author: GRIMES, Chief Judge.

text:
    Charles George GRIESER, Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. 78-1266, 78-1267.
    District Court of Appeal of Florida, Second District.
    April 25, 1979.
    Rehearing Denied May 22, 1979.
    Frank A. Pavese and Stephen E. Dalton, of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.
    Alan E. DeSerio, Andrew H. Schuster and H. Reynolds Sampson, Tallahassee, for appellee.
   GRIMES, Chief Judge.

These are appeals from orders in a condemnation action determining that a defendant whose sole interest in the condemned property is that of a vendor under a contract for deed is not entitled to recover costs and attorney’s fees from the condemning authority.

■ The courts of Florida have consistently held that a vendor’s interest in a contract for deed is a security or lienhold interest. Adkinson v. Nyberg, 344 So.2d 614 (Fla.2d DCA 1977); Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975); Arko Enterprises, Inc. v. Wood, 185 So.2d 734 (Fla. 1st DCA 1966). Therefore, the controlling issue is whether a mortgagee or other lienholder is entitled to claim costs and attorney’s fees in a condemnation proceeding.

In Shavers v. Duval County, 73 So.2d 684 (Fla.1954), our supreme court specifically held that the mortgagee of condemned land was not entitled to recover attorney’s fees from the condemning authority. The court predicated its decision in large part upon Section 73.11, Florida Statutes (1951), which provided that the jury would set “a reasonable attorney’s fee for the defendant’s attorney.” The court reasoned that this language pertained exclusively to compensation to be awarded to the owner or owners of property taken and that it did not include a mortgagee who merely owned a chose of action creating a lien upon the property.

The appellant points out that Chapter 73 was amended in 1965. Section 73.081, Florida Statutes (1977), entitled “Form of Verdict,” which is comparable to Section 73.11, Florida Statutes (1951), now eliminates any reference to attorney’s fees. Instead, Section 73.091, Florida Statutes (1977), simply provides:

73.091 Costs of the proceedings. — The petitioner shall pay all reasonable costs of the proceedings in the circuit court, including a reasonable attorney’s fee to be assessed by that court.

Thus appellant argues that because the statute no longer requires a jury to set the attorney’s fee at the time they establish the condemnation award, a mortgagee who has been joined as a defendant should be reimbursed for attorney’s fees incurred in protecting his interest against conflicting claims in the supplemental proceeding contemplated by Section 73.101.

The appellant draws support from Orange State Oil Co. v. Jacksonville Expressway Authority, 143 So.2d 892 (Fla. 1st DCA 1962), which held, under the same statute effective when Shavers was decided, that both the lessee and the lessor of condemned property was entitled to recover their respective costs from the condemning authority. The court emphasized Section 73.16 Florida Statutes (1961), which specified that “all costs of proceedings shall be paid by the petitioner, including a reasonable attorney’s fee to be assessed by the jury . . .” In Owenby Auto Parts, Inc. v. Jennings, 259 So.2d 537 (Fla.2d DCA 1972), our court relied upon the Orange State Oil Co. decision to award attorney’s fees to a lessee in a condemnation action.

The appellant makes a compelling argument that he would not have incurred attorney’s fees to protect his position were it not for the fact that the land upon which he held a security interest was being condemned. Hence, he should be made whole according to the spirit of Article X, Section 6 of the Florida Constitution and Chapter 73. Be that as it may, since the date of the Shavers decision it has been generally understood that mortgagees are not entitled to attorney’s fees in condemnation proceedings. We cannot say that the legislature, by virtue of the 1965 amendment to Chapter 73, intended to change this rule. The primary purpose of this amendment as it relates to attorney’s fees was to provide that the court rather than the jury would set the amount of the fee. If mortgagees and other lienholders are now to be reimbursed for their attorney’s fees in condemnation proceedings, we believe the legislature should specifically say so. Because Chapter 73 has always treated attorney’s fees as a cost, we think the same principle precludes a mortgagee from the recovery of any other costs.

While our decision might be interpreted as receding from Owenby Auto Parts, Inc. v. Jennings, supra, we do not specifically do so at this time because of the differences which may exist between the interests of a lienholder and those of a lessee in condemned land.

AFFIRMED.

RYDER and DANAHY, JJ., concur.

      . Ch. 65-369, Laws of Florida.

      . The statutes with respect to determining conflicting claims to the amount awarded were not substantially changed by the 1965 amendments. Compare Section 73.101, Florida Statutes (1977), with Section 73.12, Florida Statutes (1951).

        .See Major Realty Corp. v. Florida State Turnpike Auth., 160 So.2d 125 (Fla.2d DCA 1964); Florida Eminent Domain Practice and Procedure, § 8.23 (3d ed. 1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, M. A. Cunningham, Lance A. Cunningham, and Cammie C. Deese, Appellees.
    No. KK-415.
    District Court of Appeal of Florida, First District.
    April 26, 1979.
    Rehearing Denied May 23, 1979.
    Robert K. Rouse, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P. A., Day-tona Beach, for appellant.
    Frank M. Gafford, Lake City, for Cammie C. Deese, and Richard A. Simon of Gurney, Gurney & Handley, P. A., Orlando, for Government Employees Ins. Co., appellee.
   PER CURIAM.

The question on this appeal is whether a family exclusion clause in appellant’s automobile liability insurance policy barred recovery of a third party contribution claim against its insured, a joint tortfeasor in an accident for which the contribution claimants had paid all of the damages. We hold that the clause could not validly bar recovery and affirm the trial court.

The stipulated facts reveal that a two-car accident occurred between Lance Cunningham and Cammie Deese in July, 1976. Deese’s wife, Myrtis, was injured, and she brought a bodily injury action against Cunningham, his father (the owner of the car), as well as the father’s insurer, Government Employees Insurance Company (GEICO). The Cunninghams and GEICO counterclaimed against Cammie Deese and his insurer, Florida Farm Bureau, for contribution. A jury trial was held on liability and damages. Myrtis Deese’s damages were assessed at $25,000. Cunningham was found 90% negligent in the accident; Deese 10% negligent. GEICO paid the award to Mrs. Deese on behalf of the Cunninghams and pursued its contribution claim against Cam-mie Deese.

Florida Farm Bureau denied coverage, relying upon a family exclusion clause in its liability policy precluding coverage “to bodily injury or to death of the insured or any member of the family of the insured residing in the same household.” Florida Farm contends that such clauses have been upheld as valid in Reid v. State Farm Fire and Casualty Co., 352 So.2d 1172 (Fla.1977), and therefore the clause must be enforced as written to preclude coverage for injuries to Deese’s wife. Appellees reply that abrogation of the interspousal tort immunity doctrine for contribution claims in Shor v. Paoli, 353 So.2d 825 (Fla.1977), has undercut the policy reasons supporting such clauses and has in effect rendered them contrary to public policy.

We agree with appellees. First, it is apparent that the rationale urged by the court in Reid v. State Farm, supra, in support of family exclusion clauses — protection of the insurer from direct collusive lawsuits between family members — does not apply within the context of a third party contribution action against an insured who has been found responsible by a jury for a portion of his family member’s damages. Second, the consideration traditionally supporting interspousal immunity — to protect family harmony and resources — is similarly inapplicable in the third party contribution situation. Finally, it is clear from a reading of Shor v. Paoli, supra, that the common law doctrine of interspousal immunity does not control over the Uniform Contribution Among Tortfeasors Act to prevent one tort-feasor from seeking contribution from another tortfeasor when the other tortfeasor is the spouse of the injured person who received damages from the first tortfeasor. This aspect of the case is indistinguishable from Shor where the court emphasized the inequity of allowing a joint tortfeasor to be shielded from liability to another unrelated tortfeasor who has paid for 100% of the damages sustained in the accident.

We conclude that the trial court committed no error in granting appellees’ contribution claim against Deese for 10% of his wife’s damages despite the family exclusion clause in his automobile liability policy. Finding no direct controlling authority on the issue, however, we certify the following question to the Supreme Court of Florida to be of great public interest:

DOES A FAMILY EXCLUSION CLAUSE IN AN AUTOMOBILE LIABILITY INSURANCE POLICY CONTROL OVER THE UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT TO PREVENT ONE TORTFEASOR FROM SEEKING CONTRIBUTION FROM ANOTHER TORTFEASOR WHEN THE OTHER TORTFEASOR IS THE SPOUSE OF THE INJURED PERSON WHO HAS RECEIVED DAMAGES FROM THE FIRST TORTFEASOR?

Our resolution of the question supports the trial court’s award of attorney’s fees to Deese against Florida Farm Bureau. The judgment is therefore affirmed in its entirety.

AFFIRMED.

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


author: SCHWARTZ, Judge.

text:
    Stacey BRADLEY, a minor child, By and Through her mother and guardian Cathy Bradley and Lawrence Bradley, Appellants, v. William E. BRADLEY, Appellee.
    No. 78-1453.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Scott T. Eber, Miami, for appellants.
    Anthony F. Paterna, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Section 732.502(1), Florida Statutes (1975) provides that “[t]he testator must sign his will at the end . ” [e. s.] Louise Bradley apparently signed her two page printed form will, not on the designated line, but rather following the printed words “Will of” in the indorsement or identification section of the form. Without taking testimony which was subject to cross-examination, and based only on an “oath” of a witness to the will, which was sworn to but which was itself merely a form, the trial judge nevertheless admitted the instrument to probate. On this appeal by those of the decedent’s heirs who seek to take by intestacy, we reverse the order below and remand the cause for a full evidentiary hearing.

The “Rameo Form 455” will employed by Mrs. Bradley, without the advice of a lawyer, consists of a single sheet, with printing on both sides. On the front or first page, Mrs. Bradley hand wrote the intended disposition of her estate and filled in the name of the present appellee, one of her sons, as her executor. The reverse or second page was executed as follows:

Since the notary signed where the testatrix should have, the only purported signature of Mrs. Bradley thus appears in the “vertical” section of the form. Is that place “at the end” of this will? We hold that this question should not have been answered below without holding a formal hearing on the issue.

The varied imagination of mankind seems to have manifested itself in the countless ways in which it makes its wills. And it is a monumental understatement that the courts have been perplexed by the proper application to these myriad situations of the common, and apparently simple, statutory requirement that a will be signed at its “end.” See In re Schiele’s Estate, 51 So.2d 287 (Fla.1951) (decisions characterized as in “sharp and almost irreconcilable conflict”); cases collected, Annot., When is Will Signed at “End” or “Foot” as Required by Statute, 44 A.L.R.3d 701-749 (1972). The general rule to be followed in resolving these problems has been, we think accurately, summarized as follows at 44 A.L.R.3d 710:

“The cases treated in the annotation generally recognize that in enacting a statute requiring a testator to sign his will ‘at the end,’ the legislature was not demanding that a testator sign at the physical end of his will or at the point spatially farthest from the beginning of the instrument. On the contrary . the ‘end’ of a will, as contemplated by a statute requiring that a testator sign at that point, is the logical end of the language used by the testator to state his testamentary intention, or, in other words, the sequential end of the paragraphs and pages, as made manifest on the face of the instrument.”

The difficulty, as usual, arises in applying the general rule to the particular facts before us. In attempting to do so, we are met with conflicting inferences which arise from the face of the instrument.

On the one hand, it seems quite clear that the place where Mrs. Bradley signed was not the “logical” end of the testamentary language. The line on the instrument specifically for the willmaker’s signature, where the notary signed instead, plainly was the logical end; that is exactly why the line was put there. Reflecting this fact, several courts have concluded that a signature placed, as was Mrs. Bradley’s, after the printed identification of an instrument as the “Will of . . ” was not at the “end” of the will. In re Seaman’s Estate, 146 Cal. 455, 80 P. 700, 703 (1905), and cases cited; In re Dietterich’s Estate, 127 Pa.Super. 315, 193 A. 158 (1937); In re Gagen’s Will, 46 N.Y.S.2d 215 (Sur.Westchester Co., 1944); cf. In re Conway’s Will, 124 N.Y. 455, 26 N.E. 1028 (1891).

On the other hand, in contrast to the situations in the Seaman and Gagen cases, supra, in which the “Will of . . . ” printing was separated by one or more pages from the dispositive provisions of the instrument, the signature in this case was physically in immediate juxtaposition to that language. Thus it satisfied the condition stated in In re Seaman’s Estate, supra, at 80 P. 702; that

“It must appear upon the face of the instrument not only that he intended to place [the signature] at the end of his testamentary provisions, but that he has in fact placed it in such proximity thereto as to constitute a substantial compliance with this requirement of the statute.”

Moreover, it seems very likely on the face of it that Mrs. Bradley signed at the place in question immediately after and thus temporally at the “end” of her preparation of the will. See 44 A.L.R.3d 713-714. Finally, the fact that the notary apparently again signed under Mrs. Bradley’s signature lends further support to the conclusion that she intended her signature “to indicate an authentication of the instrument as a completed expression of [her] testamentary purposes.” Graham v. Edwards, 162 Ky. 771, 173 S.W. 127, 128 (1915).

Under these conflicting circumstances, we think that the issue was not properly decided as a matter of law, nor merely on the basis of the witness’s oath, submitted ex parte. It should instead be determined after a formal hearing on the question, with each side given the opportunity to call and cross-examine witnesses. This conclusion is supported, in fact required, by the decision in In re Schiele’s Estate, supra. In that case, our supreme court affirmed the appellate determination of the circuit court which reversed a judgment of the county judge’s court that a signature in the attestation clause was not at the “end” of the will. The lower court was required to receive evidence

“ . . . ‘as to the manner in which the said Will was executed and as to whether the signature in the attestation clause was written as his signature with the testamentary intent required by law’.”

In re Schiele’s Estate, supra, at 51 So.2d 289. The supreme court decision specifically rejected the contention that this disposition was erroneous. While Florida is apparently the only jurisdiction in which this issue is one concerning which a trier of fact may consider evidence beyond the face of the document, cf. In re Seaman’s Estate, supra, at 80 P. 703, cases collected, 44 A.L.R.3d 713, we are bound to follow this unequivocal decision of our highest court in a ease, like this one, to which its holding so clearly applies. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We have no reluctance, however, in doing so in this case. The problems about which we have spoken and which arise from a consideration merely of the instrument itself strongly support the correctness of the result in Schiele that live evidence should also be heard. The judgment under review is therefore reversed and the cause remanded with directions to conduct a hearing as to the manner and intention surrounding the execution of the instrument offered for probate.

Reversed and remanded.

      . Apparently everyone thought the word “seal” meant that a notary and a notarial seal were required. Of course, they were not.

      . There is no claim that, as in In re Schiele’s Estate, infra, she printed “Louise M. Bradley” in the attestation clause.

      . At 44 A.L.R.3d 727, the Gagen case is described as one in which the testator’s signature appeared “on the back” of the will.

      .The Pennsylvania Dietterich case, supra, is factually on point but is not persuasive in Florida because it relies on In re Churchill’s Estate, 260 Pa. 94, 103 A. 533 (1918), which holds that a signature in the attestation clause is not at the “end” of the will, and is thus directly contrary to In re Schiele’s Estate, supra.


author: PER CURIAM. CROSS, Judge,

text:
    O. R. COUSINEAU d/b/a Regency Square, and O. R. Cousineau, Individually, Appellant, v. John F. McLEAN, and Patricia M. McLean, d/b/a Lovely Lady Beauty Salon, Appellees.
    No. 78-524.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    John A. Baldwin, of Baldwin & Dikeou, Fern Park, for appellant.
    Richard S. Rhodes, Orlando, for appellees.
   PER CURIAM.

Affirmed.

ANSTEAD and DAUKSCH, JJ., concur.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent. The appeal is from an order granting a rehearing on “remaining issues,” which order I consider to be non-appealable. Therefore, I would dismiss the appeal.


text:
    Victor POSNER, Appellant, v. Richard S. FLINK, Appellee.
    Nos. 78-432, 78-433 and 78-437.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 11, 1979.
    Cypen & Nevins, Miami Beach, Buchbin-der & Elegant and Ira M. Elegant, Miami, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Posner v. Flink, 167 So.2d 259 (Fla. 3d DCA 1964); see Posner v. Flink, 330 So.2d 29 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1103 (Fla.1977).


author: PEARSON, Judge.

text:
    Stamatia C. BICKFORD and Roy W. Bickford, Appellants, v. Arlene R. WALL and Clarence Wall, her husband, Appellees.
    No. 78-572.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 11, 1979.
    Adams & Ward and Robert E. Schack, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Leo B. West, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PEARSON, Judge.

Appellants Stamatia C. Bickford and Roy Bickford, defendants in the trial court, received a jury verdict which was set aside by the trial judge who, on his own motion, awarded the plaintiffs a new trial on the grounds that the court had inadvertently failed to charge the jury on Section 627.-737(2)(e), Florida Statutes (1977).

On this appeal, it is first urged that the trial court lacked jurisdiction to enter the order. We hold that the trial court had jurisdiction pursuant to Florida Rule of Civil Procedure 1.530(d).

It is next urged that it was error for the trial judge to grant a new trial on the ground of his failure to give a portion of an instruction that he had previously indicated he would give, where the plaintiff failed to object at trial, thereby waiving the error. In Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974), we pointed out that the authority of the trial judge to grant a new trial because of his failure properly to instruct the jury is not limited to instructions which are objected to. Further, we are unable to construe the appellees’ failure to do more than call the court’s attention to its oversight, at the time the instruction was given, as a waiver of the trial judge’s authority to grant a new trial upon his finding that the error may have caused confusion or oversight by the jury.

We must also consider whether, under the circumstances of this case, the trial judge had a reasonable ground to find that the error in instructions could have affected the jury’s verdict. This is, of course, an area where the trial judge is at the scene and his determination in the matter is entitled to the greatest weight. See Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961).

Our examination of the record convinces us that the evidence supported the giving of the charge.

Affirmed.

      . “(d) On Initiative of Court. Not later than ten days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.”


text:
    Morris LIEBMAN, Appellant, v. METROPOLITAN DADE COUNTY PUBLIC SAFETY DEPARTMENT, Appellee.
    No. 78-1285.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 11, 1979.
    A. John Goshgarian, Miami, for appellant.
    Janet Reno, State’s Atty. and Bayard W. Heath, Asst. State’s Atty., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on authority of Salazar v. Sandstrom, 355 So.2d 145 (Fla. 3d DCA 1978); and see State ex rel. Kimbro v. Starr, 65 So.2d 67 (Fla.1953).


text:
    James Henry CAMPFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 78-2227.
    District Court of Appeal of Florida, Second District.
    May 9, 1979.

      Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence, but strike the order assessing court costs. Since the court adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


text:
    Judy K. LANHAM, Petitioner, v. AMERICAN POSTAL WORKERS UNION (NATIONAL), Respondent.
    No. 79-679.
    District Court of Appeal of Florida, Second District.
    May 9, 1979.
    Donald M. Spangler of Anderson & Span-gler, St. Petersburg, for petitioner.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioner to seek review of the matters contained therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla.2d DCA 1973).

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


author: MELVIN, Judge.

text:
    Telfair Stockton ROGERS, Appellant, v. ATLANTIC NATIONAL BANK OF JACKSONVILLE et al., as Successor Trustees, etc., James Roosevelt Stockton, Jr., Preston Stockton Bowen, James Roosevelt Stockton, III, Caroline Pace Walton Stockton, Julia Peyton Randolph Stockton, Elizabeth Bryan Layton Stockton, Paul Eugene Bowen, III, Elizabeth Randolph Preston Bowen, Telfair Stockton Bowen, Pamela Rogers Doolittle, Telfair Stockton Rogers, Jr., David Dunn Rogers, Robert Patrick Doolittle, Jr., and Atlantic National Bank of Jacksonville, as Personal Representative of the Estate of Telfair Stockton, Jr., Appellees.
    No. II-70.
    District Court of Appeal of Florida, First District.
    May 10, 1979.
    Rehearing Denied June 7, 1979.

      Carl D. Dawson, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Clarence G. Ashby, John Ferrell Fannin, Jean C. Coker, of Coker & Coker, Charles P. Pillans, III, of Bedell, Bedell, Dittmar & Zehmer, Leonard Mayer Alterman, L. Peter Johnson, of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellees.
   MELVIN, Judge.

Appellant Telfair Stockton Rogers by this appeal seeks to overturn a final declaratory judgment of the trial court in the matter of the construction of a testamentary trust contained in the Last Will and Testament of Florence 0. Stockton, said Will being of date June 5, 1931; and a declaratory trust of date June 14, 1946, effective as of March 1,1932, executed by Florence Stockton Rogers and James Roosevelt Stockton, said trust being for the use and benefit of Tel-fair Stockton, Jr. The declaration of trust recited that Telfair Stockton, Jr., James Roosevelt Stockton, and Florence Stockton Rogers were all of the living children of the late Telfair Stockton and the late Florence 0. Stockton.

At the time Florence 0. Stockton executed her Will, she had a husband, Telfair Stockton, Sr., three children, Florence Stockton Rogers, James Roosevelt Stockton, Sr., and Telfair Stockton, Jr. (who was alleged to be incompetent); one grandchild, Telfair Stockton Rogers, born April 24, 1923, who is the appellant. The Will contained a testamentary trust that was to continue in effect during the life of Telfair Stockton, Jr., who died December 24, 1976. His brother James Roosevelt Stockton, Sr., died February 11, 1969, and sister, Florence Stockton Rogers, died October 28, 1971. As of the date of death of Telfair Stockton, Jr. (who died without issue), his brother, James Roosevelt Stockton, Sr., had two living children and several living grandchildren. Those living children were Preston Stockton Bowen, born March 13, 1933, and James Roosevelt Stockton, Jr., born February 27, 1934. Florence Stockton Rogers, at the time of her death October 28, 1971, had one living child, Telfair Stockton Rogers, born April 24, 1923, three living grandchildren, and one great-grandchild. Thus, we observe that there were 14 descendants of James Roosevelt Stockton, Sr. and Florence Stockton Rogers. (A chart setting forth the Stockton Family tree may be found on the last page of this opinion.)

We first consider the point as to who under the Will is entitled to receive the corpus of the trust. It is contended by the appellant that the corpus should be distributed per capita among the three living children of the testatrix’s son and daughter. The lower court did not agree with this contention and ruled that the corpus must be divided per capita among the 14 living descendants of the testatrix’s deceased son and daughter without regard to the degree of relationship to the deceased son and/or the deceased daughter.

The answer to this question, of course, turns upon just what the testatrix meant when she used the word “issue” of her son and daughter. By the use of that term, we must determine whether or not she intended the same to encompass all lineal descendants of her son and daughter or whether she intended that term to be limited to the children of her son and daughter.

The provisions for the distribution of the corpus of the testamentary trust, as well as the declaration of trust, are substantially identical. The material portions of the testamentary trust provide:

“ITEM 5. Upon the death of the surviv- or of Telfair Stockton and Telfair Stockton, Junior, this trust estate shall terminate and the corpus thereof and any accrued and undistributed income arising therefrom, real, personal and mixed, in esse and in futuro, and all of my remaining property shall vest absolutely free of trust and I hereby as of that date give, devise and bequeath the same unto my daughter, Florence Stockton Rogers, and my son, James Roosevelt Stockton, in equal parts in fee simple forever, if they be living at such time, and if not then to the survivor of them if one shall have died without issue of his or her body, in fee simple forever, and if one of them shall be dead, leaving issue of his or her body then surviving and the said other shall be living, then to such issue, per stirpes, and to the other who is living, share and share alike in fee simple forever, and if both shall be dead then to the living issue of each or either of them per capita, in fee simple forever. . . .”
(Emphasis supplied)

It is a cardinal rule relating to the construction of a Will that the testator’s intent, if the same be lawful, shall prevail. Thus, when the testator in one part of the Will clearly utilizes the term “issue” in referring to children, it will be presumed to be used in that sense in other clauses of the Will, in the absence of an expressed intent to the contrary. Page, The Law of Wills, p. 450. The term “issue” will be construed to mean “children” upon even a slight indication that such was the intention of the testatrix. See Kramer v. Freedman, 346 So.2d 1216 (Fla. 3d DCA 1977).

When the word “issue” appears in an instrument and the same is used with reference to the parent of that issue, it means children, or stated differently the word “parent” confines the word “issue” to the children of the taker. 48 C.J.S. Issue, p. 781.

Page, The Law of Wills, Section 34.22, provides:

“. . . Whatever may have been the original rule, the courts today tend strongly to the view that the children of living parents do not take under a gift to ‘issue’ as against their parents.”

Simes, The Law of Future Interests, Section 106, at p. 219, provides:

“At one time a testamentary gift to ‘issue’ of a named person, to take effect on his death, was held to mean that all lineal descendants of such person of every degree would take per capita. Today in the absence of language or circumstances indicating contrary intent, such a gift means that those lineal descendants of the named person who would take his property on his death intestate, according to the .local statutes of descent and distribution, will take the same shares in the gift which they would receive as distribu-tees under such statutes.”

Let us now consider the alternative remainders that the testatrix set forth in her Will for distribution of the corpus. We note there a pattern of distribution that is in proportion to the degree of kinship. The first alternative remainder left the corpus to her two children equally, effective upon the death of her son, Telfair Stockton, Jr. The second alternative remainder provided that if one of her children was deceased without issue then the entire corpus would go to the remaining living child. The third alternative remainder provided that if one of her children was deceased with issue and the other living, the living child would take one-half of the corpus and the issue would take the other half per stirpes. The fourth alternative remainder, as we construe the provisions of the testamentary trust, provides that if both of her children are deceased, each having living children, then such living children would take per capita and not per stirpes. We find another indication of the testatrix’s intent as to the use of the word “issue” in Item 4 of the Will. This deals with the distribution of the income from the trust. We there find written:

“The net income payable under the provisions of paragraph (e) hereof to my three children shall, during the lifetime of Tel-fair Stockton, Junior, and from time to time be payable to the survivor or survivors of my three children, unless either Florence or James shall die with issue of her or his body, in which case such issue or the survivor or survivors of them, while living and during the lifetime of Telfair Stockton, Junior, take the share, per stirpes, of the net income which would have been payable from time to time to the parent of such issue had such parent continued to live. . . . ”

We perceive that here the testatrix is clearly stating that the income shall be. payable to the issue of her son or daughter, “or the survivor or survivors of them” per stirpes. By limiting the income to the “survivor or survivors” of the issue of her son and daughter, we perceive it to be clear that the testatrix was not contemplating that the “issue” would extend beyond the children of her son and daughter. If she had so contemplated, she would not have denied the income to all the lineal descendants of her son and daughter.

Upon a consideration of the record before us, we conclude that it was the intent of the testatrix to leave the corpus of the trust to the children of her son and daughter and not to all of the lineal descendants of them.

The remaining question presented by this appeal concerns the status of income received by the testamentary trust and the declaratory trust that had accrued but had not been fully paid over to the income beneficiaries prior to December 24, 1976, the date of death of Telfair Stockton, Jr.

Where the terms of an instrument are clear and unambiguous, there is no need for the court to indulge in an interpretation as to the intent of the writer of such instrument.

The testamentary trust and the declaration of trust provides that upon the death of Telfair Stockton, Jr. “this trust estate shall terminate and the corpus thereof and any accrued and undistributed income arising therefrom” shall vest the same order as is set forth in “Item 5” above.

It is clear from that which is written that the testator as well as the writers of the declaration of trust intended that upon the death of Telfair Stockton, Jr., any income right that he had at such moment would terminate and that as to any accrued and undistributed income of whatsoever kind, such would pass as indicated to Florence Stockton Rogers and James Roosevelt Stockton and through them to their respective children, Preston Stockton Bowen, James Roosevelt Stockton, Jr. and Telfair Stockton Rogers. It was never the intention of the testatrix or the parties preparing the declaration of trust that the estate of Telfair Stockton, Junior, would ever accrue any vested interest in any accrued but undistributed income, or corpus of the trust.

Therefore, the judgment of the lower court is reversed with directions to enter judgment, distributing the corpus of the trust, including any earned and undistributed income, to Telfair Stockton Rogers, Jr., James Roosevelt Stockton, Jr., and Preston Stockton Bowen, the three living grandchildren, in equal shares.

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


author: McCORD, Chief Judge.

text:
    ST. JOE PAPER COMPANY, Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. KK-88.
    District Court of Appeal of Florida, First District.
    May 15, 1979.

      Lynn C. Higby and C. Richard Watson, of Isler, Higby, Brown, Smoak & Watson, Panama City, for appellant.
    Louis F. Hubener, Tallahassee, for appel-lee.
   McCORD, Chief Judge.

Appellant, St. Joe Paper Company (St. Joe), appeals the assessment against it of $70,100 liquidated damages for 701 days of noncompliance with Department of Environmental Regulation Rules and Regulations. We affirm.

This appeal involves an interpretation of a Stipulation for Consent Order entered into by the parties, and approved by the trial court, in an effort to give St. Joe Paper Company a fair opportunity to comply with certain new environmental regulations enacted by the Department. The new regulation restricted the amount of “fly ash,” a by-product of the processing of pulpwood into paper, which could be allowed to escape into the air. The regulation went into effect on July 1, 1975. Because of the physical impossibility of St. Joe complying by July 1, 1975, St. Joe and the Department entered into the Stipulation which has led to this appeal.

The Stipulation provides in pertinent part:

“A. Compliance by St. .Joe Paper Company with Federal and State air emission standards for the emission of bark particulates for its Number 4 power boiler shall be extended from July 1,1975 until January 1, 1976.
1.Thereafter, St. Joe Paper Company will meet all Florida rules and regulations for the emission of bark particulates from said Number 4 power boiler.
* * * * sfc sH
B. After pollution control equipment designed to bring Power Boiler Number 4 into compliance with applicable standards is connected and operable, the St. Joe Paper Company may activate Power Boilers Numbers 1 and 2 upon the following conditions:
1. Power Boilers Numbers 1 and 2 will meet state air standards for the emission of particulates on or before July 1, 1976.
2. During the interim period between completion of the pollution abatement modif(cations of Power Boiler Number 4 and the date specified in 1. above, the combined emissions of particulates from Power Boilers Numbers 1 and 2 shall not exceed a total of 4,300 pounds per day.
3. During the interim period between the completion of the pollution abatement modification of Power Boiler Number 4 and the date specified in 1. above, the combined emissions of particulates from Numbers 1, 2, and 4 shall not exceed a total of 5600 pounds per day.
s(c sfc * sfc is
C. The Department of Environmental Regulation agrees to waive its right to seek the imposition of civil or criminal fines or penalties against the St. Joe Paper Company so long as the terms and conditions of this agreement are in ef-feet; however, nothing in this agreement shall prevent the Department from requesting a Court of appropriate jurisdiction to utilize its injunctive powers to prevent any damage to the health or welfare of the people of the State of Florida. D. . since said damage is too prospective to determine exactly at this time, it is agreed upon that the following amounts shall be awarded to the Department of Environmental Regulation and against the St. Joe Paper Company as liquidated damages each day the St. Joe Paper Company operates the portions of its plant described herein in a manner not in compliance with Florida rules and regulations after the dates for compliance stated in this agreement, to wit:
1. The sum of $1,000 per day for the first 90 days.
2. $2,000 per day for the next 60 days. G. Should any event beyond the control of St. Joe Paper Company (force maj-eure) occur, St. Joe Paper Company may partially mitigate the liquidated damages stated hereinabove by acting in the following manner:
1. The St. Joe Paper Company shall prove the occurrence of the force majeure event and the time delayed thereby to the Court after notice to all parties and a full hearing thereon. The notice of said hearing must be mailed prior to the expiration of the compliance date.
3. Should the Court find that a force majeure event occurred, it shall also be requested to find the reasonable amount of days thereof and to extend the compliance date under this agreement accordingly.
4. If the Court should find the existence of a force majeure event, St. Joe Paper Company agrees to pay the sum of $100 per day for each day it failed to operate in compliance with Florida Department of Environmental Regulation rules and regulations for the amount of days the compliance schedule is increased past the original agreed upon date as a result of said event.
5.A force majeure is defined for the purposes of this agreement as:
‘Acts of God or the public enemy; expropriation or confiscation of facilities; compliance with any order of any governmental authority; shortage or unavailability of materials, equipment, labor or technical personnel; . epidemics or breakdowns; riots, strikes, slowdowns and walkouts, blockouts, or other industrial disturbances, whether direct or indirect; or any cause, whether or not of the same class or kind as those specifically named above, not within the reasonable control of the company.’ ” (Emphasis supplied)

St. Joe installed a dry scrubber fly ash collector in December, 1975, in its effort to comply with the new regulation. However, the new scrubber never worked properly because of an error in design, according to St. Joe. In April, 1976, St. Joe sought an extension of compliance date which the Department refused in July, 1976. In accordance with paragraph G of the Stipulation, St. Joe then filed a motion requesting the court to make a determination that a “force majeure” had occurred and to extend the compliance date. After an evidentiary hearing, the trial court ruled that a force majeure had occurred and thereby limited St. Joe’s liability to $100 for each day of noncompliance after January 1, 1976, pursuant to paragraph G4 of the Stipulation. The court extended the compliance date to July 15, 1978. Additional evidence was heard for the purpose of determining how many days St. Joe was not in compliance and the trial court found that St. Joe was in noncompliance for 701 days between January 1, 1976, and February 28, 1978, and assessed liquidated damages at $70,100.

St. Joe concedes that it was not in compliance for 102 days of the period in question and contends that damages of no more than $10,200 should be assessed against it. St. Joe argues that the Stipulation is ambiguous, and the trial court has misinterpreted the ambiguities contained therein. St. Joe argues that Paragraph G4 of the Stipulation should be read to mean that when the trial court extends the compliance date, St. Joe is liable for the $100 a day penalty only if it exceeds the 5,600 pounds per day of combined emissions from Boilers 1, 2 and 4, as allowed by paragraph B. (The evidence before the trial court indicated that Boilers 1 and 2 had been operating during the extended period of time.) St. Joe contends that when the trial court extended compliance of Boiler 4 until July 15, 1978, compliance of Boilers 1 and 2 was automatically extended for six months beyond that date (until January 15, 1979) since the original purpose behind having the compliance date of Boilers 1 and 2 six months after the compliance date of Boiler 4 was to allow St. Joe time to establish a scrubber system that would work before installing the system in all the boilers.

We disagree with St. Joe’s interpretation of the Stipulation. We do not find the Stipulation ambiguous. It does not provide that if a force majeure is declared by the court, Boiler 4 could be operated after January 1, 1976, without liability if it were not in compliance with the regulations. The Stipulation merely provides for a reduced penalty for St. Joe if a force majeure occurred. Were it not for the Stipulation, St. Joe could not have operated without suffering full penalty for noncompliance under § 403.141, Florida Statutes, in an amount up to $10,000 per day.

Paragraph B is not applicable. It comes into effect after the equipment installed in Boiler 4 is operable — has been brought into compliance. Thus, St. Joe’s compliance with the emission allowance of paragraph B is irrelevant.

The judgment of the trial court comes to us clothed with a presumption of correctness. White v. White, 306 So.2d 608 (Fla. 1 DCA 1975), and Merritt v. Williams, 295 So.2d 310 (Fla. 1 DCA 1974). We find no error in the trial court’s construction of the Stipulation and its application of the facts thereto.

AFFIRMED.

ERVIN and MELVIN, JJ., concur.


text:
    Theresa J. MANFER, Appellant, v. Richard D. BERTONE, Appellee.
    No. KK-69.
    District Court of Appeal of Florida, First District.
    May 15, 1979.
    Rehearing Denied June 15, 1979.
    Sheldon Yavitz, Miami, for appellant.
    Irwin A. Connelly, Bunnell, for appellee.
   MELVIN, Judge.

Ms. Manfer appeals a final summary judgment granted in favor of Bertone, the attorney/defendant in the malpractice action below. Upon considering the briefs, the depositions, and the pleadings, it does not appear that appellee, as the moving party, has sustained his burden to show that there is no genuine issue as to the material facts and that he is entitled to a judgment as a matter of law. See Glass v. Camera, 369 So.2d 625 (Fla. 1st DCA 1979).

Reversed.

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


text:
    Alfred I. GELLMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1474.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 15, 1979.

      Hirschhorn & Freeman and Joel Hirsch-hom, Miami, for appellant.
    Jim Smith, Atty. Gen. and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Defendant, Alfred Gellman, appeals his conviction on 10 counts of grand larceny (auto theft) and contends that the trial court erred in denying his motion for judgment of acquittal where the prosecution failed to establish with clear convincing evidence that the theft of 10 automobiles was committed with the requisite felonious intent to the exclusion of every reasonable doubt. We find this point well taken.

It is necessary to prove that one charged with the crime of larceny possessed a felonious intent. Canada v. State, 139 So.2d 753 (Fla. 2d DCA 1962). The existence vel non of the requisite felonious intent is for the trier of the fact to determine subject to the legal requirement that there be substantial competent evidence from which the trier of the fact may so infer this intent. Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966). Where, as in the instant case, the prosecution attempts to prove the element of felonious intent by circumstantial evidence, such proof must not only be consistent with guilt but also inconsistent with any other reasonable hypothesis of innocence. McGough v. State, 302 So.2d 751 (Fla.1974); Ross v. State, 285 So.2d 429 (Fla. 3d DCA 1973). The evidence in the case at bar reflects that Gellman obtained the consent of at least three individuals who held key management positions with respect to the day to day operation of North American Marketing (the owner of the vehicles) and whom he reasonably believed had the requisite authority to transfer the 10 vehicles to Haiti. In addition, he did not claim ownership of the vehicles as the Haitian franchise was not in his name but in the name of North American Marketing. Further, the receipts from the freight forwarder reflected that the shipment of the automobiles was to and from North American Marketing. We, therefore, conclude that the prosecution failed to prove the requisite element of felonious intent to the exclusion of every reasonable hypothesis of innocence.

There being insufficient competent evidence to sustain the finding of guilt, the convictions are reversed and Gellman is discharged.

Reversed.


text:
    TROPICAL STEAMSHIP CORP., INC., and Eastern Steamship Lines, Inc., Appellants, v. BENDIX HOME SYSTEMS, INC., Appellee.
    No. 78-1616.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 15, 1979.

      Shutts & Bowen and Eric B. Meyers, Miami, for appellants.
    Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Appellants, defendants below, bring this appeal from a final judgment entered by the trial court pursuant to jury verdicts which awarded appellee, plaintiff below, compensatory and punitive damages on its breach of contract and fraud claims arising out of a cruise agreement. After carefully reviewing each of the points raised by appellants, we are of the opinion that they have failed to demonstrate any reversible error. Although we might not have reached the same conclusions as the jury based on the conflicting evidence in this matter, we are not at liberty to substitute our judgment for that of the jury if there is substantial evidence to support the judgment. Accordingly, the judgment appealed is affirmed. See, e. g., Dowling v. Loftin, 72 So.2d 283 (Fla.1954); Ray v. Dock & Marine Construction, Inc., 183 So.2d 237 (Fla.3d DCA 1966); Hodges v. Notsinger, 183 So.2d 14 (Fla.3d DCA 1966); Booker v. Lima, 182 So.2d 642 (Fla.3d DCA 1966); Old Equity Life Insurance Co. v. Levenson, 177 So.2d 50 (Fla.3d DCA 1965); Richardson v. Sams, 166 So.2d 408 (Fla.1st DCA 1964), and Miami Shores v. Lingler, 157 So.2d 716 (Fla.3d DCA 1963).

Affirmed.


text:
    Berta COTO, Individually, and Rolando Coto, as husband of Berta Coto, Appellants, v. ANIPECU, INC., a Florida Corporation, Appellee.
    No. 78-1820.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 15, 1979.

      Schweitzer & Kosdan and Brian W. Paris-er, Miami, for appellants.
    Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

While standing at the clothes line in the yard of her apartment house, Mrs. Coto was struck in the eye by a piece of wire thrown up by a power lawn mower being operated by her son, Rolando, Jr. Rolando was mowing the lawn at the apartment building, which was owned, along with the mower itself, by the present appellee, Anipecu, Inc. The mower had been entrusted by the corporation to its apartment co-managers, Mr. and Mrs. Alfaro, who were primarily responsible for the maintenance of the premises, including the lawn. Mr. Alfaro, however, had suffered a heart attack, and was thus physically unable to use the mower. His wife apparently could not operate the equipment, so the grass went uncut for several weeks. On the day in question, after Mrs. Alfaro had tried to do so herself, Rolando, Jr. either volunteered or was asked by Mrs. Alfaro, to do the job. The accident occurred as he was doing so in the presence of both Alfaros and under the specific direction of Mr. Alfaro. Mrs. Coto and her husband sued Anipecu, Inc. for her injuries on the theory that Coto, Jr. was an implied sub-servant of the defendant-landlord and that it was therefore vicariously liable for his negligence under the respon-deat superior doctrine. The trial judge entered summary judgment for the defendant and the plaintiffs appeal. We reverse.

The summary judgment was entered below, and is defended here, on the ground that the president of Anipecu, Ani-ceto Perez, had told the Alfaros that only they, and no one else, could use the lawn mower. We hold however that the movant-defendant did not, as required to sustain a summary judgment, conclusively demonstrate the non-existence of a genuine issue as to the material fact of whether Perez had specifically forbidden the Alfaros to permit another person to use the mower under any circumstances. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966). If the jury concludes that there was in fact no such express command to the contrary, the defendant may be held, under these circumstances, to have impliedly authorized the “employment” of Coto, Jr. and thus to bear responsibility for his negligence. The rule stated in Jacobi v. Claude Nolan, Inc., 122 So.2d 783, 787 788 (Fla. 1st DCA 1960) is directly applicable:

“While we are inclined to agree with the defendant that the proofs did not establish the existence of an express contractual relationship of master and servant between these parties, this is not the only way that the relationship may be created. The relationship may arise by implication by the employment of a sub-servant by a servant to perform duties for the master, where the master has entrusted the servant with a task which cannot be performed by him within a reasonable time, where the business is of such a nature as to require the assistance of others, where there is an emergency, or where the authority to employ and use a subservant may be implied from the nature of the business or the course of trade. In these circumstances, the servant may employ a subservant to assist in the furtherance of the master’s business, even though authority to hire the subser-vant has not been expressly given by the master. And under these conditions the master may be held liable for the tortious acts of the subservant, if they have been committed in the course of the employment.” [emphasis supplied]

Higgins v. Investors Acceptance Co. of Miami, 287 So.2d 724 (Fla. 3d DCA 1974), upon which the appellee relies, is not controlling. In that case, distinguishing Jacobi, we held that a collection agency could not be deemed to have impliedly authorized a bill collector to hire a body guard. The court stated, at 287 So.2d 726:

“The general rule which holds an employer liable under the doctrine of respon-deat superior for torts committed within the real or apparent scope of the employer’s business does not apply in a situation such as exists in this case when an employee hires a helper which his employer neither directed in fact, nor could be considered from the nature of the employment to have authorized or expected the employee to hire.”

In this case, in contrast, the defendant surely could have expected, from the very “nature of the employment” that someone other than the managers — such as a neighborhood boy — would be called upon to mow the lawn. Cf. Peace River Phosphate Mining Co. v. Thomas A. Green, Inc., 102 Fla. 370, 135 So. 828 (1931). Moreover, the Higgins ease involved none of the other factors referred to in Jacobi, any or all of which the trier of fact may find to have existed in this situation, that is,

“[whether] the master ha[d] entrusted the servant with a task which cannot be performed by him within a reasonable time, [whether] the business [was] of such a nature as to require the assistance of others, [and whether] there [was] an emergency . . . ”

See also Goldie v. Dillon, 140 So.2d 81 (Fla. 2d DCA 1962). For these reasons, the summary judgment is reversed and the cause remanded for trial.

Reversed and remanded.

      . See Goldie v. Dillon, 140 So.2d 81 (Fla. 2d DCA 1962).


text:
    PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. INSTITUTE FOR MARINE SCIENCE, INC., et al., Appellees.
    No. 79-185.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 15, 1979.

      Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellant.
    Tobin & Thomson and Michael M. Tobin, Coral Gables, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The attorney’s fees recoverable under Section 627.428, Florida Statutes (1977), from insurance companies by successful insureds and beneficiaries may not be “allowed if such suit was commenced prior to expiration of sixty days after proof of the claim was duly filed with the insurer.” Section 627.428(2). We agree with the trial judge that the filing by the appellee, which was the named beneficiary of a Prudential policy insuring the life of one of its employees, of a completed form entitled “Request Life Insurance Policy Benefits” which had been supplied by Prudential itself, amounted to the “proof of the claim” contemplated by this provision. Because the action below was filed more than sixty days after the “request,” we therefore affirm the partial summary judgment under review which held that the appellee was entitled to fees under the statute, even though Prudential voluntarily paid the face amount of the policy after the suit was filed.

There is nothing in the statutory definition of “proof of the claim” which requires, as Prudential contends, that the beneficiary also submit a death certificate, an autopsy report, or any details of the insured’s death beyond the information called for in the form. See DaRin v. Casualty Co. of America, 41 Mont. 175, 108 P. 649 (1910); cf. 18 Fla.Jur., Insurance, Sections 793-794 (1971), and cases cited. While the insurer is of course entitled to make a reasonable investigation of the claim prior to payment, the very purpose of the sixty day period under Section 627.428(2) is to provide that opportunity. See Shuster v. New York Life Ins. Co., 351 So.2d 62, 65 (Fla. 3d DCA 1977). When, as here, the investigation, however “reasonable,” goes beyond the statutory sixty-day period before suit is filed, the insurance company becomes liable for the payment of fees.

Affirmed.


author: DOWNEY, Chief Judge.

text:
    CITY OF HALLANDALE, a municipal corporation of Florida, and Charles Deyo, Jr., Building Official for the City of Hallandale, Appellants, v. STATE of Florida ex rel. Stefan H. ZACHAR and Dorothy Lape Zachar, his wife, Appellees.
    No. 77-849.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.
    Rehearing Denied June 13, 1979.

      Robert S. Miller, Hallandale, for appellants.
    Fred J. Ward, Hallandale, for appellees.
   DOWNEY, Chief Judge.

Appellants, City of Hallandale and Charles Deyo, Jr., the City Building Official, seek review of a final judgment holding certain municipal ordinances to be invalid and directing the issuance of a peremptory writ of mandamus commanding appellants to forthwith process the plans and specifications filed by appellees for the issuance of a building permit.

Appellees are the owners of certain improved commercial property in the City of Hallandale. They desired to construct an addition to said improvements but their application for a permit was declined because a City Zoning Official advised appellees they were required to submit their plans to an “Impact Review Board” pursuant to Ordinance 993 as amended. Appellees refused to submit their application to the Impact Review Board, and instead filed a petition for writ of mandamus attacking the ordinances in question on grounds of statutory and constitutional invalidity. The trial court heard some brief testimony and ultimately entered the peremptory writ directing the appellants to process appellees’ application.

Appellants raise two points on appeal which warrant discussion:

a) The trial court erred in finding the city ordinances in question were invalid for failure to comply with Chapter 166 of the Florida Statutes when they were enacted.
b) The trial court erred in ruling that the ordinances of the City of Hallandale were unconstitutional because they did not contain reasonable standards or guidelines and are vague, indefinite and uncertain.

In support of the trial court’s findings appellees submit that the ordinances in question were invalid because they violate the provisions of Section 166.041, Florida Statutes (1973). Specifically, appellees contend that 1) the titles of the ordinances in question are defective because they do not contain the subject matter of the ordinance, and 2) the amendatory ordinances are deficient because they do not republish at length the section or subsection of the ordinance which is being amended.

Section 166.041, Florida Statutes (1973), in pertinent part, provides:

“166.041. Procedures for adoption of ordinances and resolutions
“(2) Each ordinance or resolution shall be introduced in writing and shall embrace but one subject and matters properly connected therewith. The subject shall be clearly stated in the title. No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection.”

Subsection 2, which specifies procedural requirements for the enactment of municipal ordinances, actually embodies Article III, § 16, of the Florida Constitution as it pertains to state statutes. Thus, most of the cases which interpret the foregoing language are cases involving the application of Article III, Section 16, to a state statute. In Lipe v. City of Miami, 141 So.2d 738 (Fla.1962), the Supreme Court stated the rule to be:

“[Wjhen the new act as amended is a revision of the entire original act or is an amendment of a section, sections, subsection of a section or paragraph of a subsection of a section, that the new act, section, subsection of a section, or paragraph of a subsection of a section, as the case may be, shall be set forth at length, so that the provisions as amended may be seen and understood in their entirety by the Legislature.” at 741-742.

Lipe was followed by Auto Owners Insurance Company v. Hillsborough County Aviation Authority, 153 So.2d 722 (Fla.1963), wherein the Supreme Court said:

“We have also held that the constitutional provision was designed to inform both the legislature and the public of the nature and extent of proposed changes in existing laws. For this reason it is required that when a specific section or subsection is being amended it should be republished with the proposed amendment so that an examination of the act itself will reflect the changes contemplated, as well as their impact on the amended statute.” at 725. (Emphasis supplied.)

Subsequently, the Supreme Court again treated this question and adopted the wording of the trial judge in Jackson v. Consolidated Government of the City of Jacksonville, 225 So.2d 497 (Fla.1969):

“ ‘The two cases [Lipe and Auto Owners] do not say how much “reference” is required to the original statute for a violation of Article III, § 16 to exist. The explicit terms of the constitutional provision contemplate that in a proper case reenactment of a single paragraph of a sub-section is sufficient. Speaking literally, no paragraph, section or group of sections has meaning without some reference to the act which is being amended. If the constitutional provision were construed to require republication whenever any reference is required it would be unworkable. Every act would have to be restated in its entirety for an amendment to be effective. Needless to say, this is not necessary. The draftsman of an act may assume that members of the Legislature are acquainted with the general purpose of the original act, with its over-all framework, with the manner in which the section fits into that framework, and with the meaning of any defined terms in the legislation.
‘The facts in Lipe and Auto Owners demonstrate what is meant by “reference” and provide a guide for deciding when more than the actual amended language must be republished to comply with the constitutional mandate. In both of those cases the effect of the amended section itself could not be understood without reference to the original act. Under the circumstances, I conclude that when a section, sub-section or paragraph is amended enough of the act being amended must be republished to make the meaning of the provision published intelligible from its language and to insure that no unexpected meaning results from the combination of that language and other language in the Act.’ ” at 507 - 508.

So it seems clear the amendatory ordinance is sufficient if it is complete and intelligible in itself without the necessity of referring to the books to relate it to the amended ordinance in order to ascertain the meaning of the amendment. Auto Owners, etc., supra. From our study of the record, we are satisfied that the three mandatory ordinances involved herein, 1013, 1019 and 1066, meet that test.

Further, we find no fault with the titles to those ordinances, including Ordinance No. 993, the basic ordinance. The title of an act meets constitutional muster “if it fairly gives such notice as will reasonably lead to inquiry into the body thereof.” King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965); Webster v. North Orange Memorial Hospital District, 187 So.2d 37 (Fla.1966). The title need not be an index to the contents. It is not necessary that it delineate in detail the substance of the statute. King Kole, Inc., supra. Our review of the ordinances in question satisfies us there was no violation of the statutory requirements of Section 166.041(2), Florida Statutes (1973).

The thrust of appellees’ second argument is that the ordinance in question, i. e., 993, as amended, is constitutionally defective because it lacks reasonable standards and guidelines and is vague, indefinite and uncertain.

Without question the requirements of the Impact Review Ordinance (993) are onerous requiring a great deal of information to be furnished by the developer. It may also be that some of the provisions may be unreasonable and others indefinite and subject to invalidation by the court. Some examples are:

“(8)(c) Development Experience —The developer shall submit information pertaining to his personal experience in real estate development to include all corporations now or formerly in existence in which the developer exercised substantial control. No developer shall be considered qualified unless he has had past successful experience in real estate development in projects involving housing construction comparable to that proposed for any one year of the development schedule, or can verify an existing relationship through a contract, partnership, joint venture, or other form of real estate syndication with a person or firm possessing such qualifications.
“(d) Financial Capability — The developer shall submit evidence of his present financial position to include existing or proposed credit sources for land acquisition, construction, and permanent financing. No developer shall be approved unless it can be shown that he possesses or has the ability to acquire sufficient funds for the development of the site.”
“(13)
“The names of all property owners (from the most recent tax list) within a reasonable distance of the development site shall be shown on the map or attached thereto.”

If Section (8)(c) precludes anyone from developing property unless he has past experience we have serious questions as to its constitutionality. We would also question the requirements of (8)(d). The last paragraph of Section 13 appears to be indefinite. It raises the question of who -is going to determine what is a reasonable distance for the purpose of including the names of property owners. However, in the present state of the record we are not in a position to determine whether the trial court is correct in holding the entire act invalid as being vague, uncertain and indefinite because the transcript of the hearing demonstrates that he heard no evidence bearing on that question.

Accordingly, we reverse that portion of the final judgment which held the ordinances in question are invalid because they violate Section 166.041, Florida Statutes (1973), and we remand the cause to the trial court to take additional testimony and make specific findings relative to the constitutionality of the Impact Review provisions of Ordinance 993 as amended.

REVERSED AND REMANDED with directions.

ANSTEAD and MOORE, JJ., concur.


author: HERBERT STETTIN, Associate Judge.

text:
    Doris TARVER, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Respondent.
    No. 77-2449.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.

      Charles R. Colbrunn, Orlando, for petitioner.
    Douglas E. Whitney, Dist. VII Legal Counsel, Orlando, for respondent.
   HERBERT STETTIN, Associate Judge.

Petitioner, a mother with four children, has been receiving benefits under the Aid to Families with Dependent Children (AFDC) program since May, 1977. This program derived in part from Title IV-A of the Social Security Act is “designed to provide financial assistance to children who are deprived of the care and support of one or both parents.” Fla.Admin.Code, Chapter IOC-1.41.

Determinations of eligibility are arrived at by using what is termed the “Rateable Reduction”, which is based on the number of persons whose needs are considered. From this figure is subtracted the total net income available to the applicant in order to arrive at a ‘deficit’. This ‘deficit’ will be the grant amount. Fla.Admin.Code, Chapter 10C-1.70. At the time of her original petition, the mother was re-married, and her husband’s only income was monthly social security disability payments in the amount of $39.30. In determining the family’s eligibility for assistance, only the needs of the four children were included to arrive at the proper rateable reduction. The mother’s needs were not considered due to AFDC agency policy in effect which stated:

“The needs of the following persons shall be included in the budget. . . The parent(s) living in the home or if away from home meets the reasons for and conditions of temporary absence. Exceptions : The parent and step parent may choose to be included only when the parent is determined incapacitated.” (Emphasis supplied) AFDC policy found in Manual 009, Section 2, Chapter V.

Apparently this policy excluding remarried spouses is based on the notion that once the mother has remarried the husband has a legal obligation to support her, and therefore the only persons dependent on the mother are her children. In any event, the eventual grant was based on a rateable reduction for four persons.

The assistance payments continued until August 1977. It was at that time the agency ascertained that Petitioner had obtained employment two months before at an estimated monthly wage of $354.02. Since this exceeded the rateable reduction, the agency notified Petitioner of their intention to terminate the payments as of September 1977. Petitioner requested a hearing and the benefits were reinstated, as provided by the rules, during the pendency of the hearing. The hearing was held on September 26, 1977, as a result of which a final order terminating all assistance payments was entered on October 18, 1977. This result was obtained by deducting certain work related expenses from Petitioner’s monthly income, and then including the husband’s disability payments for a resulting figure of $354.59. Since the income figure was greater than the rateable reduction of $190.96, the assistance payments were terminated. The mother now brings this Petition for a Writ of Certiorari to review the final agency action denying her appeal before the agency*

Petitioner now argues not that the agency wrongfully terminated the award on October 18, 1977, but that they improperly excluded her needs in May 1977. Had her needs been included at that time, the increased rateable reduction coupled with concomitant deductions and income disregards, would have entitled her to receive the sought-after benefits even while she was receiving wages from her new job.

While a state can preserve the fiscal integrity of its welfare program by setting the level of benefits to be awarded or by establishing criteria for measuring needs, the question of whether a certain class of persons is eligible to receive assistance is to be determined by reference to federal law. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).

Once a class has been accorded eligibility by federal standards, a state may not impose any restrictions upon that class. Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). And any attempt to impose such restrictions, and thus deny benefits to a federally recognized class, must be struck down as inconsistent with federal standards, and hence invalid under the Supremacy Clause of the United States Constitution, § 8, Cl. 4, Art. 1, King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Townsend v. Swank, supra; Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972).

There do not appear to be cases clearly on point to the issue involved herein. From prior United States Supreme Court cases, however, a test for analyzing concurrent state and federal legislation in this area of welfare assistance can be gleaned. The two-fold test requires a review of the Federal Act to determine if there is any basis for eligibility. Once facial eligibility has been established, it must then be determined whether there exists any congressional authority for a state exclusion. If none can be found, the state standard is in conflict with a federal scheme and therefore invalid under the Supremacy Clause.

Our first duty then, is to determine whether Petitioner qualifies as an “eligible individual” under the Act. 42 U.S.C.A. § 606. This issue seems to be answered in the affirmative by the federal courts in this circuit. In Lopez v. Vowell, 471 F.2d 690 (5th Cir. 1973), the court struck down a Texas provision which excluded married relatives from caretaker eligibility. The court there stated:

“Section 406(b)(1) defines ‘aid to families with dependent children’ as payments to meet the needs of both the dependent children and the caretaker relative with whom the children reside. Nowhere does the statute indicate that the caretaker must be a single individual in order for his or her needs to be included in calculating the amount of the AFDC grant.” (emphasis supplied)

The same result was reached in two other cases, Rodriguez v. Vowell, 472 F.2d 622 (5th Cir. 1973) cert. denied 412 U.S. 944, 93 S.Ct. 2777, 37 L.Ed.2d 404; and Reyna v. Vowell, 470 F.2d 494 (5th Cir. 1972) where the court clearly held that a parent’s needs are to be considered in determining eligibility:

“The plain language of the Social Security Act, its legislative history, and the relevant decision precedent make clear that the needs of the caretaker relative are to be considered in deciding if a family is eligible for an AFDC grant.” and further, “Under federal law, a State’s procedure for measuring the needs of an AFDC family must first take into account the group needs of the family as a whole — i. e., the needs of the caretaker relative as well as the need of all of the dependent children.”

The second phase of our analysis is also resolved by Judge Dyer’s well reasoned opinion in Lopez, supra. He considered the language, legislative history, and purpose of the Act, and noted that the Act not only contemplated the presence of the caretaker’s spouse, but also provided under certain circumstances for aid to the spouse. “This,” he observed, “is cogent evidence that Congress did not authorize the States to limit’eligibility to unmarried caretakers.”

It is clear under federal law that Petitioner in this case is accorded the status of “eligible individual” as that term is used in the Act, and since the Act makes it clear that aid under this program is to be furnished to all eligible individuals, any state legislation in general, and State DFS Manual 009, Section II, Chapter V, in particular, which conflicts with the federal directive is invalid.

We therefore hold that petitioner was entitled to have her needs considered in determining the family’s eligibility for assistance and that, on remand, these needs are to be considered in determining the grant amount.

Petitioner also asserts . other grounds as error which merit brief mention. One of these refers to the denial by the agency of a standard child care deduction as provided by the Florida Administrative Code IOC-1.68, which reads in pertinent part:

“When a child,’parent or relative is employed, the Department recognizes that certain expenses are considered as incidental to earned income and are to be deducted from the balance of gross income following disregards. The employed person may choose to accept standards or provide documentation of actual and reasonable work related expenses/work related child-care costs. . If the employed person (parent or relative) chooses to accept the standard amount for work-related child-care cost, the standard shall be deducted. If the employed person (parent or relative) chooses to document work-related childcare costs, he must assume total responsibility for obtaining and providing the information to the worker.”

Respondent contends that no deduction, standard or otherwise, is available until such time as the applicant can substantiate some actual expenditure for child care. In support of this position they again offer agency policy set forth in DFS Manual 009, Section II, Chapter V, which states:

“No amount will be included for child care until required verification or documentation is received for child care.”

According to the Findings of Facts as stated in the Final Order of the agency, Petitioner’s Brief, Appendix II, the testimony did not indicate whether any child care expenses had actually been incurred, but Petitioner contends that there is no such requirement in section 1.68.. It is clear, however, from the cases cited above, that a state may properly allocate its economic resources by exercising its “undisputed power to set the level of benefits” in order to preserve the fiscal integrity of its welfare programs. See also Parks v. Harden, 504 F.2d 861 (5th Cir. 1974). In this case, then, no error has been shown in requiring actual evidence of child-care expenses.

Accordingly, the Petition for the Writ of Certiorari is granted and the cause is remanded for action consistent with the principles expressed herein.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    Joseph Reynolds GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 78-1169.
    District Court of Appeal of Florida, Second District.
    May 16, 1979.
    . Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Rule 3.230, Florida Rules of Criminal Procedure; Section 38.10, Florida Statutes (1977).

HOBSON, A. C. J., and BOARDMAN and DANAHY, JJ., concur.


text:
    Walter JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1795.
    District Court of Appeal of Florida, Second District.
    May 16, 1979.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer and David A. Davis, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. Section 939.15, Florida Statutes (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

HOBSON, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    PENTHOUSE INTERNATIONAL, LTD., Petitioner, v. Rosa Lee BENTON, Bold Enterprises, Reese Publishing Company, Inc., Harold M. Lambert Studios, Burton McNeely, Harvey Hersh, a/k/a Ben Harvey, d/b/a Harvey Graphics, Respondents.
    No. 79-384.
    District Court of Appeal of Florida, Second District.
    May 16, 1979.
    Peter H. Leavy of Myers, Kaplan, Levin-son, Kenin & Richards, Miami, for petitioner.
    D. Frank Winkles of Winkles & Tromb-ley, Tampa, and Thomas C. MacDonald, Jr. of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for respondents.
   PER CURIAM.

Certiorari denied. See Charlton v. Tennant, 365 So.2d 418 (Fla.2d DCA 1978).

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    Jimmie Lee THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-265.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.
    Jimmie Lee Thornton, appellant, in pro per., Raiford.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS and BERANEK, JJ., concur.

ANSTEAD, J., concurs specially.

ANSTEAD, Judge,

specially concurring.

I agree that the trial court did not err in denying without hearing the appellant’s motion for post-conviction relief. Of the five points presented by the appellant, only one, an allegation of incompetency of counsel, was on an issue that could not have been raised on appeal from appellant’s conviction, and that point did not contain sufficient allegations of incompetency of counsel which would have mandated relief if the allegations were proven. See Barfield v. State, 348 So.2d 621 (Fla. 4th DCA 1977).


author: ROBERT SMITH, Acting Chief Judge.

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Modenia R. DYAR and Sumatra Honey Company, Appellees.
    No. LL-256.
    District Court of Appeal of Florida, First District.
    May 17, 1979.

      Stephen E. Mitchell and Michael L. Gran-ger of Keen, O’Kelley, Field & Ellis, P.A., Tallahassee, for appellant.
    J. Ben Watkins, Apalachicola, for appel-lees.
   ROBERT SMITH, Acting Chief Judge.

Appellee Dyar could reasonably have been found by the trial court to have an insurable interest either because the corrective deed was effective as against someone in the insurer’s position, cf. Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941), or because appellee Dyar had an insurable interest as mortgagor or otherwise. Section 627.405(2), Florida Statutes (1975); Aetna Ins. Co. v. King, 265 So.2d 716 (Fla. 1st DCA 1972). The trial court could also have properly found that appellant is es-topped, by having issued a policy naming the insured as it did, from asserting the forfeiture that would result from denying appellee Sumatra recovery for loss of contents. Appellees’ motion for attorneys’ fees on appeal is GRANTED, the amount to be determined by the trial court.

AFFIRMED.

ERVIN and LARRY G. SMITH, JJ., concur.


author: DANAHY, Judge.

text:
    Lynn M. McCLURE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1335.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Raymond 0. Gross, of Gross & Doherty, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Lynn M. McClure appeals a term of probation imposed upon her following a finding of guilty to four counts of grand larceny. She argues that in the order of probation the trial judge improperly delegated the duty of determining the amount of restitution to the Probation and Parole Commission. We agree and remand for correction of the order of probation.

Mrs. McClure was charged with stealing money from her employer, C. A. Atherton Oil Company. She pleaded no contest to the charges. Thereafter, a sentencing hearing took place at which Mrs. McClure’s attorney argued that his client should be placed on probation, pointing out that nothing would be gained in placing a 48-year old woman in prison and that the likelihood of future criminal activity was slight. Additionally, he made this statement:

As to Atherton Oil Company’s lost funds as a result of her actions, there is currently civil litigation in process to ascertain the amounts therein, and to seek reimbursement of that.

The court was persuaded by this argument and gave Mrs. McClure the choice of a sentence of three years in prison (the maximum sentence was twenty years) or of ten years probation with the condition that:

You will make restitution on a schedule prescribed by your probation officer in the amount as determined by the civil court, when it is determined by the civil court.

Mrs. McClure chose probation. However, the written probation order provided that Mrs. McClure as a condition of probation: “Make full restitution as determined by probation . . . ”

Mrs. McClure appeals, contending that the court unlawfully delegated determination as to the amount of restitution to the Probation and Parole Commission. The probation order could be interpreted to mean that the Probation and Parole Commission or a probation officer was to determine the amount to be repaid, as well as the schedule of repayment. This, of course, would be an unlawful delegation of a responsibility which is exclusively that of the court. Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978). The written order of probation should therefore be corrected to conform to the judge’s oral statements at the hearing.

On the facts of this case it is unnecessary to decide the propriety of predicating the amount of restitution to be paid upon a future judicial determination. Appellant suggested this method to the court and she made no objection to the court then using it to set the amount of restitution. She is the party defendant to the civil action and will have an opportunity to be fully heard in court as to the amount of loss she caused to C. A. Atherton Oil Company. If there was error in the method of determining the amount of restitution, she led the court to it and waived her right to now change her position and raise it here as error. Cf. Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977); Spadaro v. State, 332 So.2d 110 (Fla. 1st DCA 1976); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971).

Accordingly, the cause is remanded for the purpose of correcting the order to conform to the oral statements of the court made upon imposing probation; i. e., to provide that the Probation and Parole Commission prescribe only the schedule of repayment of the amount which is judicially determined.

Reversed and remanded for correction of the order.

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


text:
    MANATEE BAY CORPORATION, a Florida Corporation, Appellant, v. Robert E. WOOD and Diane Bass Wood, Appellees.
    No. 78-1650.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    James M. Wallace, Bradenton, for appellant.
    No appearance for appellees.
   PER CURIAM.

Manatee Bay Corporation appeals a final judgment which dismisses with prejudice appellant’s suit to foreclose a mortgage on the property of appellees Mr. and Mrs. Wood. The judgment also granted relief sought by the Woods by cancelling the mortgage.

The final judgment is ambiguous as to whether it purports to cancel the debt evidenced by a promissory note which underlies the mortgage. We construe the judgment to mean that the underlying debt between the parties is not affected.

The judgment is affirmed as construed.

BOARDMAN, Acting C. J., RYDER and DANAHY, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    The SHELBY MUTUAL INSURANCE CO., Appellant, v. Philip J. LaMARCHE and Bette LaMarche, his wife, and Clearwater Prestige Homes, Inc., Appellees.
    No. 78-1662.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellant.
    Jan G. Halisky of Griffin, Uber & Hali-sky, Clearwater, for appellees Philip J. La-Marche and Bette LaMarche.
    N. S. Gould of Phillips, McFarland, Gould, Wilhelm & Wagstaff, Clearwater, for ap-pellee Clearwater Prestige Homes, Inc.
   BOARDMAN, Acting Chief Judge.

Appellant Shelby Mutual Insurance Company (Shelby) issued a general liability policy to appellee Clearwater Prestige Homes, Inc. (Homes). The policy provided in part:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damage because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
Exclusions
This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
(n) to property damage to the named insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith. .

The following definitions were included in the policy

“bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom;
“completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. “Operations” include materials, parts or equipment furnished in connection therewith.
“named insured’s products” means goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but “named insured’s products” shall not include a vending machine or any property other than such container, rented to or located for use of others but not sold;
“occurrence” means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;
“products hazard” includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others;
“property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. . . .

On April 28,1972, appellees, Philip J. and Bette LaMarche and Homes, entered into a written contract whereby Homes agreed to build a house for the LaMarches for a price of $41,721. The eighth paragraph of that contract provided:

The Contractor guarantees all workmanship and material. This guarantee is in exclusion of and in lieu of all other guarantees or warranties, and liability herein terminates one year from date of delivery, except with regard to the basic structural components of the home on which liability terminates five years from date of delivery. All manufacturers’ warranties shall continue in force and effect according to their terms.

The LaMarches filed suit against Homes alleging breach of its express warranty and guarantee of all workmanship and material and breach of an implied warranty that the finished home was constructed in a good and workmanlike manner. They sought recovery for structural defects and consequent secondary damage resulting from the defects. The LaMarches moved for a summary judgment against Shelby on the sole issue of whether the insurance policy issued by Shelby to Homes provided coverage for the breach of the express and implied warranties. The motion was granted and the trial court entered a partial summary judgment against Shelby finding coverage to exist by virtue of an ambiguity in the policy which was construed in favor of the insured.

The trial court found and appel-lees argue on appeal that exclusion (n) and exclusion (o) when read in conjunction with exclusion (a) create an ambiguity as to coverage. We are aware of the universally accepted principle of law that where there is any ambiguity in an insurance policy or more than one possible construction of its provisions, it is to be construed against the insurer and in favor of the insured. The issue for our consideration is whether these three exclusions are clear and unambiguous.

The caveat or exception in exclusion (a) that “this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner” by its very terms applies only to exclusion (a). We can find no internal ambiguity in this exclusion. When read in concert with the other exclusions we similarly find no ambiguity.

The court in Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla. 3d DCA) cert. denied 303 So.2d 334 (Fla.1974) reached a decision contrary to this result on similar facts. The rationale of the court was that the “everyday meaning [of exclusion (a)] as understood by the ‘man-on-the-street’ ” would afford coverage for the liability assumed by the insured resulting from warranties it makes as to its products or work; that absent an express limitation, coverage provided by exclusion (a) cannot be restricted by exclusions (n) and (o); and that the more specific exclusion (a) governs over the more general exclusions (n) and (o). These statements embody correct statements of law.

Nonetheless we disagree with the result reached in Fontainebleau. First, in our view, the policy read as a whole and the provisions given their express and harmonious meaning and effect would not engender an impression that this insurance was to be a guarantee of an insured’s satisfactory performance of his contractual duties. Second, it is well settled that generally an exclusion does not provide coverage but limits coverage. See 43 Am.Jur.2d Insurance § 1180. Third, whether (a) is more specific than (n) and (o) has no relevance to resolution of the issue presented to us. It was necessary to include the caveat or exception to exclusion (a) for warranties to give substance to the completed operations and products hazards coverage provided by the policy. By definition coverage for these risks arises from a warranty given by the insured. This coverage would be meaningless absent the caveat or exception to exclusion (a). Furthermore, exclusions (n) and (o) limit the completed operations and products . hazard coverage to the extent that property damage to the insureds’ products arising from the products or to the work performed by the insured arising from that work is not included. We are in accord with St. Paul Fire & Marine Ins. Co. v. Coss, 80 Cal.App.3d 888, 145 Cal.Rptr. 836 (1978) which concluded that similar policy provisions were not ambiguous.

In resolving the issue raised on appeal we make no decision as to whether the policy expressly provides coverage for the damage which resulted to appellees’ residence. That question is not before us. We hold only that the exclusions at issue here do not create an ambiguity.

REVERSED and REMANDED for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.

      . Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla. 3d DCA) cert. denied 303 So.2d 334 (Fla.1974) concerned only a warranty that work be performed in a workmanlike manner. The policy in Fontainebleau was quite similar to the policy in the instant case: exclusion (n) in Fontainebleau tracks exclusion (o) in the instant case.


text:
    David William KIROUAC, Appellant, v. STATE of Florida, Appellee.
    No. 78-1774.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

This is an appeal from the partial denial of a motion to correct appellant’s sentence filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We hold that appellant was entitled to credit for the entire period he was committed to the Division of Mental Health for treatment prior to sentencing; we therefore reverse.

Appellant was originally charged with and pled guilty to several charges of involuntary sexual battery. He was found to be a child molester within the purview of Chapter 801, Florida Statutes (1975) and was committed to the Department of Offender Rehabilitation and the Division of Mental Health for treatment on May 26, 1976.

On January 20, 1978 appellant was returned to the trial court and given concurrent sentences of 19 years on each charge; he was not given credit for the time he spent in the State Hospital at Chattahoochee. He subsequently filed the instant motion seeking such credit.

At the hearing on the motion, defense counsel noted that Chapter 801 (the Child Molester Act) had been repealed effective July 1, 1977 by Chapter 77-312, Laws of Florida, which, in effect, transferred the provisions of Chapter 801 to Chapter 917 (the Mentally Disordered Sex Offender Act). Thus, Chapter 917 replaced the provisions of Chapter 801 and became applicable to those in appellant’s position. Chapter 77-312 also added Section 917.218 requiring that credit be given for time served in the mentally disordered sex offender program. The state took the position that because appellant was not placed in the mentally disordered sex offender program initially, he was only entitled to credit from July 1, 1977. The trial court agreed with the state and granted appellant credit only from July 1, 1977.

Appellant is entitled to credit for time served in the mentally disordered sex offender program. Hall v. State, 358 So.2d 891 (Fla. 2d DCA 1978). It is obvious from the legislative history of Chapter 917 that the legislature intended Section 917.218 to apply to those originally committed under the Child Molester Act as well as other mentally disordered sex offenders. It is evident that in repealing Chapter 801 the legislature intended all of the provisions of the revised Chapter 917 to be applicable in place of Chapter 801. Appellant is therefore entitled to credit from the date of his commitment.

Accordingly, the trial court’s order is reversed insofar as it denies appellant credit for the time he spent in the State Hospital under commitment pursuant to Chapter 801 prior to July 1, 1977. The cause is remanded for entry of an order awarding appellant appropriate credit consistent with this opinion.

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