define more narrowly the disputed facts and issues.” Japanese War Notes Claimants Ass’n of Philippines, Inc. v. United States, 373 F.2d 356, 359, 178 Ct.Cl. 630, 634 (1967).

      . As was stated in Nardone,

      “The means of knowledge are the same as knowledge itself. Scroggin Farms Corp. v. McFadden, 165 F.2d 10, 18 (8th Cir. 1948).”

      . See also the products liability warranty case of Creviston v. General Motors Corporation, 225 So.2d 331 (Fla.1969).

      . See Fla.R.Civ.P. 1.510(f).


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Corporation, as Subrogee of Bared & Cobo Company, a Florida Corporation, and Bared & Cobo Company, a Florida Corporation, Individually, Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Pavarini Construction Company, Inc., a Florida Corporation, and Dual Security Systems, Inc., a Florida Corporation, Appellees.
    No. 78-472.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Dec. 4, 1978.
    Ligman, Martin, Shiley & McGee, Coral Gables, for appellants.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Marlow, Shofi, Ortmayer, Smith & Spangler and Thomas F. Valerius, Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Yaeger v. Tolin, 277 So.2d 61 (Fla. 3d DCA 1973) and Bryant v. Cole, 282 So.2d 652 (Fla. 2d DCA 1973); Muravchick v. United Bonding Insurance Company, 242 So.2d 179 (Fla. 3d DCA 1970).


text:
    Fred E. SHIRLEY, Appellant, v. Nona A. SHIRLEY, Appellee.
    No. HH-412.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1978.
    William R. Slaughter, II, of Slaughter & Slaughter, Live Oak, for appellant.
    James D. Swearingen and Robert H. Wilson, III, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellee.
   PER CURIAM.

After reviewing the record and briefs, we find no error. The order of the trial court is, therefore, AFFIRMED.

Appellee’s request for appellate attorney’s fees is granted and we remand this case for the trial court to set the amount. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

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


author: CARROLL, Associate Judge.

text:
    Michael GLANTZ, Gretchen Glantz, Stanley Poole, Norma Poole, Ranald Stewart, Jr., Judith A. Stewart, Vanguard Construction Company, Inc., a Florida Corporation, and Associated Housing Corporation, a Florida Corporation, Appellants, v. Norman H. COHAN and Frederick Wise, Appellees.
    No. 77-2132.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.

      Jerome Bill Ullman, Miami, for appellants.
    Heller & Kaplan and Robert Golden, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL, Associate Judge.

The appellants, defendants below, appeal from a final summary judgment for $190,-000.00 plus certain interest, entered against them on Count III of the plaintiffs’ three count complaint.

The plaintiffs Norman H. Cohan and Frederick Wise alleged that the above styled corporate defendants were owned and controlled by the above named individual defendants; that on or about September 22, 1972, the defendants, as limited or general partners, were members of a partnership designated as Monterey Apartments of Tallahassee, Ltd., through which they were engaged in a building project; that the defendants induced the plaintiffs to pay them $190,000.00 for a fifty percent interest in the partnership, which plaintiffs did, thereby becoming limited partners; and that to induce plaintiffs to do so the defendants made certain false representations.

Attached to the complaint were several documents. One was an instrument designated as a guarantee, by which the defendants agreed they would furnish the money, over and above the mortgage commitment amount of $2,250,000.00, which should be needed to complete the project.

In the three counts of the complaint, the defendants were charged with having misrepresented the financial condition of the partnership, and their financial ability to complete the project. The first count further alleged the defendants had not intended to comply with their agreement to supply the money to complete the project, and they did not supply such funds, with the result that the mortgage was foreclosed, and thereby the plaintiffs lost the amount of their investment, for which sum they sought recovery.

In Count II it was alleged that defendants’ inducement of the plaintiffs to so invest in the partnership was made at a time when the building project was “in financial difficulty”; that defendants knew they did not possess financial ability to complete the project and had not intended to do so, and that by reason of the failure of the defendants to supply the funds necessary therefor, the foreclosure occurred, and the plaintiffs’ interests were “wiped out,” for which plaintiffs sought damages.

In Count III the basic allegations were repeated, including allegations that while knowing they lacked financial ability to complete the project, the defendants represented they had such financial ability, as a means of inducing plaintiffs to invest in the partnership, which plaintiffs did in the amount of $190,000.00; and that by reason of the failure of the defendants to comply with their undertaking to supply the money needed to complete the project, “the subject property has become a financial fiasco and the plaintiffs have lost the monies which they have invested therein”; whereupon the plaintiffs sought damages.

Following answer by defendants, the plaintiffs moved for summary judgment. Certain depositions were taken. It was made evident that the project had failed for want of money to complete it. Evidence relating to the alleged misrepresentations by defendants was inconclusive. The trial court entered a final summary judgment on Count III, granting judgment to plaintiffs against the defendants for $190,000.00 with interest from the date of the filing of the action, and with provision for the issuance of execution. The court reserved jurisdiction for further proceedings on Counts I and II in event of reversal of the judgment. This appeal by defendants ensued.

What the plaintiff limited partners sought and obtained by the (partial) final summary judgment was to receive from the general partners a return to plaintiffs of their partnership contributions. That is apparent, because the judgment was for the amount of their contributions, and there was no showing or proof of damages, other than loss of their contributions, as a result of the alleged misrepresentations of defendants or for alleged failure or refusal of defendants to supply the funds needed to complete the project.

To the extent that it was based on plaintiffs’ allegations of fraud, the summary judgment was not justified. As stated in Hermes v. Anton, 300 So.2d 46, 47 (Fla. 3d DCA 1974), “Generally, the issue of fraud is not a proper subject of a summary judgment. Fraud is a subtle thing requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud. Automobile Sales, Inc. v. Federated Mutual Implement and Hardware Insurance Co., Fla.App.1972, 256 So.2d 386 and cases cited therein.”

That principle is applicable here. The alleged fraud of defendants, as a basis for recovery by plaintiffs, was not established beyond issue, so as to prompt summary judgment. On the contrary, the appellants-defendants point to some evidence in the record which appears to refute certain of the plaintiffs’ fraud claims.

As an alternative ground of support for the judgment, the appellees argue the judgment was properly entered against defendants for a breach of the defendants’ “guarantee.” We hold that contention is without merit. By the instrument referred to, a copy of which was attached to the complaint, the defendant partners agreed (1) that the project would be completed in accordance with the plans and specifications, and (2) that they would provide the funds necessary therefor, over and above the $2,500,000.00 mortgage. The document did not contain any agreement by the defendant partners to repay or reimburse the plaintiff partners for the amount of the latters’ contributions if the project should fail, for their failure to supply such funds or any other reason. That document could not be the basis for granting to plaintiffs a judgment against the defendants for a return of plaintiffs’ contributions to the partnership.

Moreover, as pointed out by appellants, with this partnership being insolvent, receipt by the plaintiff limited partners of their contributions from the defendant partners, which the judgment would accomplish, would be contrary to the express provision of the Uniform Limited Partnership Law, Section 620.16, Florida Statutes (1977). See Kochis v. Mills, 233 Ga. 652, 212 S.E.2d 823 (1975).

For the reasons stated, the summary judgment is reversed.

      . As to the impropriety of granting the partial final summary judgment prior to judgment on the entire action, see Pena v. Tampa Savings & Loan Association, 363 So.2d 815 (Fla. 2d DCA 1978); Pointer Oil Company v. Butler Aviation of Miami, Inc., 293 So.2d 389 (Fla. 3d DCA 1974); Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971); Fontainbleau Hotel Corp. v. Young, 162 So.2d 303 (Fla. 3d DCA 1964).


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Richard E. KIIBLER, as Administrator of the Estate of Carol Sue Brown Kiibler, Deceased, et al., Appellees.
    Nos. 77-2223, 77-2507.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 6, 1978.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellant.
    Edward C. Vining, Jr. and Richard A. Burt, Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appel-lees.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings these consolidated appeals from two orders entered by the trial court awarding attorneys’ fees in favor of appellees. We reverse.

On December 26, 1974, Pamela Stockton, Carol Kiibler and Donald McCray were occupants of an automobile which was traveling at an excessive rate of speed. The car left the roadway, struck a bridge abutment, crossed a canal, and flipped over. Both Stockton and Kiibler were killed instantly. McCray suffered serious personal injuries. Simon Stockton, surviving husband of Pamela Stockton, filed a wrongful death case against Martinez, the alleged owner of the vehicle, McCray, the alleged driver of the vehicle, and United Services Automobile Association (USAA), McCray’s insurance company. Martinez filed an answer and cross-claim denying ownership of the vehicle at the time of the accident. USAA filed an answer and cross-claim for a declaratory judgment on the question of insurance coverage. It alleged that the car was not an insured vehicle under its policy. USAA answered Martinez’s cross-claim by alleging that McCray owned the vehicle at the time of the accident. McCray denied the material allegations of the cross-claim.

Kiibler, the surviving husband of Carol Kiibler, also filed a wrongful death case. The defendants filed the same answers and cross-claims which were filed in Stockton’s case.

McCray filed a declaratory judgment action to determine insurance coverage. USAA filed an answer and counterclaim in which it denied coverage and requested the trial court to adjudicate the coverage question.

These cases were consolidated. Stockton and Kiibler dropped Martinez as a party defendant.

USAA specifically denied coverage in each case on the grounds that the car was not an insured vehicle under the policy for which a premium had been paid and that it was- not a temporary substitute automobile. USAA also moved to sever the coverage issue and to abate the death cases pending the coverage determination. This motion was denied.

Stockton and Kiibler filed motions for summary judgment on the coverage issues raised in USAA’s pleadings. The trial court granted the motions and USAA appealed. McCray filed a motion for summary judgment in his declaratory judgment action. The trial court granted McCray’s motion, and USAA appealed. These appeals were consolidated and this court affirmed the orders granting summary judgment on coverage.

The two death cases were brought to trial while the coverage appeals were pending. The trial lasted four days and ended with the jury awarding $40,000 to each estate, but nothing to the two husbands. Stockton and Kiibler moved for a new trial on damages, and the trial court granted the motions.

Before the cases were retried, both Stockton and Kiibler settled with McCray. The settlements provided that each of the estates would receive $50,000 and each of the husbands would receive $150,000. The settlements also provided that McCray would not be personally liable for payment of these sums. Instead, Stockton and Kiibler would look solely to USAA for payment.

After this court affirmed the trial court’s coverage determination, McCray, Stockton, and Kiibler moved the trial court to award them reasonable attorneys’ fees, pursuant to Section 627.428, Florida Statutes (1975), for the trial work which resulted from USAA’s denial of coverage. Stockton amicably resolved the issue of his attorneys’ fees with USAA. The trial court held evi-dentiary hearings on the attorneys’ fees issues and, thereupon, awarded McCray $100,000 and Kiibler $45,000.

We have carefully reviewed the record in regard to Kiibier’s award of attorneys’ fees and have concluded that the trial court abused its discretion in making the award because it failed to differentiate, in considering the evidence, between the attorneys’ time spent in working on the liability and coverage issues.

It is well settled in this State that a successful tort claimant is not entitled to attorney’s fees for litigating the tort-fea-sor’s liability. The claimant is only entitled, pursuant to Section 627.428, to a reasonable fee for litigating the issue of insurance coverage. See, e. g., Wilder v. Wright, 278 So.2d 1 (Fla.1973); Central National Insurance Co. v. Gonzalez, 295 So.2d 694 (Fla. 3d DCA 1974); and Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974).

Further, we have also carefully reviewed the record in regard to McCray’s award of attorneys’ fees and have concluded that the trial court abused its discretion in making the award because it was excessive in the light of the evidence contained in the record. An attorney who requests a court awarded fee has the burden of proving his entitlement to the fee. Also, in setting the fee, the trial court must, as we expressed in Dade County v. Oolite Rock Co., 348 So.2d 902 (Fla. 3d DCA 1977), and Dade County v. Oolite Rock Co., 311 So.2d 699 (Fla. 3d DCA 1975), take into account several factors in setting an award. In McCray’s case, the trial court abused its discretion by failing to properly consider the factors set forth in the Oolite cases and by basing its award upon inadequate evidence.

Accordingly, for the reasons set forth above, the orders appealed, awarding attorneys’ fees to McCray and Kiibler are reversed and the causes are remanded to the trial court for further proceedings to determine the appropriate amount of their attorneys’ fees.

Reversed and remanded with instructions.

      . USAA stipulated with Kiibier’s attorneys that it would not argue that Kiibier’s attorneys were not entitled to any attorneys’ fees because they represented a third part beneficiary. Appellant USAA concedes, in the light of this stipulation, that it is appropriate to adjudicate this case on the basis of the law which pre-dates Roberts v. Carter, 350 So.2d 78 (Fla.1977) (third party beneficiary not entitled to attorney’s fees under Section 627.428, Florida Statutes).


text:
    The SECOND NATIONAL BANK OF NORTH MIAMI, Appellant, v. G.M.T. PROPERTIES, INC., etc., et al., Appellees.
    No. 77-2482.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.

      Fromberg, Fromberg & Roth, Miami and Michael A. Berke, Ress, Gomez, Rosenberg & Howland, North Miami, for appellant.
    H. Robert Koltnow, Miami, for appellees.
    Before HAVERFIELD, C. J. and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

The plaintiff, The Second National Bank of North Miami, attempted to foreclose a mortgage supported by a note which it took on assignment. The trial court found that the Bank was not a holder in due course and that the note and mortgage were subject to the defense that they were fraudulently procured by Avance Enterprises, Inc. After trial, the court held that the mortgage was fraudulently procured and can-celled the mortgage instead of reforming the note and mortgage.

On this appeal, it is urged by the Bank, as appellant, that the determination that it was not a holder in due course was the application of an incorrect rule of law. The facts concerning the transaction as they affect the Bank’s standing as a holder in due course are not in dispute. The Bank took the mortgage on assignment without an endorsement of the note and did not notify the maker of the note of the assignment until payment of interest was due. The conclusion of the trial judge that the Bank was not entitled to claim as a holder in due course is fully supported by Section 673.202, Florida Statutes (1977), which provides as follows:

“673.202 Negotiation. —
“(1) Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement; if payable to bearer it is negotiated by delivery.
“(2) An indorsement must be written by or on behalf of the holder, and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.
“(3) An indorsement is effective for negotiation only when it conveys the entire instrument or any unpaid residue. If it purports to be of less it operates only as a partial assignment.
“(4) Words of assignment, condition, waiver, guaranty, limitation or disclaimer of liability and the like accompanying an indorsement do not affect its character as an indorsement.”

The appellant Bank also urges that the finding of fraud in the procurement of the note and mortgage is not sufficient to support a cancellation of the note and mortgage. The factual findings contained in the final judgment as they relate to the fraud are as follows:

“a. Relying on the fraudulent representations of AVANCE ENTERPRISES, INC., G.M.T. PROPERTIES, INC., purchased Tract ‘M’ together with plans, specifications, building permits, and governmental approval for the construction of an 81-unit apartment building, for an agreed purchase price of $243,000.00, paying in cash at the time of closing $117,-500.00 and giving its note and purchase money mortgage for the balance of $125,-500.00.
“b. G.M.T. PROPERTIES, INC., relying on the fraudulent representations of AVANCE PROPERTIES, INC., and the issuance of the permit by Monroe County of an 81-unit apartment building on the said Tract ‘M’, did not need to make any further inquiry concerning the misrepresentation of the dimension of Tract ‘M’. The Court finds that the misrepresentation was made by a licensed engineer with the authority to make such representations, and the approval by the building authority does not cause the defendant G.M.T. PROPERTIES, INC., to be negligent under such circumstances in failing to learn that 81 units could not be placed on said mortgaged premises.
“c. That subsequent zoning restrictions further decrease the value of the land in restricting the number of units that may be constructed on the premises, reducing the number of units even less than the number of units which could have been placed on the parcel of land purchased.
“d. The Court finds THE SECOND NATIONAL BANK OF NORTH MIAMI acted unseemly in not only. failing to make itself a holder in due course as adjudicated by the Court, but also failed to give proper and timely written notice of the assignment of the $125,500.00 mortgage and the several renewals of the $100,000.00 promissory note, including the renewal of said note after the complaint for foreclosure was filed.
“e. Testimony reveals that Parcel ‘M’ has a value of approximately $60,000.00 at the time of hearing, being far less than the cash consideration paid at the time of closing, and the Court is of the opinion that the defendant is entitled to a cance-lation of the purchase money mortgage since the defendant was induced to purchase by fraud and misrepresentation of the seller, and the plaintiff, by its own negligence, is not a holder in due course and is subject to all the defenses available to the defendant against the original mortgagee, AVANCE ENTERPRISES, INC.”

We find that the record contains competent, substantial evidence to support these findings and appellant’s attack upon them must fail.

The relief granted by the trial judge is appropriate to the situation and is approved under circumstances similar to this case in the holdings of Lake Region Hotel Co. v. Gollick, 111 Fla. 64, 149 So. 205 (1933); and Firstbrook v. Buzbee, 101 Fla. 876, 132 So. 673 (1931). See also Platt v. Deese, 298 So.2d 573 (Fla. 1st DCA 1974).

Appellant’s remaining point directed to the finding of the court concerning the value of the property is not supported by the record. It is clear that that portion of the final judgment referring to value at the time of trial is the trial judge’s attempt to show that cancellation is not an inequitable remedy under the circumstances of this case.

Affirmed.

      . the original mortgagee


text:
    WOMETCO ENTERPRISES, INC., Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellee.
    Nos. 77-2619, 78-1.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.
    Young, Stern & Tannenbaum and Burton Young and Aaron A. Foosaner, North Miami Beach, for appellant.
    Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See United States Fire Insurance Co. v. Morejon, 338 So.2d 223 (Fla.3d DCA 1976); Stewart v. State Farm Mutual Insurance Co., 316 So.2d 598 (Fla.1st DCA 1975); Rakoff v. World Insurance Co., 191 So.2d 476 (Fla.3d DCA 1966).


author: CROSS, Judge.

text:
    STATE of Florida ex rel. CITY OF FORT LAUDERDALE, Broward County, Florida, for the use and benefit of Fort Lauderdale Police Department, Appellant, v. Nicholas Leander FRANZER and 1974 Chevrolet Corvette VIN: 1Z67J4S405133, Appellees.
    No. 76-696.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellees.
   CROSS, Judge.

The State of Florida, ex rel. City of Fort Lauderdale, appeals from an order denying forfeiture of a motor vehicle and directing its return to the owner. We reverse.

On October 14, 1975 Nicholas Franzer was arrested, along with Arthur J. Curcuru-to, by officers of the Fort Lauderdale Police Department for the sale of a quantity of marijuana. Mr. Franzer’s 1974 Chevrolet Corvette automobile, which was used to transport the contraband to the scene of the sale, was impounded. Eventually, Mr. Franzer pled nolo contendere to the charge of delivery and possession of marijuana for which he received a sentence of three years probation. Adjudication of guilt was withheld.

Subsequently, the State Attorney for Broward County instituted forfeiture proceedings against Mr. Franzer’s automobile on behalf of the Fort Lauderdale Police Department. After hearing upon a stipulated statement of facts, the circuit court denied the Petition for Rule to Show Cause, and ordered the automobile released to the appellee with all costs incident to its storage to be absorbed by the Fort Lauderdale Police Department. This appeal then followed.

Florida’s Uniform Contraband Transportation Act, §§ 943.41, et seq., sets forth the guidelines for institution of forfeiture proceedings. Section 943.44 provides in relevant part:

(1) The state attorney within whose jurisdiction the vessel, motor vehicle, or aircraft has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband as herein defined may proceed against the vessel, motor vehicle, or aircraft by rule to show cause in the circuit court within the jurisdiction in which the offense occurred and may have such vessel, motor vehicle, or aircraft forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the vessel, motor vehicle, or aircraft was being used in violation of the provisions of said law.

Recently, in Griffis v. State, 356 So.2d 297 (Fla.1978), the Florida Supreme Court interpreted this statute to authorize forfeiture upon a showing that the vehicle was involved in the furtherance of an illegal drug “operation.” The law is “directed at the transportation of controlled substances for distribution.” (Id., at 302).

In the instant case, the record reflects that appellee’s automobile was used as the delivery vehicle in a scheme to promote the distribution of a quantity of marijuana. Use of a vehicle to deliver marijuana for sale is clearly sufficient to bring into play the forfeiture provisions of Section 943.44, Florida Statutes.

Accordingly, the order of the trial court denying forfeiture is reversed, and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

ANSTEAD and DAUKSCH, JJ., concur.


author: BERANEK, Judge. DOWNEY, Chief Judge,

text:
    PALM COAST OXYGEN, a division of Mid-Florida Corporation, a Florida Corporation, Petitioner, v. Francis A. PELKEY and the Division of Employment Security of the Department of Commerce, Respondents.
    No. 77-765.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Julian K. Dominick, Jr., of Fishback, Davis, Dominick & Simonet, Orlando, for petitioner.
    Kenneth H. Hart, Jr., Tallahassee, James R. Parks, Miami, and Stephen L. Buzzell, Saranac Lake, N.Y., for respondents.
   BERANEK, Judge.

The petitioner was the employer of the respondent in this unemployment compensation contest. Respondent was discharged and filed a claim for benefits under the Florida Unemployment Compensation Law. Petitioner responded to the claim by asserting that respondent had been discharged for misconduct on the job. A fact finding report was prepared by a claims interviewer. A claims examiner determined that respondent’s conduct had constituted misconduct connected with his work and that respondent was therefore disqualified from receiving benefits. A notice of appeal was filed and a hearing occurred before the Appeals Referee. The Appeals Referee took testimony and determined that respondent was discharged for misconduct connected with his employment and was thus disqualified from receiving benefits. The employee/respondent filed an appeal with the Industrial Relations Commission which by its order of March 28, 1977, reversed the decisions below. The reason stated in the order of the Industrial Relations Commission was that all of the evidence supporting the holding of misconduct was hearsay.

The matter is now before us on petition for writ of certiorari filed by the petitioner/employer. We note initially that the rules of procedure for hearings before Appeals Referees forbid basing of a finding solely upon hearsay. Florida Administrative Code Rule 8B-5.11(3)(c). The standard for review on this petition for certiorari is whether there was substantial competent evidence to support the factual findings of the Appeals Referee. If such evidence exists, then the findings of the Referee must be upheld. See, Bagwell Lumber Co. v. Florida Department of Commerce, Division of Employment Security, 353 So.2d 1261 (Fla.2d DCA 1978).

In the instant situation we find adequate, substantial, competent evidence to support the findings of the Appellate Referee and the order of the Industrial Relations Commission must, therefore, be quashed.

Adequate non-hearsay evidence was present from which the Appeals Referee could have found that respondent was guilty of misconduct. The issue below was whether respondent had properly delivered and picked up gas cylinders. Numerous customers complained and hearsay testimony was admitted concerning these complaints. In addition, respondent himself testified about his activities, and the manager of the petitioner’s operations testified that he personally viewed empty gas cylinders which had not been picked up in accordance with direct instructions he gave to respondent.

Under all of these circumstances, the order of the Appeals Referee should not have been disturbed.

The writ of certiorari is granted and the decision of the Industrial Relations Commission is quashed and the decision of the Appeals Referee reinstated.

MOORE, J., concurs.

DOWNEY, C. J., dissents with opinion.

DOWNEY, Chief Judge,

dissenting:

The Industrial Relations Commission’s finding that the decision of the Appeals Referee was based solely upon hearsay in violation of Rule 8 B — 5.11(3)(c) of the Florida Administrative Code seems to be erroneous. There is, as pointed out by the majority, some evidence in the record other than hearsay upon which the Appeals Referee might conclude as he did. Whether that evidence, considered in conjunction with the hearsay “which has substantial probative effect,” is adequate to meet the test of competent substantial evidence in the eyes of the Commission is the unknown quantity here. .Thus, I would opt for a remand of the cause to the Industrial Relations Commission so that it might pass on that question rather than a quashal and reinstatement of the order of the Appeals Referee at this juncture.


text:
    Robert Harry BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 77-1270.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese and Kathleen J. Kroll, Legal Intern, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The recent decision of the Florida Supreme Court in Clark v. State, 363 So.2d 331 (Fla.1978), is controlling as to the issue of improper comment concerning the defendant’s exercise of his right to remain silent. The court has considered appellant’s remaining issue and finds it without merit.

AFFIRMED.

CROSS and MOORE, JJ., and PAUL, MAURICE M., Associate Judge, concur.


text:
    BLISS AND LAUGHLIN INDUSTRIES, INC., Appellant, v. William Lee MALLEY and Mary Ann Malley, and Realtek Real Estate, Inc., a corporation, Appellees. REALTEK REAL ESTATE, INC., Appellant, v. BLISS AND LAUGHLIN INDUSTRIES, INC., William Lee Malley and Mary Ann Malley, Appellees. TEQUESTA PROPERTIES, INC., Appellant, v. William Lee MALLEY and Mary Ann Malley, Bliss and Laughlin Industries, Inc., and Realtek Real Estate, Inc., a corporation, Appellees.
    Nos. 77-1276, 77-1487 and 77-1477.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    James L. S. Bowdish, of Crary, Buchanan & Meginniss, Stuart, for appellants, Bliss & Laughlin and Tequesta Properties.
    Timothy W. Gaskill, of DeSantis, Cook, Meehan & Cohen, P. A., North Palm Beach, for appellant-Realtek Real Estate.
    Robert V. Romani, of Farish & Farish, West Palm Beach, for appellees-Malley.
   CROSS, Judge.

These consolidated appeals are brought to review a final judgment entered in favor of the plaintiffs, William L. Malley and Mary Ann Malley, his wife, granting rescission of certain contracts for sale of land as well as awarding damages for negligent misrepresentation. We reverse.

Numerous points have been raised by these consolidated appeals, only one of which has merit, i. e., the trial court refusing to compel the plaintiffs to elect between inconsistent remedies.

The doctrine of election of remedies prevents a party from availing himself simultaneously of inconsistent remedies. Klondike, Inc. v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968). Generally, if a party is injured by the purchase of land because of the fraudulent misrepresentations of the vendor or his agents, the vendee may seek redress through rescission of the conveyance in equity or by the recovery of damages in an action at law. Weeke v. Reeve, 65 Fla. 374, 61 So. 749 (1913). The remedies of rescission and damages are co-existent and inconsistent since the former is predicated upon a disavowal of the contract of sale while the latter is based upon its af-firmance. Deemer v. Hallett-Pontiac, Inc., 288 So.2d 526 (Fla.3d DCA 1974). See also Hauser v. Van Zile, 269 So.2d 396 (Fla. 4th DCA 1972). Thus, the trial court erred in entering final judgment granting both rescission of the contracts of sale as well as awarding damages for negligent misrepresentation.

Accordingly, the final judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

MOORE, J., and PAUL, MAURICE M., Associate Judge, concur.


text:
    Ivory Charles BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1296.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals asserting error regarding the State’s closing argument. In closing the prosecutor commented on defendant’s failure to call certain witnesses. The trial court correctly overruled an objection to this argument. The prosecutor’s comment about the absence of witnesses who had obvious knowledge of the defense asserted by defendant was not improper. See, Buckrem v. State, 355 So.2d 111 (Fla.1978); Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975), and Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975).

The judgment is, however, subject to attack because it provides for a sentence at hard labor. McDonald v. State, 321 So.2d 453 (Fla.4th DCA 1975). The judgment is modified by deletion of the reference to hard labor and is hereby affirmed as modified.

AFFIRMED as MODIFIED.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.


text:
    Roosevelt SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 77-1629.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal from the trial court’s summary denial of a pro se motion to vacate filed under Rule 3.850 of the Florida Rules of Criminal Procedure. The appeal predates the 1977 revision of the Florida Rules of Appellate Procedure and is thus not governed by Rule 9.140(g).

The order appealed states that the 3.850 motion was denied because it was, “not in substantial compliance with the requirements of Rule 3.850 Fla.R.Crim.P., effective on July 1, 1977.” One clear omission from the motion was the failure to state whether defendant had filed any previous postcon-viction motions. Since Rule 3.850 specifically provides that the sentencing court shall not be required to entertain a second or successive motions for similar relief, the omission of this information cannot be considered inconsequential or nonsubstantial.

Under these circumstances, instead of filing an appeal, defendant could have simply filed a new 3.850 motion and supplied the omission. The defendant/appellant’s brief before this court filed by the Public Defender now seeks leave to refile the motion before the trial court. We are not at all certain that leave of this court is necessary, but it is certainly granted. See McClendon v. Wainwright, 280 So.2d 703 (Fla. 4th DCA 1973). It is not our intention to require overly technical rule compliance in all pro se pleadings. However, Rule 3.850 was specifically designed for the unrepresented. Indeed, Rule 3.987 of the Florida Rules of Criminal Procedure provides a complete fill-in-the-blanks type form to assist prisoners in preparing their 3.850 motions.

We find that the trial court correctly denied the motion to vacate herein for the reasons stated in the order and the order below is, therefore, affirmed.

AFFIRMED.

CROSS and LETTS, JJ., concur.

      . See Committee Note to Rule 3.850. It should also be noted that the defendant was represented by the Public Defender at trial, on motion for new trial, and on a full appeal before this Court. It was only after his unsuccessful appeal on the merits that the defendant filed a pro se motion based on Rule 3.850. This 3.850 motion relied primarily on alleged incompetence of the Public Defender at trial. The pro se 3.850 motion was denied and once again, the Public Defender is representing the defendant on his second appeal before this court questioning the denial. The Public Defender here asserts and argues in favor of appellant’s incompetent counsel argument.