author: WALDEN, Chief Judge.

text:
    Marcella SCHETTER, Appellant, v. C. B. SCHETTER and Ernest Tashea et al., Appellees.
    No. 74-1537.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.

      Eugene Orsher of Law Offices of John R. Harrington, Fort Lauderdale, for appellant.
    Thomas Duff and J. Carrington Gram-ling, Jr., of Duff, Brown & Gramling, Miami, for appellee Schetter.
   WALDEN, Chief Judge.

The wife in this dissolution action appeals from the amended final judgment. In a previous appeal, Schetter v. Schetter, 279 So.2d 58 (4th DCA Fla.1973), this court partially reversed the final judgment and remanded with instructions that the wife be allowed to recover all properties she had conveyed to Tashea. The rest of the final judgment was affirmed, specifically the provision that the husband was entitled to one-half of all assets heretofore belonging to both or either of the parties to the marriage.

Upon remand, however, the trial court went beyond the confines of this mandate, Bryan and Sons Corp. v. Klefstad, 265 So.2d 382 (4th DCA Fla.1972); Fairfax Broadcasting Company v. Florida Automotive, Inc., 252 So.2d 854 (4th DCA Fla.1971).

The portion of the final judgment reversed, provided:

“MARCELLA SCHETTER be, and she is hereby estopped from recovering any property she has conveyed to ERNEST R. TASHEA. This shall particularly include the assets listed in the preceding paragraph.”

The trial court went beyond the scope of its mandate when, on remand, it ordered that the wife should be responsible for court costs for which in the final judgment Tashea had been responsible. While we are in sympathy with the motives of the trial court, that taxation of costs should follow the award of assets, this amendment went beyond the scope of the trial court’s mandate and must be reversed.

Likewise, we reverse that portion of the amended final judgment wherein Tashea is allowed to retain the ownership of ABC Answering Service, Inc. This court held that the wife should be allowed to recover all assets she had conveyed to Tashea. As ABC Answering Service, Inc. was acquired with funds of the wife, she and husband should each have been granted a one-half interest in that corporation.

Lastly, in the amended final judgment the trial court noted that the parties had approved the sale of their home, and further determined that the furniture in the house belonged to Tashea. The furniture was not mentioned specifically in the final judgment. When all provisions of the final judgment were affirmed, with the exception noted, the judgment became a judgment of the appellate court and, as such, was not subject to interference by the trial court without specific permission. Acme Specialty Corporation v. City of Miami, 292 So.2d 379 (3rd DCA Fla. 1974); Jefferson National Bank at Sunny Isles v. Metropolitan Dade County, 285 So.2d 445 (3rd DCA Fla.1973). This determination was an unauthorized amendment to the final judgment and must be reversed. City of Miami Beach v. Arthree, Inc., 300 So.2d 65 (3rd DCA Fla.1973).

We affirm the provision of the amended final judgment concerning the disposition of the monies in the Goodbody & Company account. By the provisions of the original final judgment this account was made subject to litigation. Subsequent to the final judgment, this dispute was litigated. Hence, in accord with the provisions of the final judgment, the trial court correctly determined that both the husband and wife are entitled to one-half of the proceeds.

In summary, we reverse those provisions of the trial court’s Amended Final Judgment taxing costs to the wife, leaving the ownership of ABC Answering Service, Inc., in Tashea and determining that Tash-ea owned the furniture. We affirm the provision concerning the Goodbody & Company account.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, J., and LEE, THOMAS E., Associate Judge, concur.


source: Caselaw Access Project

author: NATALIE BASKIN, Associate Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Henry James WOODSON, Appellee.
    No. 75-49.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.

      David H. Bludworth, State Atty., and James C. Gavigan, Asst., State Atty. Gen., Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellee.
   NATALIE BASKIN, Associate Judge.

This is an appeal by the State from an order granting defendant a new trial. The trial judge found that although each of the three alleged errors committed during trial by jury might well have been harmless, the conjunction of the three took the case out of the harmless error category.

Defendant was tried and convicted of possession of barbiturates and of sale of barbiturates. During the trial the officer testified on direct examination that he and an undercover policeman arranged a rendezvous point at a motel and would go over the “known dealers”. The Court sustained an objection to the alleged error, denied Motion for Mistrial and gave a curative instruction.

The second alleged error occurred during cross-examination of the undercover agent by defense counsel. The witness was asked if he had ever seen the defendant before the date specified. He replied: “Yes, I had. Well, not personally. I had seen him before from mug shots.” No objection was made at this time. After the jury was excused for the night, defense counsel made a Motion for Mistrial. Defense counsel refused a curative instruction. Motion for Mistrial was denied.

The third alleged error upon which Order Granting New Trial was predicated was a reference by the prosecutor in closing argument to defendant as a convicted felon when defendant had testified only that he had been convicted of a crime.

The third error caused the trial Court to find that the conjunction of three harmless errors required a new trial. It appears from the record, however, that the third error did not actually occur; the prosecutor stated only that defendant had been in trouble before and had been convicted.

We find that the two remaining errors upon which Motion for New Trial was granted were harmless error and we reverse.

A reference to mug shots has been held by the Supreme Court of Florida, Loftin v. State, 273 So.2d 70 (Fla. 1973), to be error, but harmless under some circumstances. A reference to mug shots is generally held to be error since it may convey to the jury that defendant has previously committed a crime. Defendant admitted on direct examination that he had previously been convicted one time; reference to mug shots, was therefore, harmless error. Peterson v. State, 293 So.2d 762 (Fla.App.1974).

Furthermore, no objection was made at the time and the offer to give a curative instruction was rejected. Anderson v. State, 230 So.2d 704 (Fla.App.1970). Gagnon v. State, 212 So.2d 337 (Fla.App.1968).

The comment regarding known ‘ drug dealers was also harmless error, as the trial Court originally ruled. The testimony was elicited at the beginning of the trial, did not refer to defendant and was cured by an instruction from the Court.

In summary, two errors upon which Order Granting New Trial was predicated were harmless. The third alleged error did not occur. No miscarriage of justice occurred nor were substantial rights of defendant injuriously affected. Florida Rules of Criminal Procedure 3.600.

Although the granting of a Motion for New Trial is an exercise of the broad discretion of the trial judge which should not be disturbed in the absence of a clear showing of abuse of discretion, Hanson v. State, 187 So.2d 54 (Fla.App.1966), and State v. Trafficante, 136 So.2d 264 (Fla.App.1962), we find the trial judge did abuse his discretion in granting appellee a new trial.

Reversed and remanded.

MAGER and DOWNEY, JJ., concur.


author: DOWNEY, Judge.

text:
    John J. CHOPAN and Dorothy S. Chopan, his wife, Appellants, v. Myron F. KLINKMAN et al., Appellees.
    No. 75-175.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.
    John B. Ritch of Overstreet & Ritch, Kissimmee, for appellants.
    James M. Meade, of Giles, Hedrick & Robinson, Orlando, for appellees.
   DOWNEY, Judge.

Appellants conveyed the realty involved in this suit to appellees Mr. and Mrs. Klinkman subject to a mortgage to First Federal Savings & Loan Association of Orlando. As part of the transaction appellants received from the Klinkmans a second mortgage which included a promissory note that contained the following- provision :

“In the event that this property is sold by the maker(s) herein the mortgagee(s) shall have the right to declare the unpaid balance, including interest due and payable at their option.”

Appellants commenced this action to foreclose their second mortgage, alleging the Klinkmans were in default “due to the fact that on February 1, 1974, they sold the property encumbered by entering into an agreement for deed to sell said property to Robert J. McCreight and Nancy J. McCreight without the prior knowledge or consent of the plaintiff . . . .” The trial judge granted a motion to dismiss the complaint with prejudice and appellants seek review of that judgment.

Since it is undisputed that the appellees entered into an agreement for deed with Mr. and Mrs. McCreight, the essential question involved in this appeal is whether the agreement for deed involved herein constitutes a sale of the property as between the contracting parties thereto so as to give appellants a right to accelerate the balance of their mortgage. The agreement for deed in question is a routine agreement for deed by which the contract vendors agreed that if the contract vendees made the payments and kept the other covenants provided for therein the vendors would convey to the vendees the described property. Thereafter followed the financial terms of the contract calling for installment payments and payment of taxes and insurance on the property by the vendees. The vendees also agreed to not permit any wasting of the property, to keep it free and clear of liens, and to not assign the contract without written approval of the vendors. Finally, the contract contained a clause providing that the vendees forfeited all payments and rights under the contract in the event of default.

We hold that the execution of an agreement for deed such as the one described here, because it provides for conveyance of absolute title in the future, does not constitute a sale so as to permit the appellants to foreclose their mortgage under the acceleration clause of the mortgage note.

This court in Martyn v. First Fed. Sav. & L. Ass’n, Fla.App.4th 1972, 257 So.2d 576, cited with approval several definitions of the term “sale”:

“Black’s Law Dictionary, Revised 4th Edition, defines ‘sale’ as follows:
“ ‘A contract whereby property is transferred from one person to another for a consideration of value, implying the passing of the general and absolute title, as distinguished from a special interest falling short of complete ownership.’ (Emphasis supplied.)”
“28. Fla.Jur., Sales, § 4, defines sale asa ‘. . . transmutation of property from one person to another in consideration of some price or value. It is a contract whereby the absolute or general ownership of property is transferred from one person to another for a price, or for any consideration.’ (Emphasis supplied.) . . . .”
“ ‘Blackstone defines a sale to be: “a transmutation of property from one man to another in consideration of some price or recompense in value,” ... A sale has frequently been defined as ‘transfer of the absolute or general property in a thing for a price in money,’ which the buyer pays or promises to pay for the thing bought and sold . . . ■ A sale is the transfer of the general or absolute, as distinguished from a special, property in a thing. A sale is said to be an entire and absolute transfer of the thing sold, without reservation.’ ”

In Franzke v. Fergus County, 76 Mont. 150, 245 P. 962 (1925), the Supreme Court of Montana construed a conditional sales agreement where the legal title was to remain in the contract vendor, to be an agreement to sell, rather than a sale. The court stated:

‘There may be, first, a sale of lands; second, an agreement to sell land. * * The first is the actual transfer of title from grantor to grantee, by appropriate instrument of conveyance. The second is a contract to be performed in the future, and, if fulfilled, results in a sale. It is a preliminary to a sale, and is not the sale. Breaches, rescission or release may occur, by which the contemplated sale never takes place. * * ”

The Franzke case (among others) is cited at 8A, Thompson on Real Property, § 4442, p. 253 (1963 Replacement), to support the statement that “[a] contract to sell land on the installment plan is a contract to sell, not a sale.” The recurring principle in the foregoing authorities is that a transaction which provides for a conveyance of legal title at a future time upon the occurrence of specified contingencies is not a sale.

Our conclusion that under the circumstances of this case, the agreement for deed is not a sale so as to permit acceleration of the note and foreclosure of the mortgage, is reinforced by the following idea. While an acceleration clause is a valid contractual provision, in enforcing such a clause, a court of equity should require the showing of a clear, unequivocal right to forthwith call due the balance of the debt. As stated in 10 C.J.S. Bills and Notes § 251, page 748:

“An acceleration clause is to be construed as any other provision in a contract, and is to be governed by the usual rules applicable to the construction of contracts. It has been held, however, that a contract to accelerate the maturity of a debt gives a remedy that is harsh in its nature, and provision therefor, in order to be effective, should be clear and unequivocal; and, if there is a reasonable doubt as to the meaning of the terms employed, preference should be given to that construction which will avoid the forfeiture and prevent acceleration of maturity.”

We have considered appellants’ other points on appeal and find them to be without merit.

AFFIRMED.

OWEN, J., and NESBITT, JOSEPH, Associate Judge, concur.


author: PER CURIAM.

text:
    Leroy SLAUGHTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-927.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.

      Warner S. Olds, Public Defender, 17th Judicial Circuit, William W. Herring and Stuart M. Lerner, Asst. Public Defenders, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Joel D. Rosenblatt, Miami, Basil Diamond, West Palm Beach, Asst. Atty. Gen., and Carl B. Schwait, Legal Intern, Miami, for appellee.
   PER CURIAM.

Upon review of the record on appeal and after due consideration of the briefs and oral argument we are constrained to hold that reversible error occurred when defendant’s claim of alibi and witness list in support thereof were excluded by the trial court without first inquiring into the surrounding circumstances. Barnes v. State, 294 So.2d 679 (Fla.App.1974); Bell v. State, 287 So.2d 717, (Fla.App.2d 1974); Williams v. State, 264 So.2d 106 (Fla.App. 4th 1972). Any inquiry into a party’s failure to comply with Rule 3.200 FRCrP, should at least cover such questions whether the violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly what effect, if any, it had upon the ability of the other party to properly prepare for trial, i.e. prejudice or surprise. Barnes v. State, supra. A review of the totality of the circumstances of this case necessitates that the cause be reversed and remanded for a new trial. The issue is neither the trial court’s authority to impose sanctions nor waive non-compliance; but, rather, the necessity to first make an adequate inquiry into the circumstances surrounding noncompliance before discretion is exercised.

For the foregoing reasons the cause is reversed and remanded.

WALDEN, C. J., MAGER, J., and RUD-NICK, VAUGHN, J., Associate Judge, concur.


text:
    John L. ALLEN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-547.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Rehearing Denied April 15, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

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

Accordingly, the judgment of conviction and sentence are affirmed.

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


author: BY THE COURT.

text:
    STATE of Florida, DEPARTMENT OF REVENUE, and Gerald A. Lewis, as Comptroller of the State of Florida, Appellants (Defendants), v. HARDY, HARDY & ASSOCIATES, INC., a Florida Corporation, Appellee (Plaintiff).
    No. BB-24.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Edward E. Kuhnel, Gen. Counsel, William B. Corbett, Jr., Asst. Gen. Counsel, Robert L. Shevin, Atty. Gen., Tallahassee, for appellants.
    John C. Patterson, of Icard, Merrill, Cullis, Timm & Furen, Sarasota, Harold Lewis, for appellee.
   BY THE COURT.

Interlocutory appeal dismissed.

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


author: SMITH, Judge.

text:
    WINN-DIXIE STORES, INC., Appellant, v. VIRGINIA CONSTRUCTION CO., INC., et al., Appellees.
    No. W-435.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Andrew G. Pattillo, Jr., of Pattillo, Mac-Kay & McKeever, Ocala, for appellant.
    Edwin C. Cluster, of Ayres, Cluster, Curry, Meffert & McCall, Ocala, for appellee Virginia Construction Co.
   SMITH, Judge.

Winn-Dixie Stores, Inc. appeals from a summary judgment in favor of Virginia Construction Co., Inc., on Winn-Dixie’s third-party claim for indemnity in an action by a shopper who was injured by a fall in Winn-Dixie’s market in the course of renovations by appellee Virginia. The shopper was crossing a plywood cover which Virginia had placed over a temporary excavation in the floor when the braces beneath the cover collapsed. The trial court held that there was no genuine issue as to any material fact and that, as a matter of law, Winn-Dixie was not passively negligent but actively negligent in failing to protect its patrons from or warn them of the danger of walking across the plywood.

We conceive that the trial court record at the time of the summary judgment hearing failed to demonstrate as a matter of law that appellant Winn-Dixie created the negligent condition which resulted in the shopper’s injury, had actual knowledge of its creation by Virginia or otherwise was actively negligent as in Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.App. 1st, 1963), modified and affirmed, Winn-Dixie Stores, Inc. v. Pepsi-Cola Bottling Co., 160 So.2d 102 (Fla.1964). The dangerous condition resulting in the shopper's injury was not simply that a wooden cover had been built to permit pedestrian passage through the store but rather that it had been built by Virginia in such a way that the underpnnings buckled under the weight of Virginia’s wheelbarrows and Winn-Dixie’s shopping traffic. There is no evidence in this record sufficient to support summary disposition that Winn-Dixie’s manager had actual knowledge, as in Fellows, of the dangerous condition. Winn-Dixie’s knowledge that the excavation and cover existed and its observation of the surface do not preclude a jury issue.

REVERSED.

RAWLS, Acting C. J., and HARDING, MAJOR B., Associate Judge, concur.


text:
    Francis A. DILIBERTO, Petitioner, v. DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, STATE BOARD OF PHARMACY of Florida, Respondent.
    No. Z-138.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Robert L. Saylor, North Palm Beach, for petitioner.
    Michael I. Schwartz, Miami, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

BOYER, C. J., SMITH, J., and COX, JOHN S., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Anita CLANCY, Appellee.
    No. AA-490.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.
    . Philip D. Beall of Beall, Lindsay & Lindsay, Henry R. Barksdale of Barksdale & Crongeyer, P. A., and Richard E. Scher-ling, Jr., Pensacola, for appellee.
   PER CURIAM.

This interlocutory appeal, having been found to be without sufficient merit to justify reversal of the trial court’s order, is

DISMISSED. Rule 4.2c, F.A.R.

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


author: McCORD, Judge.

text:
    Robert Lee LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. Y-378.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, • Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of both counts of a two count indictment, the first count charging forgery in violation of § 831.01, Florida Statutes, and the second count charging uttering a forged instrument in violation of § 831.02, Florida Statutes. The evidence showed that appellant falsely entered the name of one A. B. Hill, Jr., on a Mastercharge credit card ticket and uttered same at Busch’s Jewelry Store in Panama City, Florida.

Appellant first contends that the court erred in not instructing the jury on attempts to commit the crimes charged. Such was not error. Appellant did not request instructions on attempt nor did he object to the instructions given by the trial court. See Mitchell v. State, Fla.App.(1st), 321 So.2d 108 (1975). In addition we held in King v. State, Fla.App.(1st), 317 So.2d 852 (1975), that there is no offense nor crime under Florida law of attempt to utter a forged instrument.

Appellant next contends that the court erred in sentencing him under the forgery and uttering statutes rather than under § 817.61, Florida Statutes (the state credit card crime act) which under the facts of this case would carry a lesser penalty. Our sister courts have divided on this question. The Fourth District Court of Appeal has held that where the conduct of a defendant violates two statutes, he may be sentenced only under the statute which carries the lesser penalty. Pastoria v. State, Fla.App.(4th), 312 So.2d 808 (1975); Strada v. State, Fla.App.(4th), 267 So.2d 702 (1972); and Lore v. State, Fla.App.(4th), 267 So.2d 699 (1972). The Second District Court of Appeal in McConnell v. State, Fla.App.(2d), 298 So.2d 550 (1974) disagreed with the Fourth District Court of Appeal and held that since the state has the right to prosecute under either statute, the sentence may be imposed for a term prescribed by the statute under which' the prosecution is maintained. See also State v. McCurdy, Fla.App.(2d), 257 So.2d 92 (1972). The Third District Court of Appeal in Fayerweather v. State, Fla.App.(3d), 303 So.2d 34 (1974), followed the rulings of the Second District in McConnell and McCurdy. We likewise adopt this view.

Appellant also contends that the two crimes of forgery and uttering a forged instrument were facets of the same transaction and the court therefore erred in sentencing appellant on each count. (He was given concurrent sentences.) We find no error. Forgery and uttering a forged instrument are two separate crimes committed in violation of two separate criminal statutes and requiring proof of separate and distinct elements as to each. There was no violation of the single transaction rule.

Affirmed.

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


text:
    DIVERSACON INDUSTRIES, INC., a Florida Corporation, Appellant, v. Andy S. CRABB, Appellee.
    No. Z-424.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
    Andrew G. Pattillo, Jr., Ocala, for appel-lee.
   PER CURIAM.

The Court, having considered the record and briefs filed in accordance with the applicable rule and having heard oral arguments of the attorneys for the parties, finds that appellant has failed to demonstrate that the trial court erred in the manner alleged. Therefore, pursuant to Rule 4.2, subd. c., FAR, this Interlocutory Appeal is

DISMISSED.

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


text:
    Jerry Wayne GAY, Appellant, v. STATE of Florida, Appellee.
    No. Z-52.
    District Court of Appeal of Florida, First District.
    April 5, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See Heilmann v. State, Fla. App.(2d), 310 So.2d 376 (1975).

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


text:
    William Terry JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-393.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The only contention of appellant on this appeal is that the court committed fundamental error in admitting in evidence a waiver of rights form signed by appellant. The waiver was objected to at the time by appellant on the ground that it had not been produced in response to appellant’s demand for discovery and also on the ground that it was not relevant. The waiver was not introduced in support of any statement or confession of appellant, as no evidence of a statement or confession was offered. It was not relevant, and it was error to admit it but not fundamental error. In view of the overwhelming evidence of appellant’s guilt, we are unable to find from the record that this irrelevant evidence contributed to the conviction of appellant. Its admission was harmless error.

Affirmed.

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


text:
    LIBERTY MUTUAL INS. CO. et al., Appellants, v. Ann Marie ATKINSON, Appellee.
    No. Z-93.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Raymond A. Haas, of Gosney, Haas, Cameron & Parsons, Daytona Beach, for appellants.
    Terrill J. LaRue, of Stern, Bernardini & LaRue, Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. Marine Exploration Co., Inc. v. McCoy, 308 So.2d 43 (Fla.App.3d, 1975).

RAWLS, Acting C. J., SMITH, J., and SWIGERT, WILLIAM T., Sr., Associate Judge, concur.


text:
    SOUND CITY, INC., and Saul Silber, d/b/a Sound City, Appellants, v. KENWOOD ELECTRONICS, INC., Appellee.
    No. Z-213.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    As Corrected April 20, 1976.
    Lynn M. LoPucki, Gainesville, for appellant.
    C. Valentine Bates of Jones, Bates & DeCarlis, Gainesville, for appellee.
   McCORD, Judge.

This is an interlocutory appeal from an order denying appellants’ motion to dismiss and appellant Saul Silber’s motion to abate. The motion to abate is grounded upon Saul Silber’s contention that he was not validly served with process and that he had not voluntarily appeared as to the merits and thus has not waived the necessity of process. The motion to dismiss bears the case style showing both the corporate and the individual appellants. It is signed by Lynn M. LoPucki as “attorney for defendant.” Nowhere in the motion does it specify the particular defendant on whose behalf it was filed. Lynn M. Lo-Pucki represents both defendants — the corporation and the individual. Other pleadings in the file indicate a lack of clarity as to whether they are filed on behalf of one or the other or both defendants. We construe the motion to dismiss as having been filed on behalf of both defendants (appellants).

The ground for dismissal stated in the motion is that appellee (the plaintiff) failed “to post a bond with surety to be approved by the Clerk of $100, conditioned to pay all costs which may be adjudged against Plaintiff in this action.” The requirement for bond is stated in § 57.011, Florida Statutes, as follows:

“Costs; security by nonresidents. — When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or his effects from the state, he shall file a bond with surety to be approved by the clerk of one hundred dollars, conditioned to pay all costs which may be adjudged against him in said action in the court in which the action is brought. On failure to file such bond within thirty days after such commencement or such removal, the defendant may, after twenty days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.”

The record shows that the notice required by the foregoing statute was given by appellant to appellee and there is no indication in the record that a bond was filed prior to or during the period between the notice and the hearing on the motion. Although the trial court found the file to be “completely devoid of anything to indicate that plaintiff is or is not a nonresident corporation”, the accounts attached to appellee’s amended statement of claim show its address to be Woodside, New York. In addition, a sworn proof of claim of appellee shows it to be incorporated under the laws of California.

Appellee argues that the foregoing statute only applies to persons and not to corporations. We find no merit to that argument. The statute by its terms applies to nonresident plaintiffs. Appellee further argues that if the statute is applied to nonresident corporations, such would constitute a burden on interstate commerce. We do not consider this cost bond requirement placed upon a nonresident who uses the courts of this state for collection of a claim to constitute such a burden. It was error for the trial court to deny appellants’ motion to dismiss.

In view of our ruling on the motion to dismiss, the issue raised by appellant as to the motion to abate is moot.

Reversed.

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


author: OWEN, Judge.

text:
    MARINA DEL AMERICANA, INC., and Aetna Insurance Company, Appellants, v. Dawn Susan MILLER, etc., et al., Appellees.
    No. 75-312.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 5, 1976.

      Nancy Little Hoffmann, of Druck, Grimmett, Norman & Weaver, Fort Lau-derdale, for appellants.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees-Leo Goodwin, Jr. and Employers Commercial Union.
   OWEN, Judge.

Appellants, Marina Del Americana, Inc., and its insurer, Aetna Insurance Company, appeal from an adverse final judgment on their cross-claim for indemnification against appellees, Leo Goodwin, Jr., and his insurer, Employers Commercial Union Insurance Company.

All of the above-named parties were originally defendants in a wrongful death action which resulted in a $200,000 judgment against, them. The wrongful death was caused by the negligence of Leo Goodwin, Jr. while operating a boat owned by his employer, Marina Del Americana, Inc., in the course and scope of his employment. At the pleading stage, the employer, Marina Del Americana, Inc., and its insurer, Aetna Insurance Company, had cross-claimed for indemnification against the employee, Leo Goodwin, Jr., and his homeowner’s insurer, Employers Commercial Union Insurance Company. It is the trial of this cross-claim, tried separately from the main action, which resulted in the judgment here appealed.

The sole issue before this court is whether Aetna’s policy, issued to Marina as the named insured and covering the accident, also insured Goodwin. If Goodwin was an insured under that policy, Aetna is barred from seeking indemnification from him. Ray v. Earl, 277 So.2d 73 (2nd D.C.A. Fla.1973); Smith v. Ryan, 142 So.2d 139 (2nd D.C.A. Fla.1962). The trial court by denying the claim for indemnification apparently determined that Goodwin was insured by Aetna. We disagree.

Marina purchased two policies from Aet-na. The first, designated “Special Multi-Peril Policy,” did not cover, but, in fact, specifically excluded, the type of liability involved in the instant suit. Under the express terms of that policy (a section defining “Persons Insured”), there is no question but that Leo Goodwin, Jr. was an “insured.” Marina’s second Aetna policy, designated Scheduled Property Floater Policy,” did cover the accident in question; however, that policy, unlike the first, contained no clause specifically defining “Persons Insured,” nor did it contain any clause broadening its coverage to include persons other than the named insured, stated therein to be “Marina Del Americana, Inc.” Appellees urge that these two policies evidence only one agreement and that therefore they must be construed in pari materia, with the consequence that the first policy’s broader definition of “the insured” (which included Goodwin) be held applicable to the second. They further argue that, at the least, an ambiguity exists as to the meaning of “the insured” under the second policy, and that such ambiguity must be construed against the insurer, New Amsterdam Casualty Company v. Knowles, 95 So.2d 413 (Fla. 1957); Home Insurance Company v. Southport Terminals, Inc., 240 So.2d 525 (2nd D.C.A. Fla. 1970).

We find no basis for holding that these two policies should be construed together. To the contrary, every indication is that each policy represents a separate and distinct agreement and must be construed in and of itself. The first and perhaps most important fact that compels us to this conclusion is that neither policy makes any reference whatsoever to the other. Moreover, the policies were entered into at different times, each bears its own separate policy number without cross-reference on either policy to the number of the other, and, each policy covers different risks. Nor do we find any ambiguity in the second (“Scheduled Property Floater”) policy concerning the meaning of the term “the insured.” That policy clearly reflects that “the insured” is “the above-named insured,” i. e., Marina Del Americana, Inc.

The trial court therefore erred in finding that Goodwin was an insured under the relevant Aetna policy and that Aetna was thereby precluded from bringing this indemnity action.

The trial court s judgment is reversed and the cause remanded for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

DOWNEY, J., and DRIVER, B. J., Associate Judge, concur.


text:
    Edward George CHUZE, Appellant, v. STATE of Florida, Appellee.
    No. 75-351.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 5, 1976.

      Glenn R. Roderman, of Varón, Stahl & Kay, P. A., Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant pleaded nolo contendere to the charge of possession of marijuana, reserving his right to take this appeal from the denial of his motion to suppress evidence seized as the result of a warrantless inventory search of his automobile.

Appellant was stopped by one Officer Jessel of the Broward County Sheriff’s Department for a “routine check” because, as that officer explained, appellant was driving in a high-crime area very late at night. In the course of conducting this routine check, Officer Jessel discovered that appellant had been living and working in Florida for three months, but was still using his Pennsylvania driver’s license and license tag, in violation of Fla.Stat. §§ 320.38 and 322.031 (1973), and further, that appellant’s Pennsylvania inspection sticker had expired. The officer advised appellant that on account of these violations he would be taken to the police station and that his car would have to be towed because it would not be safe on the street. Appellant thereupon requested that a tow truck from his automobile club, Triple A, be called so that he could save towing charges. Officer Jessel acceded to this request and, accordingly, a call was made to the Triple A.

The testimony as to the time sequence of the subsequent events is conflicting. However, it appears that anywhere from five to fifty minutes after the initial stop, before the Triple A tow truck could arrive, two more officers arrived at the scene to offer their assistance. After conferring with Officer Jessel, and without any further word being said to appellant, these officers proceeded to conduct what they and appel-lee maintain to have been an inventory search of appellant’s vehicle, preparatory to police towing and impoundment. This search yielded the evidence here sought to be suppressed, marijuana in excess of five grams. Appellant was then placed under arrest for possession of marijuana.

The evidence is also conflicting as to whether the Triple A tow truck ever arrived. Appellant testified that it did arrive shortly after the conclusion of the search of his vehicle, but that it was sent away by the officers who then waited for the police wrecker to come to tow the vehicle. Officer Jessel, however, testified that the Triple A truck never showed up.

We have only recently had occasion to review the law regarding warrant-less inventory searches of automobile’s, in State v. Jenkins, 319 So.2d 91 (Fla.App. 4th 1975). We there made clear that an inventory search is a search within the contemplation of the Fourth Amendment and that the reasonableness or unreasonableness of such a search depends upon the particular facts and circumstances of each case. We also made the following observations which are of particular relevance to the case at bar:

“Absent . . . circumstances of a search incident to a lawful arrest or a search based upon probable cause and absent the impounding of the vehicle as evidence or pursuant to a forfeiture, the impounding and towing of an automobile and its concomitant inventory search is of questionable validity where the location of the automobile does not create a traffic hazard or nuisance and the owner or operator chooses not to have his car impounded. The individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge of the car or having it impounded. An individual who is taken into custody ought not to have his vehicle impounded, inventoried and towed away under such circumstances where alternative steps can be taken to secure the vehicle and the individual is willing to accept the responsibility for the safekeeping of the contents of such vehicle.” (e. s.) (319 So.2d at 94-5).

We hold that under the facts and circumstances of this case the “inventory” search here conducted was unreasonable and therefore violative of appellant’s rights under the Fourth Amendment. Appellant, on his own initiative, suggested an entirely reasonable alternative to having his vehicle towed and impounded by the police, thereby manifesting his choice not to submit his possessions to police custody, see, Weed v. Wainwright, 325 So.2d 44 (Fla.App. 4th 1975), and we think appellant wa‘s entitled to have this choice honored if at all practicable. See, State v. Jenkins, supra. Apparently conceding the reasonableness of appellant’s proposal, the police officer at the scene acquiesced in it, as he should have; however, at some subsequent point in time he reneged on his implied agreement. We wish to make very clear that it is the way in which the officer reneged, rather than the fact that he did, which motivates our decision in this case. That is, we do not premise our decision upon any conclusion drawn from the period of time which the officers spent waiting for the Triple A tow truck to arrive, or the conflicting testimony as to whether or not it arrived at all, but rather, upon the fact that, after deciding that they could or would wait no longer for the Triple A tow truck, the officers simply proceeded with the search without further consulting appellant as to other alternatives. The totality of these circumstances indicates to us that this “inventory” search was not conducted in good faith and was nothing more than a pretext for an exploratory search of appellant’s vehicle.

The order denying appellant’s motion to suppress is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

CROSS and DOWNEY, JJ„ concur.

      . AVhile this argument was not raised by ap-pellee here, we can easily postulate a situation in which a motorist’s request that a police officer wait any appreciable length of time for the arrival of a private tow truck would be unreasonable. This may or may not have been the case here, but we do not need to make this decision. We do note, however, that it was Officer Jessel who testified that the two backup officers arrived only five minutes after the stop, whereas it was appellant who approximated the time as closer to fifty minutes. The testimony was uncontradicted that the search was conducted almost immediately after the arrival of these two officers. If we were to accept the State’s version of the events, then, the search would certainly have been unreasonable on this basis alone.


text:
    Joseph E. FOLSOM and his wife et al., Appellants, v. Lamar BEAUCHAMP et al., Appellees.
    No. BB-277.
    District Court of Appeal of Florida, First District.
    April 15, 1976.
    Daniel J. Wiser of LaCapra, Miller & Wiser, Tallahassee, for appellants.
    Ernest A. Sellers, Live Oak, David E. Bembry of Davis, Browning & Harder, Madison, for appellees.
   PER CURIAM.

Having considered the record, briefs, and oral arguments of counsel, and finding that the interlocutory appeal is without substantial merit, it is dismissed pursuant to Rule 4.2, subd. c, Florida Appellate Rules.

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


author: PER CURIAM. MAGER, Judge

text:
    STATE of Florida, Appellant, v. Henry JIMERSON, Appellee.
    No. 75-1692.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 5, 1976.
    Barry E. Krischer, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting).

With all due respect for the trial court and this court, I must dissent.

Oftentimes the conscientious efforts of law enforcement officers in furtherance of their peacekeeping functions conflict with the rights guaranteed by the Florida and U. S. Constitutions. In such cases the conflict must be resolved in favor of recognition of the constitutional guarantees. However, in the instant situation I am unable to find any such conflict. Consequently, it is my opinion that the trial court was in error in suppressing certain tangible evidence and defendant’s confession on the basis of having been obtained as a result of an illegal arrest.

The facts in this record adequately support a valid citizen’s arrest within the limitations of Collins v. State, 143 So.2d 700 (Fla.App.2d 1962); see also Marden v. State, 203 So.2d 638 (Fla.App.3d 1967). Here, a Riviera Beach policeman was investigating a break-in of a van truck from which an electric drill and screw-gun had been removed. The van was parked across the street from the home of the defendant with whose background the policeman was familiar. The victim advised the policeman that a man wearing a red tee-shirt had approached his van prior to the crime and had tried to sell him a rod and reel. The policeman proceeded to the nearest pawnshop located in the City of Lake Park and advised the proprietor to be on the lookout for a drill and a screw-gun. While at the pawnshop defendant, wearing a red shirt, and one Cowart who was carrying a paper bag and a rod and reel, walked in and began a conversation with the proprietor. During this encounter the proprietor looked into the paper bag and was overheard to say, “No, I can’t take these drills”. At that point the policeman showed Cowart his badge, told him and the defendant to wait and proceeded to look into the paper bag discovering the drill and screw-gun. Thereafter, he called the owner of the van to identify the items. Defendant and Cowart were taken into custody, booked at the Riviera Beach police station, interrogated and subsequently the defendant confessed to breaking into the van and taking the tools.

Both Collins v. State and Marden v. State, supra, stand for the proposition that while police officers have no power or authority as police officers beyond the limits of the territorial jurisdiction of the municipality these cases clearly recognize, as does the common law, “that police officers outside the jurisdictional territory may make an arrest as private persons where a private person could lawfully make an arrest”. As particularly pointed out in Collins v. State, supra, at page 703:

“ . . .A private citizen does have the common law right to arrest a person who commits a felony in his presence, or to arrest a person where a felony has been committed, and where the arresting citizen has proháble cause to believe, and does believe, the person arrested to be guilty. Even though there was time to obtain a warrant, a private citizen may make such an arrest and justify his failure to obtain a warrant by proving the person arrested was actually guilty of the felony. ...” (Emphasis added.)

Clearly, under the particular facts of this case, as distinguished from Collins v. State, the action of the police officer in making the arrest in question was justified as one made in his capacity as a private citizen. Marden v. State, supra. With all due respect, it is inconceivable to me under these circumstances that a police officer, because he was a police officer, lacked the power of an ordinary citizen; and that the police officer either should have refrained from taking any action or resorted to calling the Lake Park police during all of which time the defendants would assumedly have calmly stood waiting. United States v. Montos, 421 F.2d 215 (5 Cir. 1970), cert. den. 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532; United States v. Chapman, 420 F.2d 925 (5 Cir. 1969).

Apart from the foregoing is the additional proposition that defendant lacked the standing to object to property seized from the paper bag held by Cowart; absent such lawful standing he could not object to the search or suppress the evidence discovered thereby. Moore v. Wainwright, 248 So.2d 262 (Fla.App. 1st 1971); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

The totality of the foregoing circumstances compellingly support a reversal and I therefore must respectfully dissent from an affirmance.


author: NESBITT, JOSEPH, Associate Judge.

text:
    MANUFACTURERS’ LEASING, LTD., a Florida Limited Partnership, Appellant, v. FLORIDA DEVELOPMENT & ATTRACTIONS, INC., a Florida Corporation, and Walton McJordan, Appellees.
    No. 74-1618.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Rehearing Denied May 5, 1976.
    John L. Graham, Jr. and Harland Tuck, of Giles, Hedrick & Robinson, P. A., Orlando, for appellant.
    F. D. McKnight, Orlando, and Morgan S. Bragg, West Palm Beach, Yergey, Yer-gey & McKnight, Orlando, and Howell, Kirby, Montgomery, D’Aiuto & Dean, P. A., West Palm Beach, for appellees.
   NESBITT, JOSEPH, Associate Judge.

Appellant, Manufacturers’ Leasing, Ltd., as plaintiff (lessor), sued Florida Development & Attractions, Inc., defendant (lessee), for damages under a lease agreement and joined Walton McJordan, individually, as guarantor of the lease agreement. When the action came on for trial, without a jury, Florida Development did not appear or defend and consequently a money judgment was entered against it. That judgment is not the subject of this appeal and Florida Development is not before this Court. The cause then proceeded solely against the guarantor, Mcjordan, who was President and a principal shareholder of Florida Development. At the close of all the evidence, the court entered an involuntary dismissal in favor'of Mcjordan pursuant to RCP 1.420(b), consequent upon which the final judgment appealed from was entered. Dismissal of the plaintiff’s action was prompted because the trial court found that Mcjordan was not personally bound by the guaranty running to the lessor. That ruling is challeged here by the appellant’s assignments of error.

The first question is whether Mcjordan was personally bound by the guaranty contract which he executed. The contract in question was prepared by the lessor upon a printed form and submitted to Mcjordan for signature. The executed contract as signed was as follows:

"INDIVIDUALS
Walton Mcjordan, President Signature: /s/ Walton Mcjordan Pres Resident Address: 601 N. Ferncreek Ave.
City & State : Orlando, Fla._
Telephone: 241-1032_
Signature:_
Resident Address:_
City & State:_
Telephone:_
CORPORATION
Legal Name:_
By:_ Title"

At trial, Mcjordan was permitted to testify over the lessor’s objection that he did not read the document; that he considered himself as signing the guaranty in his representative capacity of the President of the lessee corporation and further it was not the policy of other principals of the lessee corporation to ever execute guaranty contracts individually. The lessor correctly contended below, as it does here, that the mere addition of descriptio personae to a signature does not exculpate the signatory party from responsibility. The rule is simply stated in Williston on Contracts, Third Edition, Vol. II, § 299:

“ * * * [I]t is generally held that the mere addition of the word ‘agent’ or such official designations as — ‘president,’ ‘treasurer,’ ‘secretary,’ ‘trustee’ and the like, in the absence of words in the body of the instrument showing a different intent, is to be treated as matter of description, and the agent or official is personally the contracting party.”

This is the common law rule unless modified by statute. Thus, in Falsten Realty Co. v. Kirksey, 1931, 103 Fla. 225, 137 So. 267, the Supreme Court stated that the addition of descriptio personae to an individual’s name rendered him prima facie liable unless from a reading of the whole instrument an intent appears to bind only the principal. In this case, the guaranty contract sued upon specifically negated Mc-Jordan’s execution of the guaranty contract in a representative capacity because it contained the following provision:

“The obligations of the undersigned hereunder are joint and several, and are independent of the obligations of the lessee.” (emphasis supplied)

A party has a duty to learn and know the contents of a proposed contract before he signs and delivers it, and in the absence of exceptions not pertinent here is presumed to know and understand its contents, terms and conditions. 7 Fla.Jur., Contracts, § 17. Consequently, it was a classical violation of the parol evidence rule to admit testimony to enlarge or deviate from the clear and unambiguous terms of the instrument sued upon in order to arrive at the true intentions of the parties. Bryant v. Food Mach. & Chem. Corp. Niagara Chem. Div., Fla. App.3d 1961, 130 So.2d 132. Bryant, supra, enumerates the reason for the rule:

“Courts cannot make contracts for parties and where agreements are unambiguous, they must be enforced in accordance with their terms.”

The court having erred in admitting into evidence over appellant’s objection Mc-Jordan’s testimony as to his subjective intent in executing the guaranty agreement, the judgment is reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

OWEN and DOWNEY, JJ., concur.

      . The Uniform Commercial Code, P.S. 673.3-403(2) makes parol evidence admissible between the immediate parties to establish that an agent signed in his representative capacity. We expressly do not reach the applicability of that statute here because the instruments sued upon are not “negotiable” in character. See, F.S. 673.3-102(1) (e).


text:
    Johnnie Mae CRAPPS, Petitioner, v. Paul MURCHEK, Director, Parole and Probation Commission, State of Florida, Respondent.
    No. 75-1180.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 5, 1976.
    Richard L. Jorandby, Public Defender, and David B. Linn, Sp. Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Paul G. Saunders, III, Legal Intern, David H. Bludworth, State’s Atty., West Palm Beach, for respondent.
   OWEN, Judge.

Through no fault of the trial judge, a failure in communications between the court and the jury in the matter of the jury instructions has led to a result which we perceive to be a substantial miscarriage of justice and which we here rectify by granting petitioner a new trial.

Petitioner, convicted of manslaughter, has been granted delayed appellate review by writ of habeas corpus. She was charged with second-degree murder in the stabbing death of one Willie Gordon. There was substantial (if not overwhelming) evidence to sustain petitioner’s defense of justifiable homicide, i. e., self-defense. The jury was instructed on the applicable degrees of homicide and all lesser included offenses including attempts, and given appropriate verdict forms as to each offense, together with a verdict form for not guilty. After the jury had deliberated for some time, it asked for and received reinstruction on the elements of the various offenses. After further deliberation the jury sent word by the bailiff that it had reached a decision but did not know “how to title it.” Thereupon, the following proceedings transpired:

“THE COURT: All I can give you is the information I have. That is that the jury knocked on the door and advised the Bailiff they have reached a decision but don’t know how to title it. I’ll call the jury in and ask them if they have got a question for the Court. That’s all I can do.
Bring the jury in, please.
(Jury returned to the jury box.)
THE COURT: Ladies and gentlemen of the jury, do you have a question for the Court ?
THE FOREMAN: Yes, we have all reached a unanimous decision but we don’t know what category it goes under. You named some off that we haven’t got some slips for. I have it written out, if it would help.
THE COURT: Hand the verdict to me, please. Ladies and gentlemen of the jury, there is a form of verdict for every offense that I read to you including a not guilty form in here.
THE FOREMAN: There is one or two of us that do not agree that it comes under one category. We all reached a. unanimous verdict but it is a question of what category that goes under. There is one or two that don’t agree it goes under the category the rest of us do.
THE COURT: Then I can only advise you that you have not reached a unanimous decision. By reaching a unanimous decision, it means all six jurors have agreed on one of those verdict forms.
THE FOREMAN: May we have a breakdown of one read to us again? Manslaughter, would you read that one for us?
THE COURT: To explain to you the offense of manslaughter, I must explain to you justifiable homicide and excusable homicide. The killing of a human being by any person is justifiable homicide and lawful when committed in resisting an attempt to commit murder.
TPIE FOREMAN: Excuse me, Judge. You have already answered our question.
THE COURT: Does that answer your question ?
THE FOREMAN: Can we have the slips back?
THE COURT: Return to the jury room to continue your deliberations. Mr. Bailiff, hand the jurors the forms of verdicts.
(Jury returned to the jury room.)
THE COURT: I will ask counsel if there is any objection to the answer the Court gave to the jury’s inquiry.
MR. BROWN [prosecutor]: Do I have any objection? No.
MR. BRATTEN [defense counsel]: Your Honor, I am utterly confused. I don’t feel I have enough information to make an objection or approve of what happened. Obviously, you did what the jury wanted. I am beyond comprehension at this point.
MR. BROWN: I didn’t say I quite understood it. I just said I had no objection.” (emphasis added)

Here we see one of the ironies of the law. The trial court, being aware of the teaching of Hedges v. State, 172 So.2d 824 (Fla.1965), realized that in order to properly reinstruct the jury on manslaughter, it would be necessary to also reinstruct on justifiable and excusable homicide. However, as events later proved, this proper effort on the part of the trial judge, untimely aborted as it was by the jury foreman’s interruption, is that which led to the failure of communication and the miscarriage of justice.

The jury returned to the jury box a short time later and announced a verdict of manslaughter. The following day a deputy clerk reported to the trial court that a juror had advised that a mistake had been made in the verdict. The court advised counsel. Pursuant to the Code of Professional Responsibility, defense counsel gave the appropriate notice and took a deposition from the juror. She testified that the unanimous verdict agreed upon in the jury room was “guilty of justifiable homicide,” but that since none of the verdict forms mentioned “justifiable homicide,” the jury made the inquiry of the court heretofore described. This juror also further testified as follows:

“Q. Okay. And it was your understanding that the justifiable category and the manslaughter category was the same ?
A. One and the same, that’s what I thought. That I know that manslaughter, the Judge listed two or three items under manslaughter. And when he said justifiable homicide, that should have been included under manslaughter, under that category.
Q. When you asked for the definition of manslaughter, the first thing he said was to give you the definition of manslaughter I also have to give you the definition of excusable and justifiable homicide. That was when you came out, back out and asked—
A. Yes.
Q. And he started to read the definition of justifiable homicide.
A. Whatever it is.
Q. And half way through your jury foreman said we have heard enough.
A. Yes.
Q. It was your impression—
A. I feel we should have listened to all of it.
Q. Okay. Well, it was your impression then from the fact that he read justifiable in connection with manslaughter that the two were one and the same; is that correct ?
A. That’s right.”
(Deposition of Demko, pages 16-17).

The trial court, in considering defendant’s motion for new trial conscientiously considered the sworn testimony of this juror, but concluded that the court was bound, under the authority of State v. Ramirez, 73 So.2d 218 (Fla. 1954) and Marks v. State Road Department, 69 So.2d 771 (Fla. 1954) to view such testimony as an impermissible attempt to impeach the jury verdict by matters which essentially inhere in the verdict itself.

We think that the unique situation presented by this case is one which presents an exception to the rule announced in the Ramirez and Marks cases. There is much more here than a single juror attempting a postverdict impeachment of the verdict. Her testimony is fully corroborated by the preverdict proceedings showing the confusion of the jury. The warning flags went up when the jury foreman reported that the jury had reached a unanimous verdict but that it did not “fit” any of the verdict forms. Assuming that the unanimous verdict to which he referred was “guilty of justifiable homicide,” the proper verdict would have been “not guilty,” a fact the jurors apparently had failed to comprehend.

Although the trial judge asked that the verdict form be handed to him [to examine], it is evident that he examined only the forms of verdict originally given to the jury, and did not examine the jury's written verdict which the foreman offered, for had he done so he would certainly have been duty bound to inform them of the significance of their decision.

While the jury was unanimous in its finding of justifiable homicide, its lack of unanimity dealt only with the proper verdict form into which justifiable homicide would “fit.” We think it obvious that some jurors thought it “fit” manslaughter and some thought it “fit” not guilty. So it was, that when the trial judge stated that in order for him to explain the offense of manslaughter he must also explain justifiable homicide, the jury precipitously jumped to the erroneous conclusion that a finding of justifiable homicide was synonymous with a verdict of manslaughter.

Despite the best efforts of the bench and bar of this state, jury instructions have been difficult to formulate in language which is both readily understandable by the layman and technically sufficient to encompass all of the requirements of law. At the present time an extensive study is being conducted, headed by Circuit Judge David Strawn, to find methods of better communication between the court and jurors on the matter of jury instructions. Hopefully such study will in time be sufficiently productive so as to eliminate the type of confusion and obvious miscarriage of justice as resulted in this case.

The interests of justice will be best served in this case by reversing the judgment and remanding this cause for a new trial. It is so ordered.

REVERSED and REMANDED.

CROSS and MAGER, JJ., concur.

      . The trial court’s failure to complete the instruction, though at the request of the jury, was nonetheless error, Jackson v. State, 317 So.2d 454 (4th DCA Fla.1975), but not the basis for reversal in this case in view of the lack of objection to such omission.


text:
    Olen Wayne MEREDITH, Appellant (Respondent), v. Sharon Tuveson MEREDITH, Appellee (Petitioner).
    No. BB-26.
    District Court of Appeal of Florida, First District.
    April 15, 1976.
    Brian T. Hayes, Monticello, Frank D. Upchurch, Jr., St. Augustine, for appellant.
    C. David Fonvielle, Tallahassee, for ap-pellee.
   BY THE COURT.

Interlocutory appeal granted on authority of Carroll v. Carroll, 322 So.2d 53 (Fla. App.1st, 1975). The trial court’s order of 30 December 1975 denying respondent’s renewed motion to dismiss for improper venue ■ is set aside. This case is remanded with directions to transfer this case to St. Johns County, Florida.

McCORD, Acting C. J., and MILLS and SMITH, JJ-, concur.


author: MAGER, Judge.

text:
    Betty MAXWELL et al., Appellants, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 75-1285.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Rehearing Denied May 5, 1976.
    Richard H. Frank and Ronald G. Meyer of Law Offices of Frank & Meyer, Tampa, for appellants.

      Joseph A. Caldwell of Muller & Mintz, Miami, for appellee.
   MAGER, Judge.

This is an appeal from an order dismissing plaintiffs’ complaint, the trial court finding that it lacked jurisdiction over the subject matter. In particular, the trial court found that the activities alleged in the complaint were “labor matters” preempted by Chapter 447, Florida Statutes.

The complaint was filed by several persons in their individual and representative capacity seeking declaratory relief and money damages. Counts I through IV of the complaint alleged in essence that prior to the 1974-1975 school year the School Board of Broward County, defendant, established and maintained a program known as the Basic Incentive Award; and that in reliance upon such program plaintiffs undertook to complete the necessary steps to participate therein and were qualified to receive the benefits thereunder but that such program was unilaterally rescinded and canceled by the defendant. Plaintiffs sought damages to compensate them for the alleged losses incurred as a result of such cancellation.

The plaintiffs contend that the issues raised by the complaint are judicial controversies within the jurisdiction of the trial court and not “labor matters” within the framework of Part II, Chapter 447, Florida Statutes.

In 1974 the legislature enacted Chapter 74-100 (creating Part II, Chap. 447, F.S.) which among other things established a Public Employees Relations Commission (Section 447.205, F.S.; see also sections 447.201-447.607, F.S.) The subject legislation was a culmination of efforts to establish standards and guidelines governing collective bargaining by public employees in order to implement the rights guaranteed to public employees under sec. 6,. Art. I, Fla. Constitution. See Dade County Class. Teach. Ass’n, Inc. v. Legislature, 269 So.2d 684 (Fla.1972). The purposes and objectives of the legislative enactment are recited in section 447.201, F.S. as follows :

“447.201 Statement of policy. — It is declared that the public policy of the state, and the purpose of this part, is to provide statutory implementation of s. 6, Art. I of the State Constitution, to promote harmonious and cooperative relationships between government and its employees, both collectively and individually, and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. It is the intent of the legislature that nothing herein shall be construed either to encourage or discourage organization of public employees. These policies are best effectuated by:

(1) Granting to public employees the right of organization and representation;

(2) Requiring the state, local governments, and other political subdivisions to negotiate with bargaining agents duly certified to represent public employees;

(3) Creating a Public Employees Relations Commission to assist in resolving disputes between public employees and public employers; and

(4) Recognizing the constitutional prohibition against strikes by public employees and providing remedies for violations of such prohibition.” One of the primary duties and responsibilities of the Public Employees Relations Commission (PERC) is to investigate and resolve charges of unfair labor practices, as defined under sec. 447.501, F.S. (see Appendix A).

From an analysis of its purpose and objectives and from a review of its provisions it appears that the legislature intended Part II, Chapter 447 to provide an exclusive method for resolving labor disputes between public employers and public employees, with the Public Employees Relations Commission having preemptive jurisdiction over such matters. In this respect, there is a marked similarity between the functioning of PERC and the National Labor Relations Board; to some extent the provisions of Part II, Chapter 447, have been patterned after the provisions of the federal law creating the NLRB (see, for example, the similarity between sec. 447.-501 and 29 U.S.C.A. § 158 defining unfair labor practices). Therefore, reference to case law construing the federal act would be instructive in resolving the primary issue raised in this appeal, particularly whether jurisdiction over labor activities (and the circumstances under which such activities) would be preempted in favor of PERC.

In commenting on the preemption doctrine the Supreme Court of the United States observed:

“[Principles of pre-emption, in whatever field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official bodies which might have some authority over the subject matter.” Amalgamated Association, etc. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 1917, 29 L.Ed.2d 473 (1971).

The application of the principle of preemption was illustrated in Sheetmetal Workers’ Int. Ass’n v. Florida H. & P., Inc., 230 So.2d 154, 155 (Fla.1970), where our Florida Supreme Court stated that,

It is settled law that jurisdiction over labor activities is pre-empted in favor of the National Labor Relations Board, if the activities arguably are covered by the National Labor Relations Act. In such cases state courts may not exercise jurisdiction because the jurisdiction of the Board is paramount and exclusive. Scherer & Sons, Inc. v. International Ladies’ Garment Workers Union, Local 415, 142 So.2d 290 (Fla.1962); Garner v. Teamsters Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228; San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.” (Emphasis ours.)

We, therefore, conclude that principles of preemption are applicable to the functioning of PERC; jurisdiction over labor activities is preempted in favor of PERC if the activities are “arguably” covered by the provisions of Part II, Chapter 447, supra. It is important to point out however that in Sheetmetal Workers’ Int. Ass’n, supra, the Supreme Court held that Florida courts could only determine whether the complained of activities were “arguably” covered by the federal act and that they could not go further to initially determine whether a labor dispute existed. In determining whether complained of activities are arguably covered by the federal act, the United States Supreme Court stated in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 488, 99 L.Ed. 546,

“We realize that it is not easy for a state court to decide, merely on the basis of a complaint and answer, whether the subject matter is the concern exclusively of the federal Board and withdrawn from the State. . . . But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction. . . .”

In the instant situation there can be no doubt that PERC has exclusive jurisdiction over statutorily enumerated unfair labor practices. See sec. 447.501, F.S. The consideration for this court is whether the trial court could reasonably have found, on the record before it, that the activity complained of as set forth in Counts I through IV “arguably” constituted an unfair labor practice as defined by section 447.501, F.S. or the type of labor matter or dispute within the contemplation of Part II, Chapter 447.

Measured by the purposes and object of Part II, Chapter 447, and in particular by the statutory enumeration of “unfair labor practices”, Counts I through IV of plaintiffs’ complaint do not in our opinion reflect (labor) activities which are “arguably” embraced within the provisions of Part II, Chapter 447 and within the preempting jurisdiction of PERC. The cancellation of the incentive awards program for which plaintiffs alleged they have suffered damages is far more removed from an “arguably” covered (labor) activity than a breach of a collective bargaining agreement which federal case law has uniformly held not to constitute an unfair labor practice. Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); 6 ALR Fed. 589, Breach of Collective Bargaining Agreement as Unfair Labor Practice Under National Labor Relations Act, as amended (29 U.S.C. § 158). Not every activity or dispute between public employees and their public employer gives rise to the preemption jurisdiction of PERC; only those activities which from an examination of Part II, Chapter 447 are shown to be “arguably” covered by that act.

In the instant case the jurisdiction of the circuit court was not preempted by PERC insofar as Counts I through IV of the instant complaint were concerned. Therefore, the trial court erred in dismissing Counts I through IV of the complaint on the basis of lack of jurisdiction. The other points raised by the plaintiffs in this appeal are rendered moot in light of the foregoing determination. Suffice it to say by way of dicta, that had all of the activities (alleged in the complaint) been “arguably covered” by the provisions of Part II, Chapter 447, the fact that such activities were based upon events predating the enactment of Part II would not preclude application of the provisions of the act to such activities. Chapter 74 — 100 (creating Part II, Chap. 447), is remedial in nature. It operates in furtherance of a remedy by confirming rights already existing and, therefore, does not fall within the general prohibition against retrospective application of statutes. See 30 Fla.Jur., Statutes, § 152; City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); see also cases cited in 29 U.S.C. § 151, notes 24-26.

Accordingly, the order dismissing plaintiffs’ complaint is reversed and the cause remanded with directions to reinstate the complaint subject to such further action and proceedings as may be consistent herewith.

CROSS, J., concurs.

WALDEN, C. J., dissents without opinion.

APPENDIX A

447.601 Unfair labor practices.—

(1) Public employers or their agents or representatives are prohibited from:

(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

(b) Encouraging or discouraging membership in any employee organiza-

matters ‘“arguably” embraced within the jurisdiction of PERC. tion by discrimination in regard to hiring, tenure, or other conditions of employment.

(c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

(d) Discharging or discriminating against a public employee because he has filed charges or given testimony under this part.

(e) Dominating, interfering with, or assisting in the formation, existence, or administration of, any employee organization or contributing financial support to such an organization.

(f) Refusing to discuss grievances in good faith pursuant to the terms of the collective bargaining agreement with either the certified bargaining agent for the public employee or the employee involved.

(2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from:

(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part or interfering with, restraining, or coercing managerial employees by reason of their performance of job duties or other activities undertaken in the interests of the public employer.

(b) Causing or attempting to cause a public employer to discriminate against an employee because of the employee’s membership or nonmembership in an employee organization or attempting to cause the public employer to violate any of the provisions of this part.

(c) Refusing to bargain collectively or failing to bargain collectively in good faith with a public employer.

(d) Discriminating against an employee because he has signed or filed an affidavit, petition, or complaint or given any information or testimony in any proceedings provided for in this part.

(e) Participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike. Any violation of this paragraph shall subject the violator to the penalties provided in this part.

(f) Instigating or advocating support, in any positive manner, for an employee organization’s activities from high school or grade school students or [students in] institutions of higher learning.

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

      . The Broward CTA, one of the plaintiffs below, is not directly involved in this appeal. See note 2, infra.

      . Count Y of the complaint which was maintained by the Broward CTA and the dismissal of which is not challenged in this appeal alleges the failure on the part of the defendant to collectively bargain with respect to the cancellation of the incentive awards program and with respect to other working conditions.

      . See, for example, fn. 2, supra, referring to Count V of the complaint which alleges


text:
    John W. HARRIS, II, etc., et al., Plaintiffs, v. Clifford B. MILES, M.D., and Holy Cross Hospital, Defendants.
    No. 75-1576.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Rehearing Denied May 5, 1976.

      Robert Orseck of Podhurst, Orseck & Parks, Miami, and Simons & Schlesinger, Hollywood, for plaintiffs.
    Philip Michael Cullen, III, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for defendant-Holy Cross Hospital.
   DOWNEY, Judge.

Once again we have for consideration the applicability of § 95.11(6), F.S.1972, the new statute of limitations governing malpractice claims, to claims arising before the effective date of that statute.

The action involved herein arose on September 23, 1970, at a time when the applicable period of limitations under § 95.11(4) F.S.1969 was four years. In 1971 the legislature amended § 95.11(6) to provide that suits for medical malpractice were to be filed within two years from discovery of the cause of action. However, the amendment did not become effective until July 1, 1972. The complaint in this case was filed July 24, 1974, well within four years of the accrual of the cause of action but more than two years after the effective date of the amended period of limitation.

The trial court has certified the following question to this court:

“IS A PLAINTIFF WHO BROUGHT SUIT ON JULY 24TH, 1974 WHOSE CAUSE OF ACTION FOR MEDICAL MALPRACTICE AROSE ON OR ABOUT SEPTEMBER 23, 1970 NOW BARRED FROM PROSECUTING THAT CLAIM BY VIRTUE OF THAT CERTAIN AMENDMENT TO F.S.A. § 95.11(6) CHANGING THE PERIOD OF LIMITATIONS APPLICABLE TO SUCH ACTIONS TO TWO YEARS ?”

We have accepted jurisdiction and propose to answer the question because at the time the question was certified there was no precedent controlling the exact factual question involved in this case. Rule 4.6a, F.A.R.

Since the effective date of the amendment to § 95.11(6) limiting the time for commencing action to two years, the Florida District Courts of Appeal have rendered three relevant decisions.

In Maltempo v. Cuthbert, Fla.App. 1974, 288 So.2d 517, the Second District Court of Appeal answered in the negative a certified question similar to the one presented here. That court was persuaded not to apply the new period of limitation because, 1) where there is doubt as to the legislative intention to make the acts retroactive, the doubt will be construed in favor of the continuing viability of the cause of action, and 2) to hold the act retroactive in that case would have meant the cause of action expired on July 1, 1972, the effective date of the new act.

Next, this court decided DeLucai v. Mathews, Fla.App. 1974, 297 So.2d 854. The cause of action in that case arose December 24, 1970 and suit was filed January 4, 1973. Our decision was based upon the first point mentioned in the Maltempo case.

The most recent decision on this question is Foley v. Morris, Fla.App., 325 So.2d 37, 1976. There the cause of action arose April 14, 1971, and suit was filed September 17, 1974, well within the original four year statute of limitations but more than two years after the effective date of the amendment to § 95.11(6). On that factual situation that court held that the new two year statute barred the cause of action because the plaintiff had the benefit of the entire new period of limitations to file suit on the preexisting cause of action. Thus, the court reasoned, the application of the amended statute was not a retroactive application but rather a prospective one.

“Therefore, we conclude that where the plaintiff has had the benefit of the entire new period of limitations to file suit on a pre-existing cause of action, application of the new statute is prospective in that the statutory change relates only to procedures to occur in the future. No substantive right has been impaired.”

We have reviewed the entire question once again, including the authorities relied upon by the Second District in Foley and are persuaded that the conclusion the court reached in Foley v. Morris, supra, is correct. We thus align ourselves with that court in concluding that if a cause of action for malpractice accrued before July 1, 1972, § 95.11(6), bars the action unless it was commenced within two years from July 1, 1972.

This conclusion is consistent with our decision in DeLuca, since the new period of limitations had not expired when that action was filed, and since the present decision is not a retroactive application of § 95.11(6) F.S.1972. Foley v. Morris, supra.

Accordingly, the certified question is answered in the affirmative.

OWEN, J., and MORROW, RUSSELL 0., Associate Judge, concur.


author: GRIMES, Judge.

text:
    Harold MATHEWS and Vera Mathews, his wife, jointly and severally, Appellants, v. FLORIDA CROSSBREEDS, INC., a Florida Corporation, Appellee.
    No. 75-1229.
    District Court of Appeal of Florida, Second District.
    April 9, 1976.

      Christopher C. Ford, Ford, Cauthen & Robuck, Tavares, for appellants.
    Royce D. Pipkins, Rosenblum & Pipkins, Casselberry, for appellee.
   GRIMES, Judge.

This is an appeal from a judgment of reformation and specific performance. Appellants (Mathews) and appellee (Crossbreeds) entered into a written lease agreement whereby Mathews leased to Crossbreeds certain farmland in Lake County for a period of five years. Thereafter, Crossbreeds entered into possession of the premises and paid rent to Mathews for more than three years.

Included in the lease was a provision giving Crossbreeds the option to purchase which read as follows:

“22. Lessor grants to Lessee the option to purchase the leased property for the total price of $330,000.00, payable $50,000.00 down and $28,000.00 payable annually, together with interest payable annually at the rate of 6% per annum. Lessee may exercise this option at any time during the term of this lease. Upon exercise of the option, Lessor will furnish Lessee with an abstract of title showing marketable title in Lessor, and Lessor will convey title to Lessee by general warranty deed free of all encumbrances.”

On July 6, 1973, Crossbreeds’ attorney wrote Mathews advising that Crossbreeds had exercised its option to purchase the property. The letter advised that upon a showing of marketable title, Crossbreeds would tender the monies due pursuant to the lease and option and would proceed to closing. When Mathews declined to go forward with the sale, Crossbreeds filed this suit for reformation and specific performance.

Crossbreeds’ claim for reformation was necessitated by a problem in the legal description of the property set forth in the lease. The lease was prepared by an attorney for Crossbreeds using tax receipt descriptions supplied by Mathews to officers of Crossbreeds. The lease described four contiguous parcels of land in Township 18 South, Range 25 East, two of which were in Section 34 and two of which were in Section 27. One of the parcels in Section 34, which was referred to at the trial as Parcel 3, was described as follows:

“. . . beginning at the Northwest corner of the Northeast (4 of said Section, run South to the center line of canal, Northeasterly along canal to East line of West of Northeast J4 of Northeast j4> South to Southwest corner of Northeast J4 of Northeast (4 of Northeast 141 ■ •

When charted on a map, the legal description for Parcel 3 fails to close. Referring to this discrepancy in the final judgment, the court made the following finding:

“2. The boundary description of the lands covered by the lease, although not closing in a surveying sense in the Southeast corner thereof, is capable of being reformed to meet the intentions of the parties. The intent of the parties is evidenced by the exercise or lack of exercise of dominion and control over the lands by the Plaintiff or Defendants subsequent to the promulgation of the lease, the location of recognized monuments on the land, such as fence lines, gates, canals, ditches and roads within the area where the boundary description fails to close and the language of the lease instrument itself.”

On appeal, Mathews first contends that there was no meeting of the minds in that the intent of the parties was conflicting and ambiguous. Our study of the record indicates to the contrary. There is competent substantial evidence to support the court’s finding with respect to the property the parties intended to include in the lease and option.

A more serious point is whether the court could properly go outside the contract to supply a description in order to reform the contract. In Carson v. Palmer, 1931, 139 Fla. 570, 190 So. 720, the Supreme Court said:

“There are cases holding that where the description of land in a deed or mortgage is in some respect vague, uncertain or indefinite, parol evidence is admissible, to explain and remove, by proof of pertinent facts existing at the time, the uncertainty, and to identify the property intended to be conveyed, thus giving effect to the intention of the parties to the instrument. .
“There are, however, exceptions to this rule. One of the recognized exceptions is that of a patent ambiguity. A patent ambiguity in the description of land is such an uncertainty appearing on the face of the instrument that the Court, reading the language of the instrument in the light of all facts and circumstances referred to therein, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. .
“This type of ambiguity may not be removed by parol evidence, since that would necessitate the insertion of new language into the instrument, which under the parol evidence rule is not permissible. . . .”

The distinction between latent and patent ambiguity has been severely criticized. 30 Am.Jur.2d, Evidence § 1073; 102 A.L.R. 287. Some jurisdictions have chosen to reject the distinction and to treat patent ambiguities in the same manner as latent ambiguities. E. g., Stoffel v. Stoffel, 1950, 241 Iowa 427, 41 N.W.2d 16. Nevertheless, the Florida courts have continued to recognize the proposition that parol evidence cannot be introduced .to explain a patent ambiguity. Landis v. Mears, Fla.App.2d, 1976, 329 So.2d 323, (Opinion filed March 19, 1976); Ace Electric Supply Co. v. Terra Nova Electric, Inc., Fla.App.1st, 1973, 288 So.2d 544.

The description of Parcel 3, being ambiguous on its face, appears to fall within the definition of a patent ambiguity. The question then posed is whether the parol evidence restriction with respect to patent ambiguities is applicable in a suit for reformation. The effect of reformation on the parol evidence rule is explained by Williston as follows:

“The right of reformation, wherever allowed, is necessarily an invasion or limitation of the parol evidence rule, since when equity reforms a writing, it enforces an oral agreement at variance with the writing which the parties had agreed upon as a memorial of their bargain.
“This limitation is necessary to work justice, and there seems no more reason to object to it in case of reformation than in case of rescission for fraud or for mistake. It is understood that to warrant reformation or rescission, the court must be persuaded by the clearest kind of evidence that a mistake has been made by both parties, or in some cases by one, or that some other basis exists upon which relief should be granted.
“In either case, unless the mistake precludes the existence of a contract at law, it should not be denied that the writing correctly states the actual contract or conveyance which has been made, but since it is inequitable to allow the enforcement of it, and, since justice requires the substitution of another in its place, equity gives relief, where reformation is appropriate, and to that end, generally and necessarily admits any relevant parol or other extrinsic evidence.” 13 Williston on Contracts, Third Edition, § 1552.

See also, Sine v. Harper, 1950, 118 Utah 415, 222 P.2d 571; 3 Corbin on Contracts, § 540; 66 Am.Jur.2d, Reformation of Instruments, § 118.

The predicate for reformation in the instant case was mutual mistake. Obviously, neither party intended Parcel 3 to be described in the manner set forth in the lease. The court was entitled to consider extrinsic evidence in seeking to determine the understanding of the parties. Aided by the fact that Florida Crossbreeds had been in possession under the lease for more than three years, the court was able to specify the actual description of Parcel 3 as contemplated by both parties.

At first blush, our holding appears contrary to the case of Connelly v. Smith, Fla. App.3d, 1957, 97 So.2d 865, in which our sister court refused to reform a patently ambiguous deed description and denied the introduction of extrinsic evidence to clarify the description. However, that case was essentially a suit to quiet title. On the subject of reformation, the court only said:

“The plaintiff prayed in the alternative for reformation of the deed. The reformation needed was to supplement the description by adding the section, township and range, all of which were omitted. The complaint failed to meet the established requirements to make out a case for reformation. See Horne v. J. C. Turner Cypress Lumber Co., 55 Fla. 690, 45 So. 1016, 1018-1019; Interstate Lumber Co. v. Fife, 70 Fla. 178, 69 So. 715, 717; Bexley v. High Springs Bank, 73 Fla. 422, 74 So. 494.”

An analysis of the cases cited for the foregoing statement clearly demonstrates that the court had not rejected the theory of reformation as a possible remedy for a patently ambiguous description, but was simply saying that the complaint in that case (apparently involving a gratuitous conveyance) failed to include the elements necessary to state a claim for reformation. Cf. Patterson v. Taylor, Fla.App.3d, 1960, 123 So.2d 389. Here, Florida Crossbreeds pled and proved mutual mistake, one of the classic grounds for reformation. Shell Creek Land Co. v. Watson, 1931, 101 Fla. 172, 133 So. 621; Rucks v. Ansin, Fla.App. 4th, 1967, 198 So.2d 662. The court properly considered extrinsic evidence in determining the correct description for Parcel 3.

Finally, Mathews contends that Crossbreeds failed to properly exercise the option because there was no tender of $50,000 at the time its attorney advised Mathews of the exercise of the option. However, the record supports the conclusion that Crossbreeds was ready, willing and able to make the payment, and we believe that the court correctly held that the down payment did not have to be made when the option was exercised. The court required Crossbreeds to place the $50,000 in escrow pending the determination of marketable title and the execution and delivery of the appropriate closing documents. If anything, the detailed requirements of the judgment pertaining to the closing of the sale favored the Mathews’, so they are in no position to complain.

AFFIRMED.

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


author: HOBSON, Judge.

text:
    BURZENSKI NURSING HOME, INC., a Florida Corporation, Appellant, v. Ivan J. COOPER and Martha L. Cooper, husband and wife, Appellees.
    No. 75-1596.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Richard V. Harrison, Sarasota, for appellant.
    Jeffrey G. Wood of Icard, Merrill, Cul-lis, Timm & Furen, Sarasota, for appellees.
   HOBSON, Judge.

Appellant brings an interlocutory appeal from a temporary restraining order which was granted without notice. Our review is limited to the legal sufficiency of the appellees’ complaint. Hotel-Motel, R. E. & B. U. v. Black Angus of Lauderhill, Inc., Fla.1974, 290 So.2d 479. We find that the complaint was sufficient to support the restraining order but the trial court erred in failing to require bond. Tampa Port Authority v. Deen, Fla.App.2d 1965, 179 So.2d 416; Metropolitan Dade County v. Polk Pools, Inc., Fla.App.3d 1960, 124 So.2d 737.

Accordingly, we remand with instructions to the trial court to dissolve the temporary restraining order or require that suitable bond be posted.

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


text:
    610 LINCOLN ROAD, INC., d/b/a A. Taylor & Sons, a Florida Corporation, Appellant, v. MILTON KELNER, P.A., a Professional Association, Appellee.
    No. 72-1511.
    District Court of Appeal of Florida, Third District.
    April 22, 1976.
    Norman F. Solomon, Miami, for appellant.
    Milton Kelner, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 29, 1974 (289 So. 2d 12) reversing the final judgment of the Circuit Court for Dade County, Florida, m the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed February 11, 1976 (328 So.2d 193) and mandate now lodged in this court quashed this court’s judgment and remanded the cause with directions;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on May 15, 1976 is withdrawn, the judgment of this court filed in this cause on January 29, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the verdict and judgment of the trial court is reinstated and the cause is remanded with directions to require an accounting for costs expended and to require a refund of the retainer fees for the consignor actions. Costs allowed shall be taxed in the trial court (Rule 3.16b, F.A. R.).


text:
    STATE of Florida, Plaintiff, v. Larry David GAMBLE, Defendant.
    No. 75-1738.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    E. J. Salcines, Jr., State Atty., and James C. Simmons, Asst. State Atty., Tampa, for plaintiff.
    Gasper J. Ficarrotta, Ficarrotta & Ficar-rotta, Tampa, for defendant.
   PER CURIAM.

For the hereinafter stated reason, we decline to answer the question herein certified to us by the Circuit Court of the Thirteenth Judicial Circuit pursuant to Florida Appellate Rule 4.6, subd. a.

In view of the factual statements, which are sparse in certain material respects, it is clear that this court’s answer to the question would not be dispositive of the entire cause. Niemi v. Mebane Oil Co., Fla.App. 4th, 1974, 303 So.2d 661; Iorio v. State, Fla.App.4th, 1974, 297 So.2d 116; University of Tampa, Inc. v. Hillsborough County, Fla.App.2d, 1974, 287 So.2d 708.

CERTIFICATE DENIED.

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


text:
    Johnnie Lee JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 73-632.
    District Court of Appeal of Florida, Third District.
    April 22, 1976.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 18, 1974 (296 So.2d 519) affirming the judgment and setting aside the sentences of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed January 14, 1976 (327 So.2d 18) and mandate now lodged in this court quashed this court’s judgment and remanded the cause with directions to reinstate the sentences imposed by the trial court;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 10, 1974 is withdrawn, the judgment of this court heretofore filed on June 18, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the sentences imposed in this cause by the trial court are reinstated. Costs allowed shall be taxed in the trial court (Rule 3.16b, F.A.R.).


text:
    Ignacio F. AVILA, Appellant, v. The STATE of Florida, Appellee.
    No. 74-642.
    District Court of Appeal of Florida, Third District.
    April 22, 1976.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on December 3, 1974 (306 So. 2d 550) reversing the order of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed February 11, 1976 (327 So.2d 210) and mandate now lodged in this court, quashed this court’s judgment with directions ;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on February 4, 1975 is withdrawn, the judgment of this court filed December 3, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the sentence for violation of probation imposed in this cause by the trial court is reinstated. Costs allowed shall be taxed in the trial court (Rule 3.16b, F.A.R.).


text:
    William J. HOPKINS, Appellant, v. ZIPP SPORTING GOODS, INC., a Florida Corporation, Appellee.
    No. 75-1104.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Alexander L. Martone, Miami, for appellant.
    Smith, Mandler, Smith, Parker & Wer-ner, Miami Beach, and Patricia M. Silver, Miami Beach, Joe N. Unger, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL, (Ret.). Associate Judge.
   PER CURIAM.

Affirmed. See Whetzel v. Metropolitan Life Insurance Company, Fla.App.1972, 266 So.2d 89, which holds that a question of law is presented under the facts of this case. In our judgment, the question of law was correctly determined by the trial judge upon the basis of the law as stated in Manis v. Miller, Fla.App.1976, 327 So. 2d 117.