author: PER CURIAM. ERVIN, Judge.

text:
    Wanda S. BAGGETT, Appellant, v. Roland J. BAGGETT, Appellee.
    No. CC-299.
    District Court of Appeal of Florida, First District.
    June 29, 1977.
    Rehearing Denied Aug. 4, 1977.
    Jackson G. Beatty, of Gregory, Towles, Beatty & Hood, Tallahassee, for appellant.
    W. Bradley Munroe, Tallahassee, for ap-pellee.
   PER CURIAM.

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

Accordingly, the judgment is affirmed.

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

ERVIN, J., dissents.

ERVIN, Judge.

I dissent. This is an appeal by the former wife, Wanda S. Baggett, from a judgment in dissolution of marriage awarding $7,500.00 as lump sum alimony to Mrs. Baggett which she complains is not adequate. The amount was payable in 50 monthly installments of $150.00 each. She seeks also an award of a farm in Gadsden County having 87V2 acres and a home on a 2V2 acre tract in Gadsden County where she now resides. The husband lives in a house in Tallahassee in which the parties abided during most of the marriage. The wife’s parents gave to both, while the marriage was in existence, the 2V2 acre tract. The parents also sold to both the 87V2 acre farm for $26,250.00. The parents accepted a note for the amount which was not secured and bore no interest. At the time of the dissolution, $20,000.00 remained outstanding on the obligation.

At the final hearing on February 20, 1976, the husband estimated the Tallahassee home’s value at $24,000.00. The home and lot were subject to a mortgage with a balance owing of $18,761.00. The mortgage secured a loan in the original sum of $20,-000.00 used to build the Gadsden County home. The husband estimated the value of the farm property at $500.00 per acre, or $43,750.00. He stated that he invested $30,-000.00 in materials and labor to build the house on the 2V2 acre tract and estimated its worth at $50,000.00. The husband also owes the wife’s father $2,500.00 for money loaned to make improvements on the Tallahassee home.

The wife was 47 years of age at the time of the dissolution and the husband was 49. When we compare the relative financial positions of the parties, we find that the equities of both in the real property are as follows: (1) As to the home in Gadsden County, paid for at the husband’s expense, $25,000.00 to each party. (2) As to the 87V2 acre tract of land, after deducting the principal amount owed on the mortgage, $11,-700.00 each. (3) As to the home in Tallahassee, subject to the $18,761.00 balance, $2,619.50 each. The wife is living in the home in Gadsden County on which there is no outstanding mortgage, although she is subject to V2 the remainder of the mortgage on the house in Tallahassee as well as V2 the balance on the Gadsden farm property.

The court obviously determined that the wife made a sufficient showing both of her needs and the husband’s ability to provide for those needs in order to justify an award of lump sum alimony, but nevertheless concluded that the award should not include any of the real estate owned jointly by the parties. I am of the opinion that the court may have been confused by what the term “special equity” means. It has a given meaning in one context and an altogether different meaning in another context.

The leading case concerning an award of lump sum alimony based upon special equities is unquestionably Yandell v. Yandell, 39 So.2d 554 (Fla. 1949). The court stated the general rule as follows:

“We are constrained to the view that ordinarily the better practice is to direct periodic payments of permanent alimony and a lump award should be made only in those instances where some special equities might require it or make it advisable; for instance, where the wife may have brought to the marriage, or assisted her husband in accumulating, property and where it is clearly established that the husband has assets sufficient in amount to pay the gross award. State ex rel. Tong v. District Court, etc., 109 Mont. 418, 96 P.2d 918, 921; Martin v. Martin, 195 Ill.App. 32. There may be other situations which might justify or possibly require a lump sum award, but it should never be made unless the husband is in a financial position to make payment of such gross award without endangering or actually impairing his economic status.” 39 So.2d at 556.

The court concluded:

“Of course, where the husband’s financial condition is such as to enable him to respond to a gross allowance of alimony without jeopardy to his business, profession or employment it may be the better solution to grant such allowance when all other equitable considerations justify it and thereby avoid vexatious and possibly endless litigation.” Id. at 556-557.

Clearly there is no requirement in Yan-dell that the wife make only a showing of a contribution to the husband’s acquisition of property during the marriage as a condition precedent to an award of lump sum alimony. The primary thrust of the opinion was that the trial judge should not order such an award if there were any danger of impairment to the husband’s economic status-.

The court below might have considered there was no such contribution made by the wife which would justify an award of the realty to the wife notwithstanding the parties acquired their joint interests in the Gadsden County realty from the wife’s parents. The general rule of course is that no presumption will be indulged in favor of a resulting trust to the wife who has transferred her separate property to the husband as joint tenants. Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971).

A wife’s contributions, however, either financially or through unusual services, are not the only factors to be considered by the court in determining an appropriate award of lump sum alimony. As recognized by this court in Baker v. Baker, 315 So.2d 217 (Fla. 1st DCA 1975), a party may be awarded all or part of an estate by the entireties to the extent that such party establishes (1) special equity, (2) lump sum alimony, or (3) by a prayer for partition as provided in Section 64.041, Florida Statutes (1973).

The courts have also used the term special equities to mean special circumstances, i.e., that lump sum alimony may be awarded where it serves a reasonable purpose such as rehabilitation, or where the financial position of the parties or such circumstances as the duration of the marriage make this type award advantageous to both parties. See Goode v. Goode, 76 So.2d 794 (Fla. 1954); Lindley v. Lindley, 84 So.2d 17 (Fla. 1955); Olsen v. Olsen, 158 So.2d 775 (Fla. 3rd DCA 1963).

Recently in Cann v. Cann, 334 So.2d 325, 328 (Fla. 1st DCA 1976), we distinguished the term “special equities”, i.e., meaning special circumstances to justify such an award, from financial or unusual contributions during the marriage. Observe the following:

“The requirement that lump sum alimony be based upon special equities must not be confused with an award in a dissolution of marriage action to a spouse who has acquired a special equity in property accumulated during the marriage. Such an award is not alimony. (Eakin v. Eakin, Fla. 1958, 99 So.2d 854).” 334 So.2d at 328.

The correct test for an award of lump sum alimony based upon special circumstances was stated by the Fourth District Court of Appeal in Calligarich v. Calligarich, 256 So.2d 60, 61 (Fla. 4th DCA 1971):

“Lump sum alimony is justified only where it serves a reasonable purpose . . The wife’s need and the husband’s ability are still the correct equation to follow. See 10 Fla.Jur., Divorce, § 161; Schultz v. Schultz, Fla.App. 1967, 197 So.2d 310, and Arrington v. Arrington, Fla.App. 1963, 150 So.2d 473.” 256 So .2d at 61.

When we compare the respective positions of the parties, I am of the opinion that the lower court abused its discretion in refusing to award the home in which the wife resides in Gadsden County, in addition to the $7,500.00, as lump sum alimony. The disparity in the parties’ income cannot be ignored. The needs of the wife are apparent. Her annual income is $7,500.00 per year, augmented by the $7,500.00 alimony in periodic payments that will expire in a little more than four years from the date of the dissolution. Her husband’s annual income is $28,000.00, subject to an annual deduction of $1,800.00 for alimony payments. She is obligated to pay her father for her one-half interest in the 874/2 acre tract. There is no showing in this record that because of the filial relationship she will be excused from her responsibility to pay her father the amount she is indebted on the note. She is also responsible for one-half the payments remaining on the mortgage on the Tallahassee home.

It is also important to observe that the judgment of dissolution did not award the wife exclusive possession of the Gadsden County home, even though she was living there at the time of the dissolution. The husband is free to seek partition of his one-half undivided interest at any time. See Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947) and Hoskin v. Hoskin, 329 So.2d 19 (Fla. 3rd DCA 1976). If he did so and partition were ordered, it is questionable whether the wife, due to her meager estate, could raise the funds sufficient to pay the husband’s interest in the property. It is inconceivable from this record that if an additional award were made to the wife of the home in Gadsden County, the husband’s economic status would be seriously impaired. His income would not be affected at all and he would still retain his one-half undivided interest in the farm as well as in the home in Tallahassee.

I fail to see any substantial distinction between the facts in this case and those in the recently decided opinion of this court in Goldman v. Goldman, 333 So.2d 120 (Fla. 1st DCA 1976), where this court directed the trial court to award to the wife lump sum alimony. The husband had a net worth of $93,000.00 and yearly income of $20,000.00 and the wife had a net worth of $47,200.00. The award was in addition to exclusive possession of the marital home which the parties owned by an estate by the entirety. The husband moreover was required to pay the monthly mortgage payments, taxes and insurance on the home.

The husband here has certainly obtained a windfall in receiving a one-half undivided interest in the Gadsden County property, which he unquestionably would not have obtained had it not been for the marital relationship. I would therefore reverse and remand this cause to the trial court with directions that it modify its final judgment of dissolution by awarding to the wife the Gadsden County home.

      . The court’s final judgment entered on May 24, 1976, states in part:
      “The financial affidavits filed before the Court, and the testimony revealed that the husband has an income slightly in excess of $28,000.00 per year. He is a career employee with the Florida Department of Transportation, and his average weekly wage, after taxes, is approximately $444.00. The wife, who was a homemaker for the husband until 7 years ago, has an average weekly wage, after taxes, of approximately $122.00. The only retirement program the wife has to look forward to is Social Security. The husband is an 26 year employee of the State of Florida, has substantial sums in the State Retirement System, and can retire in approximately 4 years (after 30 years of continuous service) on a substantial retirement income. In other words, during the years when the husband was becoming a valuable, high paid employee of the State of Florida, the wife was home attending to the needs of children and making a home for the husband. Under these circumstances the court is of the opinion that the equities require lump sum alimony.”
      Notwithstanding its award of $7,500.00 as lump sum alimony, the court concluded, “[t]he wife has failed to establish that she has any special equity in any of the real estate owned by the parties as tenants by the entireties.” The court rejected the claim of the wife in the two pieces of real property in Gadsden County and held that as to all realty jointly owned during the marriage, no disposition would be made, and that the parties henceforth owned such property as tenants in common, each being liable for any obligations which might be owing, including real estate taxes.

      . The effect of Steinhauer may have been blunted by the recent opinion of the Florida Supreme Court in Ball v. Ball, 335 So.2d 5 (Fla. 1976), in which it was held that a special equity is created in favor of a spouse upon an unre-butted showing that all the consideration of the property held as tenants by the entireties was supplied by that spouse from a source clearly unconnected with the marital relationship. In Ball, the wife was held to be entitled to a special interest in the property because the interest had originally been obtained from the estate of her late mother. Ball, however, has prospective application only to actions instituted after the date of its opinion and does not apply to this cause.

      . Parenthetically I am of the belief, because of the resulting confusion by the manner of its use, it would be far better to either eliminate the use of the term altogether or to amplify its use by reference to specific factors, the presence or absence of which would constitute justification for the allowance or denial of the award.

      . This case clearly does not involve the same situation as confronted the Supreme Court in Cummings v. Cummings, 330 So.2d 134 (Fla. 1976), where the court held it was error to award the marital home to the wife as lump sum alimony since both parties had substantially the same income, and in the absence of any showing of necessity on the wife’s part.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    STATE ex rel. Barry KEY, Relator, v. Honorable Harry W. FOGLE, Circuit Judge, Sixth Judicial Circuit of the State of Florida in and for Pinellas County, Respondent.
    No. 77-647.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    Rehearing Denied Aug. 8, 1977.
    Raymond 0. Gross of Gross & Doherty, P.A., Clearwater, for relator.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for respondent.
   ON SUGGESTION FOR PROHIBITION

GRIMES, Judge.

The assistant state attorney requested the relator to appear at an investigation which dealt with a charge against Michael Karichkowsky for breaking and entering with intent to commit arson. Relator went to the investigation and informed the assistant state attorney that he would not testify unless he was subpoenaed and given transactional immunity. A subpoena was issued and served upon him. Relator was then asked if he owned the structure that had been burglarized; if he knew Michael Karichkowsky; and if he had given Karich-kowsky permission to enter the structure. Before answering, relator declared that he was answering only because he had immunity. He then admitted owning the structure, knowing Michael Karichkowsky and having given a key to the structure to Kar-ichkowsky.

After obtaining this response, the assistant state attorney took a recess and left the room. Upon returning, he advised the relator that he was being released from his subpoena and that anything further that he said could and would be used against him. Relator then refused to answer any further questions and the interrogation ceased.

Subsequently, an information was filed which charged the relator with soliciting Michael Karichkowsky to commit arson. Relator filed a motion to dismiss contending that he had received transactional immunity pursuant to Section 914.04, Florida Statutes (1975). The motion was denied. The court reasoned that the relator was entitled to use immunity rather than transactional immunity because the testimony related to “an independent criminal transaction which was not in the State Attorney’s knowledge at the time of questioning.” Relator has filed this suggestion to prohibit his trial on grounds of transactional immunity. If relator has transactional immunity, prohibition is a proper remedy to preclude further prosecution for the crime. State ex rel Johnson v. MacMillan, 194 So.2d 627 (Fla. 2d DCA 1967); State ex rel. Lurie v. Rosier, 226 So.2d 825 (Fla. 4th DCA 1969).

In State ex rel. Hugh v. Popper, 287 So.2d 282 (Fla.1973), the Supreme Court interpreted our immunity statute as follows:

“Petitioners vigorously urge that F.S. § 914.04, F.S.A. provides for transactional immunity, and that therefore they may not be prosecuted for ‘any transaction, matter, or thing concerning which’ they testified pursuant to the subpoenas. In this, they are correct. However, the statute additionally provides a use immunity, specifying that ‘no testimony so given or produced shall be received against him upon any criminal investigation or proceeding’. At first glance, the use immunity provision would seem to be superfluous in view of the provisions for transactional immunity. The reason for the provision becomes evident, however, if one considers the situation of a person testifying as to one criminal transaction who, in the course of his testimony, discloses a fact, innocent in and of itself, which links him to an independent and separate criminal transaction; in such a situation, the transactional immunity would apply as to the first transaction, but not to the second criminal transaction.”

The court went on to conclude that if the petitioners’ testimony given under subpoena concerned the same “transaction, matter or thing” for which they were now being prosecuted, the indictments must be dismissed. In an earlier case involving the interpretation of the statutory words “transaction, matter or thing,” our Supreme Court held that the compelled testimony “need but be relevant to and have substantial connection with the subject of inquiry to bestow complete immunity from any offense revealed.” State v. Kelly, 71 So.2d 887 (Fla.1954).

There is no doubt that the questioning of relator was prompted by the investigation of the charge against Michael Kar-ichkowsky. The charge now pending against the relator is not precisely the same. However, both charges pertain to the circumstances leading up to the entering of the subject structure with the intent to burn it. The charges can hardly be said to be unrelated. We believe that the relator's compelled testimony related to the “transaction, matter or thing” for which he is now charged. Whether or not the relator was a suspect before the interrogation began is irrelevant. The relator is entitled to transactional immunity.

Accordingly, the writ of prohibition is hereby issued with directions that the relator be discharged from prosecution in this case.

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

      . This case involved an earlier immunity statute but the same language which is pertinent to our discussion has been carried forward into the present statute.


author: ERVIN, Judge.

text:
    Judith WITGENSTEIN and Susan Still, Petitioners, v. The SCHOOL BOARD OF LEON COUNTY, Florida, a body corporate, Respondent.
    No. CC-17.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied Aug. 4, 1977.

      Richard H. Frank, Frank & Meyer, Tampa, for petitioners.
    C. Graham Carothers, Michael P. Dodson, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for respondent.
   ERVIN, Judge.

This is a petition for writ of certiorari to review an order of the School Board of Leon County declining to accord administrative hearings to petitioners which we treat as a petition for review. Petitioners were employed by the Board pursuant to annual contracts of employment for the school years of 1972-1973, 1973-1974 and 1974r-1975. Witgenstein was notified by letter dated March 21, 1975, from her principal that her contract would not be renewed for an additional year; Still by letter dated March 23, 1975. Petitioners were informed that the decision not to recommend them for further employment was based upon their principals’ intention to “obtain the services of another person whose qualifications would better meet the needs of the District.”

Witgenstein then filed a grievance which alleged that both her evaluation and the manner in which it was effectuated were not carried out in compliance with evaluation procedure. Witgenstein’s grievance was processed through each level of the grievance procedure and was finally denied by the Board on June 24, 1975. Witgen-stein had complained that she was not properly evaluated or apprised of purported deficiencies in her teaching performance and therefore she should be accorded another year of employment during which time she would be properly evaluated. Unlike Wit-genstein, Still chose not to file a grievance but instead sought assistance from her bargaining representative, the Leon County Classroom Teacher’s Association, which appeared with her before the School Board and objected to the manner in which Still was evaluated and requested that she be accorded another year of employment. Still was also denied relief.

Each petitioner then brought action in the Leon County Circuit Court against their respective principals, the superintendent and the Board. Each action was based upon negligence and breach of contract, seeking damages and a judgment reinstating them to another year of employment during which time they would be properly evaluated. The Board moved to dismiss the complaints on the ground that the plaintiffs sought review of final agency action for which review lies in the First District Court of Appeal, or if petitioners had not received full agency action, they had failed to exhaust their administrative remedies. The court granted the motion to dismiss Wit-genstein’s complaint upon the failure to exhaust her administrative remedies, or alternatively, if she pursued a grievance procedure, review would properly lie in the appeals court. Still’s action was also dismissed by the circuit court for failure to exhaust her administrative remedies.

Each petitioner then filed a petition with the Board requesting that she be re-employed for an additional school year due to the supervisory staff’s failure to evaluate them properly in accordance with existing evaluation policy. The Board’s denial of relief was based upon three separate grounds: (1) That it lacked the jurisdiction to grant the relief requested since it was the prerogative of the superintendent — not the Board — to nominate members of the instructional staff and that it could hire teachers upon its own initiative only (a) if it rejected for good cause three nominations made by the superintendent for a particular position, or (b) if the superintendent failed to make his nomination within six weeks before the close of the post-school conference. (2) That having taken judicial notice of its rules, the Board found it had not adopted any rule pertaining to an evaluation policy of instructional staff; therefore the policy never having been adopted, it “never became a part of Petitioners’ contracts.” (3) That since petitioners had already grieved their complaints before the Board, they received final agency action. Petitioners then appealed the Board’s order, seeking an evidentiary hearing on the allegations contained in their petitions.

We hold, for the reasons stated infra, that if there exist disputed issues of material facts as to whether the assessment procedure set forth under Section 231.29, Florida Statutes (1975) was not followed, petitioners are then entitled to an evidentiary hearing as provided by Section 120.57(1), Florida Statutes (Supp.1976). If petitioners, under the circumstances outlined, are entitled to an evidentiary hearing on the merits of their petitions pursuant to Section 120.57(1), then we must necessarily hold that the District School Board is an agency which is subject to the operation of the Administrative Procedure Act.

Section 120.52(l)(c) states in part:

“(1) ‘Agency’ means:
* sf: * * :{«
(c) Each other unit of government in the state, including counties and municipalities to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.”

Since a local school district is not defined under Section 120.52(l)(c) as an agency, it is essential to look elsewhere to determine whether it is subject to the operation of the Act. Section 120.53(l)(d), pertaining to the adoption of rules of the scheduling of meetings, hearings and workshops, etc., provides in part:

“The agenda for a special meeting of a district school board under authority of S. 230.16 shall be prepared upon the calling of the meeting, but not less than 48 hours prior to such meeting.”

Section 120.54(l)(a), relating to the adoption procedures of an agency’s rules, sets forth the procedure relating to notice of intent by an educational unit to adopt, amend or repeal any rule not described in subsection (8) of Section 120.54. It was obviously the legislative intent to include local school districts within the operation of Chapter 120. This conclusion is also supported by reference to judicial authorities.

Prior to the revision of the A.P.A, effective January 1, 1975, the Supreme Court in Board of Public Instruction v. State ex rel. Allen, 219 So.2d 430 (Fla.1969), specifically held that a county school board is an agency within the purview of Section 120.09, Florida Statutes (1967). See also Canney v. Board of Public Instruction of Alachua Co., 222 So.2d 803, 804 (Fla. 1st DCA 1969), where we held that “a county school board is a state agency within the contemplation of Chapter 120, ... for the purpose of reviewing the final administrative quasi-judicial order.” In the later case of Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260, 263 (Fla.1973), the Supreme Court stated that the legislature had delegated via the A.P.A. quasi-judicial powers to school boards. Finally in School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974), the court held that a school teacher who had formerly been placed on continuing contract and was later placed on annual contract had a right to exhaust her administrative remedies by obtaining the hearing required by Section 120.22, Florida Statutes (1973).

There is no statutory or judicial authority which suggests that a school superintendent is an agency subject to the provisions of the A.P.A. The conclusion, however, is obvious that the A.P.A. fully applies to district school boards.

It should be observed that petitioners’ contracts were subject to “any and all laws, all lawful rules, regulations, or policies now existing or hereinafter enacted.” (Emphasis supplied.) Attached to both petitioners’ complaints were evaluation forms in which it was stated that the principal was to be responsible for the evaluation of each teacher in Leon County and that an evaluation would be placed in the teacher’s personnel file by April 1 of the contract year. The petitioners alleged that the forms demonstrated that there was in existence an established “School Board policy regarding the evaluation of instructional personnel.”

The forms provide that each teacher will have at least one observation for evaluation purposes occurring before January 31 of the school year and that after any formal or informal observation for evaluation purposes the evaluator will provide feedback to the teacher. They also provide that an evaluation conference will occur with the evaluator before the evaluation is signed. Both petitioners claimed that they had not been properly or fairly evaluated by their principals. Both petitioners claimed that they had never been warned or apprised by their principals that their teaching performance was deemed deficient. As a result, the petitioners state that they were never accorded an opportunity to correct those areas which their principals may have considered inadequate.

Section 231.29, Florida Statutes (1975), requires that the superintendent shall establish procedures for assessing the performance of the duties and responsibilities of all instructional personnel employed in his district. The principal also has the responsibility to make the assessment of the individual and report it to the superintendent and the school board for the purpose of reviewing continuing contract. Additionally, Section 231.29 provides in part:

“(d) Prior to preparing the written report of assessment, each individual shall be informed of the criteria and procedure to be used.
(e) The written report of assessment for each individual shall be shown to him and discussed by the person responsible for preparing the report. . . . ” (Emphasis added.)

Petitioners contend that their principals or the persons directly responsible for their supervision failed to follow the above statutory procedure by not warning them that their teaching performance was deemed deficient. These charges, if true, would constitute a violation by the Board of the statutory requirement that policy be adopted into rules and that the rules be published. Cf. Sections 120.52(14) and 120.55 and Straughn v. O’Riordan, 338 So.2d 832 (Fla. 1976).

The Board denies that there was any breach of petitioners’ employment contracts because, having taken judicial notice of its rules and regulations, it knew that it had no policy on evaluation such as that referred to in the petition. Consequently the Board concludes “any failure by board employees to evaluate either Still or Witgenstein according to the alleged policy could not be a breach of the contracts as claimed because the purported policy, having never been adopted by the board, never became a part of petitioners’ contracts.”

If the Board, however, was aware of an evaluation policy which had been established by the superintendent, it was the Board’s duty as the responsible agency to “[a]dopt rules of practice setting forth the nature and requirements of all formal and informal procedures, . . . Section 120.53(b). Moreover a rule is defined by Section 120.52(14) as an “agency statement of general applicability that . . . prescribes law or policy . . . and includes any form which imposes any requirement . .” Additionally, pursuant to Section 230.22, the Board — not the superintendent — is authorized to adopt appropriate regulations. The superintendent may only recommend the adoption of appropriate regulations to the Board. Even assuming arguendo it had no responsibility to adopt an evaluation procedure initially established by the superintendent, the Board still had a duty as the responsible agency under the A.P.A., if disputed issues of material facts were involved, to accord a hearing to petitioners on a policy procedure which allegedly was not carried out by the supervisory staff in a manner consistent either with Section 231.29 or the superintendent’s printed evaluation form.

Nor may the Board disavow any responsibility in the hiring of petitioners by claiming, as they have, that the instructional staff may be employed only upon the nomination of the teacher by the superintendent of schools, citing Section 230.-23(5)(c) and Section 230.33(7)(d). The Board concludes it has authority to hire teachers without the superintendent’s nomination only if (1) the Board has rejected for good cause the nominations made by the superintendent for a particular position, or (2) the superintendent has failed to make his nomination within six weeks before the close of the post-school conference.

The Board, however, may return to annual contract members of the instructional staff. See Section 230.23(5)(g). Additionally, the ultimate responsibility for the decision to employ or not to employ a teacher rests with the District School Board, not with the superintendent. We so recognized in School Board of Leon County v. Goodson, 335 So.2d 308 (Fla. 1st DCA 1976).

Finally, having determined that the Board is an agency and therefore subject to the operation of Chapter 120, we consider the denial of petitioners’ “grievance” complaints can hardly be labeled — as the Board has done — final agency action. No order was ever entered by the Board, as required by Section 120.59, specifically setting forth findings of fact and conclusions of law.

Section 120.68(8), Florida Statutes (Supp. 1976), permits this court to remand the case for further agency action if “ . . . [we find] that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow a prescribed procedure. Failure of any agency to comply with Section 120.53 shall be presumed to be a material error in procedure.” As previously observed, Section 120.53(l)(b) requires the agency to adopt rules of practice setting forth the nature and requirements of all formal and informal procedures. By the Board’s own admission this was not done. Accordingly, having determined that the Board is an agency as defined by Chapter 120, we grant the petition for review and remand this cause to the School Board of Leon County for the following purposes:

1. The Board shall adopt rules of practice relating to the assessment of all instructional, administrative and supervisory personnel within its district in accordance with the procedure set forth by Section 231.29.

2. If there is no disputed issue of a material fact as to whether the assessment procedure provided in Section 231.29 was not followed, then a) if no assessment of petitioners’ performance was made, it shall be the responsibility of the persons previously having direct supervision of petitioners to provide the equivalent of an assessment, and the written report of the assessment shall be shown to petitioners and discussed by the appropriate persons responsible for preparing the report, b) If an assessment was made, but the written report was not furnished to petitioners, the report shall be shown to petitioners and also discussed by the appropriate supervisors. In both instances petitioners shall be allowed the right to refute in writing any adverse criticism stated in such reports.

3. If there is a disputed issue of a material fact as to whether petitioners have been appropriately assessed in accordance with the statute, then the Board shall hold a hearing pursuant to the procedure set forth in Section 120.57(1), Florida Statutes (Supp.1976), and the appropriate persons responsible for preparing the reports shall give testimony, and be subject to cross-examination, on the question of whether the statutory criteria set forth in Section 231.29 were followed.

4. The Board shall enter an order setting forth appropriate findings of fact and conclusions of law as required by Section 120.59.

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

      . Paragraphs nine and ten of each petitioner’s contract provided:
      “9. It is expressly understood and agreed by and between the parties hereto that neither the Teacher nor the school board owes any further contractual obligation to the other after June 13, 1975. The Teacher understands that unless and until she shall receive a continuing contract under and by virtue of the provisions of Section 231.36, Florida Statutes, she shall have probationary status and no legal cause shall be required of the school board in the event that the Teacher is not re-employed by the school board after June 13, 1975.
      10. This contract shall at all times be subject to any and all laws, and all lawful rules, regulations, or policies now existing or hereinafter enacted.”

      . All further references to the Administrative Procedure Act, if not dated, will refer to the amendments which went into effect January 1, 1975.

      . The statute (later replaced by § 120.57, Florida Statutes (Supp.1974)) provided:
      “Any party’s legal rights, duties . . . shall be determined only upon public hearing by an agency unless the right to public hearing is waived by the affected party, or unless otherwise provided by law.”

      . Petitioners claim that the Board, by its prior inconsistent actions, has rendered it incapable of rendering a fair and impartial decision, and that a hearing officer from the Department of Administration should be appointed to conduct the proceeding. The fact that an agency has taken an adverse position to an applicant’s petition does not disqualify it “in the absence of a showing that [it] is not ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” Hortonville Dist. v. Hortonville Ed. Asso., 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1, 9 (1976).


author: BOYER, Chief Judge. MILLS, Judge,

text:
    Sara DOUGLAS and Judith Douglas, Appellants, v. Arneda EIRIKSSON, Appellee.
    No. CC-409.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied Aug. 4, 1977.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    J. LaDon Dewrell of Dewrell & Kessler, Fort Walton Beach, for appellee.
   BOYER, Chief Judge.

The issue raised by this appeal is whether the trial court erred in denying the Doug-lases’ motion to dismiss Mrs. Eiriksson’s case for lack of prosecution. The motion was based on Fla.R.Civ.P. 1.420(e) which provides:

“All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion.”

Mrs. Eiriksson filed her complaint on September 26, 1973, alleging that she was injured in an automobile accident that occurred some three years earlier. The Doug-lases filed their answer, various depositions were taken, and Mrs. Eiriksson filed her answer to an interrogatory asking for a list of expenses. Over one year later, the Douglases filed their motion to dismiss for lack of prosecution which the trial court denied after a hearing. A jury trial resulted in a verdict and final judgment in favor of Mrs. Eiriksson.

A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion. Eli Einbinder, Inc. v. Miami Crystal Ice Company, 317 So.2d 126 (Fla. 3d DCA 1975). Just as there is a strong presumption of correctness in favor of an order of a trial court relative to a motion to set aside a default (Brown v. Vasiliades, 344 So.2d 1325 (Fla. 1st DCA 1977)) there is a similar presumption of correctness applicable to the granting or denial of a motion to dismiss for lack of prosecution. Eli Einbinder, Inc. v. Miami Crystal Ice Company, supra. Sub judice, the Douglases have not overcome the presumption of correctness in favor of the action of the trial judge. Physical disability has been found to justify a failure to bring a case to trial, whether the disability occurs to the plaintiff (Chrysler Leasing Corp. v. Passacantilli, 259 So.2d 1 (Fla.1972)) or to plaintiffs attorney. (Eli Einbinder, Inc. v. Miami Crystal Ice Company, supra.)

We have considered the points raised by Mrs. Eiriksson in her cross-assignments of error and have found them to be without merit.

Accordingly, the final judgment is

AFFIRMED.

ERVIN, J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent.

The record shows that Mrs. Eiriksson did not prosecute her case for more than one year prior to the filing of the motion to dismiss. She contends, however, that she had good cause for her failure to prosecute. Her reasons were:

“1. The Plaintiff has since August, 1974 experienced continued medical problems resulting from injuries sustained in the accident and has undergone mylogram (sic) examination, has been hospitalized in Baptist Hospital in Pensacola, Florida in November, 1974, and is still undergoing treatment by Dr. Gerald E. Belue, of Valparaiso, Florida. That Dr. Belue recently referred her to Dr. Spivey, and orthopedic specialist in Fort Walton Beach.
2. That the nature and extent of her medical disability has not been determined and the cause is, therefore, not ready for trial.
3. Further, Plaintiffs ability to obtain medical treatment is severely impaired by her financial condition and failure on her part to tender payment for her medical expenses. Plaintiff is employed as a nurse and is the sole support of herself and three minor sons.”

The reasons given by Mrs. Eiriksson do not constitute good cause. The hospitalization of unstated duration in November 1974 occurred ten months before the motion to dismiss was filed. Four years and eleven months after the accident in which she was injured, Mrs. Eiriksson is still receiving medical treatment. She gives no reason why treatment is continuing nor when it might terminate. Her physicians are unable to find out what is wrong with her and whether she has a disability. She makes no showing, however, that her physicians will be able to do this at any future date. Mrs. Eiriksson, a nurse, contends her ability to obtain medical treatment is impaired by her financial condition. She does not state what her financial condition is nor that physicians refuse to treat her because of her inability to pay them. Mrs. Eiriksson does not state when or if her financial condition will improve to the extent that she can obtain medical treatment. In fact, Mrs. Eiriksson contradicts herself when she states that she is still receiving medical treatment and immediately says her ability to obtain medical treatment is severely impaired by her financial condition.

Where good cause is not shown why an action should remain pending, it should be dismissed. Koppers Company, Inc. v. Victoire Development Corporation, 284 So.2d 193 (Fla.1973).

I would reverse and remand for dismissal by the trial court.


author: ERVIN, Judge. BOYER, Chief Judge,

text:
    XYO QUIP, INC., Appellant, v. James H. COSTEIRA et al., Appellees.
    No. DD-6.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied Aug. 4, 1977.
    George M. McClure, Martz & McClure, St. Augustine, for appellant.
    Olen W. Meredith, St. Augustine, for ap-pellee.
   ERVIN, Judge.

This is an appeal from a jury verdict in favor of the defendants below, owners of the Lion Motel in St. Johns County. XYO Quip, Inc. argues error in failing to direct a verdict in its favor and we agree.

XYO Quip, Inc. is a large Ohio leasing firm. Along with its sister company, XYO Med, Inc., XYO Quip rents anything from airplanes to color televisions to medical equipment.

Employees of H. & R. Leasing, Inc., a Florida corporation, contacted the motel owners concerning the lease of color televisions for their business. The motel owners agreed, and a lease was entered into with XYO Quip as lessor. The supplier of the equipment was H. & R. Service. The lease provided for 60 monthly rental payments of $141.96 to XYO Quip, Inc., and the terms provided, “lessee, at its expense shall keep the equipment in good repair and furnish all parts, mechanisms and devices required therefore.” A separate service agreement was entered into with H. & R. Service. Servicing and theft insurance would be provided for 60 months on the 21 televisions for a total of $44.10 per month. It is clear the motel owners dealt only with H. & R. Leasing, and H. & R. Service was to supply the televisions, theft insurance and service. XYO Quip, Inc. only financed the purchase of the television sets. There was no evidence at trial concerning the relationship between H. & R. Leasing, H. & R. Service and XYO Quip.

After eight months, when the motel owners had failed to receive any servicing of the televisions, they refused to make any further payments to XYO Quip, Inc. Lawrence Bischoff, credit officer for XYO Quip, testified the motel owners made demand upon him for service. On behalf of XYO Quip, he attempted to secure other service arrangements, but testified he was unable to do so. The motel owners then tendered their television sets to Bischoff in return for a complete release. This was declined.

The motel owners made no payments on the contract after August 20, 1974 and are still in possession of the television sets. As provided for in the leasing agreement, XYO Quip accelerated the payments and declared the lease in default. Suit was then filed for the remaining $7,216.90 due on the contract.

The motel owners filed a third party complaint against H. & R. Leasing and default was entered when no appearance was made. The motel owners further defended by making a general denial to the complaint and raised by counterclaim and affirmative defenses, in part, an agency relationship between H. & R. Leasing and XYO Quip. This allegation was struck by the trial judge. Therefore the only issues before the jury were the existence of the contract, the breach by the motel owners and subsequent damages to the lessor XYO Quip.

At trial, the above facts were undisputed. Clearly, from such evidence and any reasonable inferences, the jury could not lawfully have returned the verdict for the motel owners. Morgan v. Collier County Motors, Inc., 193 So.2d 35 (Fla.App.1966); Smith v. Peninsular Insurance Company, 181 So.2d 212 (Fla. 1st DCA 1965).

The motel owners argue, through their counsel, on appeal there was a fact issue in dispute — the question of whether the contract was entered into between XYO Quip, Inc. and the motel owners. The lease reads, “lessor is XYO Quip, Inc. or XYO Med, Inc.” According to the owners, the identity of the lessor was a material issue of fact that could only be determined by the jury. The argument is without substance. Lawrence Bischoff testified he was an officer of XYO Quip and that the lease agreement was between the Lion Motel and XYO Quip, Inc. Further, the lease states, “lessor is XYO Quip, Inc. or XYO Med, Inc. as determined by Lessor.” No evidence was introduced that XYO Quip, Inc. was not the proper party to the suit. This is not a material disputed issue requiring submission to a jury. Black v. Heininger, 163 So.2d 3 (Fla. 2nd DCA 1964).

The allegations of agency between H. & R. Leasing and XYO Quip, Inc. having been struck from the motel owners’ pleadings, that question could not have been before the jury. Since the correctness of the order striking those defenses is not before this court on cross-appeal, and has not been argued or briefed, we may not consider any agency relationship between the companies.

Having determined the trial judge’s denial of the motion for directed verdict was error, we reverse and remand for entry of judgment for XYO Quip, Inc. in the amount of $7,260.90 plus costs and interest.

MILLS, J., concurs.

BOYER, C. J., dissenting.

BOYER, Chief Judge,

dissenting.

I respectfully dissent. It is axiomatic that the findings of a jury are clothed with a presumption of correctness. That presumption is strengthened when a trial judge reviews the evidence and denies a motion for a directed verdict and again denies a motion for a new trial.

The complaint filed by appellant is for damages based upon an alleged lease agreement between the appellant and appellees. By their answer the defendants specifically denied the existence of any lease between themselves and appellant. They also raised as an affirmative defense, mitigations of damages.

The instruments relied upon by appellant are classic examples of calculated fraud, framed and phrased to mislead. At the top appears the words “This is a Non-Cancela-ble Lease”. Beneath that caption is typed “Lion Motel” as lessee and “H & R Service”, which any reasonable person would anticipate and expect to be the lessor. Two-thirds way down the page appears the words “Lessor is XYOquip Inc. or XYOmed Inc.” Another document bearing at the top the same legend “This is a Non-Cancelable Lease” turns out to be, not a lease but a guaranty. Again, the names which are typed on the document are Lion Motel and H & R Service. A reading of the transcript of the testimony adduced at the trial reveals that there was testimony on behalf of appellees wherein they flatly denied that they had any contract, lease or otherwise, with XYO Quip, Inc. That evidence was admitted without objection. Appellees insisted that they dealt only with H & R Service and XYO Quip repeatedly and categorically denied any agency relationship between XYO Quip and H & R. The evidence revealed that XYO Quip or XYOmed, or both, sent large quantities of their lease documents to H & R Service for the latter’s use in solicitation.

The “lease” is so ambiguous as to who in fact the lessor is that its mere introduction certainly is not self-proving. The “guaranty” is no better. The verbal evidence is little more convincing. The jury might well have determined, as was its prerogative, that the plaintiff in the trial court, XYO Quip, Inc., was not proved to be the lessor. In such an instance it certainly would not be entitled to damages.

At no place does the record clearly reveal the extent of appellant’s claimed damages, which was its burden and responsibility at trial. On the other hand there is evidence, adduced by appellees, from whence the jury could have reasonably found that appellant had an opportunity to mitigate damages and failed to do so.

The jury obviously found that appellant, who was plaintiff in the trial court, failed to carry its burden of proof and the learned trial judge agreed. It is not the prerogative of this Court to substitute its judgment for either.

The jury has spoken. I would affirm.


author: PER CURIAM.

text:
    Gabriele Louise BURGESS, Appellant, v. Donnie Ray BURGESS, Appellee.
    No. DD-322.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      John H. French, Jr., Tallahassee, for appellant.
    Philip S. Parsons and Howell L. Ferguson, MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellee.
   PER CURIAM.

The learned trial judge, after hearing, found that the interests of the children of the parties will best be served by awarding their custody to the paternal grandparents. The polestar for guidance in custody proceedings is the best interests of the children. (Brust v. Brust, 266 So.2d 400 (Fla. 1st DCA 1972)) Custody orders of a trial court reach this Court clothed with a strong presumption of correctness. (Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975)

AFFIRMED.

BOYER, C. J., and RAWLS and MASON, ERNEST E. (Ret.) Associate Judge, concur.


text:
    Jeff Davis HINTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1614.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Defendant, Jeff Davis Hinton, was charged by information with one count of aggravated battery upon his brother, Carl Hinton, with use of a hatchet. The charge was reduced to aggravated assault. Defendant was tried by jury, found guilty, convicted and sentenced to five years imprisonment. We note that Carl was unavailable for trial since he died from unspecified causes not related to this incident.

The crucial issue at trial was whether the defendant was the assailant, or whether his brother, Carl, was the assailant. During the redirect examination of the investigating officer the prosecutor asked the following question:

Q. In response to a question by [defense] counsel, you indicated that your arrest was predicated upon an identification of Mr. Hinton [the defendant] as the assailant by two witnesses?
A. And the victim, yes, sir. Excuse me — and Carl Hinton [the defendant’s brother].
Q. Carl Hinton told you that his assailant was the defendant, his brother, Jeff Hinton?
A. Yes, he did.

Defense counsel objected on hearsay grounds to the testimony that the victim (now deceased) had said that the defendant was his assailant. Defendant also moved for a curative instruction, to strike and for a mistrial. The motions were denied, but the prosecutor was told not to pursue that questioning further. It appears that the trial judge was of the opinion that the defense had opened the door to this inquiry on cross-examination.

On appeal, defendant contends that the court erred in admitting the statement into evidence over objection, and in denying the motions for curative instruction, to strike and for mistrial, as violating his constitutional rights to confrontation, cross-examination and a fair trial.

As a general rule, a party may re-examine a witness about matters brought out on cross-examination. Noeling v. State, 40 So.2d 120 (Fla.1949). See Marlow v. State, 49 Fla. 7, 38 So. 653 (1905); Stewart v. State, 58 Fla. 97, 50 So. 642 (1909). Testimony is admissible on redirect examination which tends to qualify, limit or explain testimony elicited on cross-examina tion. Tampa Electric Co. v. Charles, 69 Fla. 27, 67 So. 572 (1915). It is also generally held that the scope of redirect examination rests largely in the discretion of the court. See Yanzito v. Wagner, 244 So.2d 761 (Fla. 1st DCA 1971); 81 Am.Jur. Witnesses, § 425 (1976).

The record reflects that defense counsel cross-examined the investigating officer as to whether he observed the incident, whether, he had any idea how the injuries had been inflicted aside from what people had told him; and consequently whether the “statements from witnesses” were the basis for his arrest of the defendant. The officer responded affirmatively and added Carl Hinton, defendant’s brother, the victim, as also having furnished the basis for the arrest. We find that the prosecutor properly pursued this line of inquiry on redirect examination of the officer, where the questions amplified the statements made in response to questions asked on cross-examination by defense counsel to elicit answers favorable to the defense. See 81 Am.Jur.2d, Witnesses § 425, supra.

In seeking reversal, defendant relies heavily on Spears v. State, 301 So.2d 24 (Fla. 2d DCA 1974), but we find this reliance to be misplaced. The record contains direct eyewitness testimony which is more than sufficient to sustain a conviction, without the testimony complained of. First, the prosecutor’s redirect examination of the officer on the same subject brought out by defense counsel on cross-examination did not deviate greatly from what had already been elicited by defense counsel on cross-examination. Second, the statement of the witness on redirect was not “the only evidence that directly implicated appellant as a participant in the crime charged.” Spears v. State, supra, page 24. The record contains ample direct evidence of defendant’s guilt furnished by eyewitnesses to the crime; and a conviction could have been had without the statement at issue. Therefore, we find that no reversible error has been demonstrated.

Affirmed.


author: PEARSON, Judge.

text:
    Alexander C. MacINTYRE, a/k/a A. C. MacIntyre, Appellant, v. GREEN’S POOL SERVICE, INC., and Lemuel Ramos, A.I.A. Associates, Appellees.
    No. 76-1092.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Adams, George, Lee & Schulte and Amy Shield Levine, Miami, for appellant.
    Smith, Mandler, Smith, Parker & Werner and Jeffrey Sarrow, Miami Beach, for ap-pellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The appellant Alexander C. MacIntyre, the owner of a remodeled residence, was the defendant to a mechanic’s lien foreclosure brought by Green’s Pool Service, Inc. MacIntyre answered the complaint and filed a third party complaint against Lemuel Ramos, A.I.A./Associates, his architect on the job, alleging negligence of the architect. Ramos counterclaimed against the owner MacIntyre alleging a balance due on his contract fee. After trial, a final judgment was entered upon the third party complaint and the counterclaim. The trial court found for the architect upon the claim of negligence and for the architect upon his claim for a balance due on his fee. This appeal by MacIntyre urges reversal of (1) the denial of his complaint against the architect for negligence, and (2) the judgment for the architect. Green’s Pool Service, Inc., the lienor, is not a party to this appeal.

The owner’s contention is basically that the trial court misapplied the law in failing to find negligence upon the undisputed facts presented and that the trial judge misconstrued the contract between the parties.

MacIntyre was the owner of a house located at 1835 South Bayshore Drive, which warranted improvement. To this end, Mac-Intyre contracted with Ramos on November 8, 1971, to act as architect on behalf of MacIntyre in the construction or remodeling of said house. The contract entered into between Ramos and MacIntyre was the standard form A.I.A. agreement between owner and architect, with modifications. The standard portion of the contract provided that the architect would receive payment of the basic compensation by a percentage of the total construction cost and, in addition, an hourly rate of pay for additional services. The contract was modified to provide that the architect would receive full payment of the basic compensation at the completion of the bidding or negotiation phase and, thereafter, to be paid an hourly rate for work actually performed by Ramos or his employees during the construction phase of the house.

On June 16, 1972, MacIntyre executed an agreement with the general contractor, Griggs, to remodel the house for a bid of $100,000.00. At the completion of the bid and negotiation phase, Ramos was paid in full in accordance with the modified contract, the agreed upon 16% of $100,000.00. After that payment, Ramos charged MacIn-tyre on an hourly basis for work performed by the architect or his employees as was previously agreed upon by the parties.

As a result of the impending marriage of MacIntyre, changes were made in the construction or remodeling of the house for an additional cost of $29,858.00. This additional work was reflected in a change order executed in May, 1976. After the change order was made Ramos continued to bill MacIntyre at an hourly rate through June 29, 1973. No further bill was sent to Mac-Intyre by Ramos prior to the counterclaim filed by Ramos on December 12, 1976, with its demand for 16% of $29,858.00.

On May 29, 1973, Griggs abandoned the construction job on MacIntyre’s house. Mac-Intyre was also faced with a barrage of lawsuits from subcontractors who had filed complaints for foreclosure of mechanic’s liens and damages against MacIntyre because they had not been paid by Griggs, the general contractor. As previously pointed out, MacIntyre filed a third party complaint and later a counterclaim against Ramos for negligence in advising the selection of Larry C. Griggs, Inc., as the general contractor for the project, negligence in advising Mac-Intyre as to when and to whom progress payments were to be made, and negligence in failing to file and cause to be recorded a Notice of Commencement with a Clerk of the Circuit Court or, in the alternative, to advise MacIntyre to file and record a Notice of Commencement with a Clerk of the Circuit Court.

Appellant owner’s point urging error upon the court’s finding that the owner had failed to establish his counterclaim for negligence of the architect is not supported by the record. The contract places upon the architect none of the duties alleged. The mechanic’s lien statute places the burden of recording and posting a “Notice of Commencement” upon the “owner or his authorized agent.” See Section 713.13(1), Florida Statutes (1971). The other allegations of the counterclaim are unsupported by the record because there is no showing that the duties alleged fall within the duties ordinarily assumed or placed upon an architect by custom and practice of the business community. Therefore, the judgment finding for the architect upon the counterclaim will be affirmed.

Appellant/owner’s point, urging that the trial court misinterpreted the contract between the owner and the architect so that the architect was entitled to recover an additional fee upon the $29,858.00 additional construction costs has merit. The standard form A.I.A. contract was modified by the architect and as modified became the contract between the owner and the architect. The standard form provided as basic architect’s compensation a fee of 16% of “construction cost.” The standard contract also provided for payments at an hourly rate to the architect “For the architect’s additional services.” There is no dispute on the additional services payments. They have been paid in full as billed by the architect. The dispute arises from an attempted application by the architect of the 16% fee due to increased construction costs because of changes and the contractor’s abandonment of the job.

If the court had been dealing with the standard form without the modification made by the architect and approved by the owner, the architect’s interpretation adopted by the trial court would have been correct, because the contract would have called for two separate payments, one based upon “construction costs” and the other based upon “additional services.” The difficulty arises because of the modification. The standard contract would have called for payment of the 16% as follows:

******
“Schematic Design Phase. 15%
Design Development Phase . 35%
Construction Documents Phase. 75%
Bidding or Negotiation Phase. 80%
Construction Phase.100%
******

This system of payment was changed by the modification as follows:

“15.3 Payment schedule shown in Article 6.1.2 shall be revised to read as follows:
Schematic Design Phase.20%
Design Development Phase . 50%
Construction Documents Phase. 90%
Bidding or Negotiation Phase.100%
15.4 The fee shall be computed on the basis of probable construction cost and shall be redefined at the time that bids are open, at which time the fee and payments shall be adjusted.
15.5 At no time shall payments be made in excess of schedule of percentages under Article 15.3.”

The modification terminates the 16% fee at the “Bidding or Negotiation Phase.” In effect, it changed the terms of the contract from one to pay 16% of “construction costs” to 16% of “probable construction costs.” It allowed the architect to get his money sooner but on a different basis. Therefore, there is no further payment due under the “basic.compensation” provision of the contract.

It is elementary law that a contract will be construed according to its own clear and unambiguous terms. Arnold v. First Savings and Trust Co., 104 Fla. 545, 141 So. 608 (1932); Voelker v. Combined Ins. Co. of America, 73 So.2d 403 (Fla.1954); and Shaw v. Bankers Life Company, 213 So.2d 514 (Fla.3d DCA 1968). It should be noted that the terms of the contract were followed by the parties in their dealing and that no claim or bill for 16% of additional construction cost was made until the filing of the counterclaim by the architect. The circumstances suggest that the parties interpreted the contract to call for only one payment of the 16% fee. Cf. American Agronomies Corporation v. Ross, 309 So.2d 582 (Fla.3d DCA 1975).

If the contract should be read as ambiguous, two additional principles for the interpretation of contracts support the conclusion we have reached. In cases of doubt as to the meaning the parties intended by contract language, the language will ordinarily be interpreted in a light less favorable to the party drawing the contract. See Travelers Indemnity Co. v. Washington Federal Savings and Loan Association of Miami Beach, 214 So.2d 492 (Fla.3d DCA 1968); and American Agronomics Corporation v. Ross, 309 So.2d 582 (Fla.3d DCA 1975). Where there is a conflict in the language of a contract between the printed portions thereof and the specially added portions thereof, the specially prepared portions will ordinarily be given precedence. See Nat Harrison Associates, Inc. v. Florida Power & Light Company, 162 So.2d 298 (Fla.3d DCA 1964); and Allegheny Mutual Casualty Company v. State, 176 So.2d 362 (Fla.2d DCA 1965). See also Burdines v. Pan-Atlantic Steamship Corp., 199 F.2d 571 (5th Cir. 1952).

The appellee/architect urges that the question of whether the 16% provision covered increased construction costs after the 100% payment was a question of fact to be found by the court and, therefore, not to be disturbed by the appellate court except upon a holding that no competent evidence supported the finding of the trial judge. See Seven-Up Bottling Co. of Miami, Inc. v. George Construction Corp., 156 So.2d 167 (Fla.3d DCA 1963). We think that the cited principle is not applicable here because the contract itself is governing, unlike the Seven-Up case where the disputed element was missing from the contract.

We hold that the trial court misinterpreted the contract between the parties in finding that additional sums were due from the owner to the architect, and that portion of the judgment which grants recovery in favor of Lemuel Ramos, A.I.A./Associates, against Alexander C. MacIntyre is reversed. The judgment is affirmed in part and reversed in part and remanded with directions to enter a judgment for Alexander C. MacIntyre upon the counterclaim of Lemuel Ramos A.LA./Associates.

Affirmed in part and reversed in part.

      . “a. FOR THE ARCHITECT’S BASIC SERVICES, as described in Paragraph 1.1, Basic Compensation computed at the following percentages of the Construction Cost, as defined in Article 3, for portions of the Project to be awarded under
      A single Stipulated Sum Contract per cent (16%)”


author: HENDRY, Chief Judge.

text:
    KENNEDY AND COHEN, INC., Appellant, v. Leslie VAN EYCK, etc., et al., Appellees.
    No. 76-1371.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Marlow, Mitzel, Ortmayer & Shofi and John B. Ostrow, Miami, for appellant.
    Daniel V. Ligman, Coral Gables, Allen G. Cohen, Alexander L. Martone, Jeanne Hey-ward, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellant, co-defendant below, appeals a post trial “order on motion for determination of amount of contribution among joint tortfeasors.”

This case arose out of a civil action for damages (automobile negligence) brought by the injured passengers of a vehicle insured by United States Fidelity & Guaranty Company (U.S.F. & G.), owned by Thorpe and driven by Van Burén, all appellees, co-defendants below. The accident occurred when the automobile collided with a concrete structure in appellant’s parking lot.

The cause proceeded to trial and resulted in a jury verdict in favor of the passengers which was made the basis of a final judgment in their favor. The jury also returned a cross-claim verdict upon special interrogatories which found that appellant was 80% negligent and appellee Van Burén, 20% negligent.

Thereafter, pursuant to Section 768.31, Florida Statutes (1975), appellee U.S.F. & G. filed a “motion for determination of amount of contribution among joint tort-feasors.” The motion alleged that prior to trial, a good faith offer had been made by U.S.F. & G., whereas appellant had failed to make any offer to settle the case, necessitating the expense of trial.

After a full hearing on the matter, the court entered an order on said motion which, in part, reads:

“ORDERED AND ADJUDGED that the Court finds the UNITED STATES FIDELITY AND GUARANTY COMPANY and KENNEDY AND COHEN, INC., to be joint tort-feasors, jointly and severally liable to the Plaintiffs for the payment of the judgment entered against them in favor of the Plaintiffs in the above styled cause, and it is further
“ORDERED AND ADJUDGED that the Defendant, UNITED STATES FIDELITY AND GUARANTY COMPANY, may enforce contribution from Defendant, KENNEDY AND COHEN, INC., for 80% of the judgments in favor of the Plaintiffs against the Defendants, and for the costs judgments entered in favor of the Plaintiffs against the Defendants based upon the equities between these two Defendants, the relative degrees of fault between the two Defendants not being considered by the Court, so that KENNEDY AND COHEN, INC., shall be liable for 80% of the judgments and costs in favor of the Plaintiffs against these defendants, and that UNITED STATES FIDELITY AND GUARANTY COMPANY, BRADLEY VAN BUREN, and THOMAS I. THORPE, shall be liable for 20% of the payment of the judgments and costs in favor of the Plaintiffs against these defendants.”

From the above order, this appeal is taken.

Appellant contends that the court erred in ordering contribution between ap-pellees and appellant on a 20%-80% basis in that Section 768.31(3), Florida Statutes (1975) requires contribution on a pro rata basis, and not on the basis of relative degrees of fault. Based upon the record on appeal, we must reject appellant’s contention.

Section 768.31(3) provides:

“(3) Pro Rata Shares. In determining the pro rata shares of tortfeasors in the entire liability:
“(a) Their relative degrees of fault shall not be considered.
“(b) If equity requires, the collective liability of some as a group shall constitute a single share.
“(c) Principles of equity applicable to contribution generally shall apply. [Emphasis added.]

We note that in rendering its order, the court specifically stated that it was not considering the relative degrees of fault of the parties, but was rather basing the order upon the equities between appellees and appellant.

In that appellant has failed to include a transcript of the hearing on the aforementioned motion as part of the record on appeal, we must assume that the court’s determination of the equities between the parties was based upon competent evidence. Sydney Paper Co. v. Gans, 193 So.2d 41 (Fla. 3d DCA 1966); In re Guardianship of White, 140 So.2d 311 (Fla. 1st DCA 1962).

Accordingly, the order appealed from is hereby affirmed.

Affirmed.

      . The above statutory section has since been changed to provide that relative degrees of fault shall be the basis for allocation of liability. See Section 768.31(3), Florida Statutes (1976 Supp.).


text:
    Thomas COSENTINO d/b/a Cosentino Construction Company, Appellant, v. The DOUBLE J. CORPORATION, a Florida Corporation, etc., et al., Appellees.
    No. 76-774.
    District Court of Appeal of Florida, Second District.
    July 6, 1977.

      Andrew D. Owens, Jr., Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellant.
    Carrol F. Dillon, Dillon & Dillon, Sarasota, for appellees Joseph L. Romano and Addie C. Romano.
   PER CURIAM.

Affirmed, without prejudice to appellees Joseph L. Romano and Addie C. Romano to apply to the trial court for entry of a final judgment based on default entered March 28, 1975, against Orren Prieur d/b/a Allied Drywall Company.

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


author: NATHAN, Judge.

text:
    Ulysses Ulice GILBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-971.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

As mandated by the Florida Supreme Court in Gilbert v. State, 344 So.2d 564 (Fla.1977), this cause is before us for further consideration in light of State v. White, 324 So.2d 630 (Fla.1975). We have reviewed the case again, taking into consideration the supplemental briefs filed by counsel for the defense and for the State.

The facts show that the defendant, Ulysses Ulice Gilbert, was playing pool in the Zebra Lounge where the victim, Louvenia Robinson is the bar maid and manager. The defendant began to curse and Louvenia asked him to be quiet or leave. He continued to curse, so Louvenia went to the telephone to call the police. The defendant pulled a gun, pointed it at Louvenia’s head and told her if she called the police, , . he would blow [her] God damned brains out.” Louvenia saw that the gun was a dark color, and that the defendant held it to her head for several seconds,whereupon she obeyed and put the phone down. The defendant then left the Zebra waiving the gun at the patrons and stating, “Nobody better not follow me.”

The defendant was charged by information with aggravated assault. He waived jury trial, was tried without a jury, convicted and sentenced to two years non-reporting probation. During the trial, Louvenia testified to the facts recited above, and her testimony was corroborated by one of the bar patrons who witnessed the incident.

Defendant urges on appeal that there was no evidence of well-founded fear on the part of the victim that violence was imminent. We follow the principle of law espoused by the Florida Supreme Court in State v. White, supra, that the crime of aggravated assault includes as one of its elements the victim’s well-founded fear that violence is imminent. Applying it to the facts of this case, we find that the defendant’s action in pointing the pistol at the victim’s head in plain view of the victim and other persons present met all of the essential elements of aggravated assault. It is unlikely in the course of human events that a person in Louvenia’s circumstances would not have a well-founded fear that violence is imminent when a pistol is pointed at her head.

When one is confronted by another with a gun and does not know it to be unloaded, the natural reaction is to assume that the gun can be fired and can inflict great bodily harm. Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970). A gun used in connection with and at the scene of a robbery is as a matter of law a dangerous weapon and those on the scene are placed in an objective state of danger regardless of whether there is proof that the gun was loaded. Baker v. United States, 412 F.2d 1069, 1072 (5th Cir. 1969). As expressed in 1 Wharton’s Criminal Evidence (10th Edition), page 667 and note, the person who attempts to rob another by putting him in fear of death or great bodily harm through his conduct in deliberately pointing a gun at him at close range impliedly represents that the gun is loaded, and the proof of such conduct establishes prima facie that the gun was loaded and capable of being discharged. Thomas v. State, 183 So.2d 297, 300 (Fla. 3d DCA 1966), is a robbery case in which the victim did not provide direct testimony of being placed in fear. This court, nevertheless, held that where the circumstances were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown. See also Ponder v. State, 221 So.2d 437 (Fla.3d DCA 1969), and Solloa v. State, 227 So.2d 217 (Fla.3d DCA 1969).

We see no reason why the same rule should not apply to aggravated assault. That is, where the assault is accomplished by the pointing of a gun in a threatening manner, and within the obvious range of the gun, the victim is justified in inferring that the gun is loaded, and the finder of fact is justified in inferring that the victim was placed in fear of imminent violence. Therefore, from the facts in this case, we hold that there was a sufficient showing of fear on the part of the victim to sustain the conviction of aggravated assault.

Affirmed.


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    Willie E. BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 76-863.
    District Court of Appeal of Florida, Second District.
    July 13, 1977.
    Jack O. Johnson, Public Defender, and Greg A. Johnson, Asst. Public Defender, Bartow, for appellant.
    Willie E. Burgess, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After jury trial appellant was found guilty of having committed the offenses of involuntary sexual battery, attempted robbery, and assault with intent to commit murder in the first degree. He was sentenced to a single general life sentence with credit for time served in jail awaiting trial.

The points relied upon by appellant for reversal have been carefully considered in the light of the record and briefs, and we hold no reversible error has been made to appear. It is necessary, however, for the case to be remanded to the trial court for correction of appellant’s sentence. It is apparent from our reading of the colloquy of the sentencing hearing that the trial court intended to impose maximum concurrent sentences on the charged offenses which, we submit, would have been proper. The offenses do not fall within the single transaction rule. The judgment and sentence rendered in this case shows that the trial court did not carry out his expressed intention and, as mentioned before, imposed a general sentence, which is improper. Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). See also Darden v. State, 330 So.2d 750 (Fla.2d DCA 1976).

Therefore, the convictions are affirmed, but the general life sentence is vacated. The case is remanded for resentencing in order that the judgment and sentence may reflect the imposition of sentence announced by the trial court in open court. It is not necessary that appellant be present in court for this purpose.

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


text:
    Terrance Lee FITZSIMONS, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-716 to 76-718.
    District Court of Appeal of Florida, Second District.
    July 13, 1977.
    Jack F. White, Jr., Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, under charges of second-degree murder, assault with intent to commit first-degree murder, and burglary, was found not guilty by reason of insanity following a nonjury trial. The trial court, thereupon, pursuant to Fla.R.Crim.P. 3.460, forthwith committed him to the Division of Mental Health finding him manifestly dangerous to the peace and safety of the people.

It is not clear from the order of commitment, nor from any other document included in the record on appeal, whether appellant was afforded a hearing by the trial court specifically on the issue of his being manifestly dangerous at the time of commitment or subjected to examination relative to this question since commitment. Appellant is entitled to effective notice of and opportunity for a hearing replete with due process safeguards at both the time of commitment and upon subsequent re-examination. See Powell v. Genung, 306 So.2d 113 (Fla.1974).

Affirmed without prejudice to appellant to file a petition requesting a hearing before the trial court as to whether he is manifestly dangerous to the peace and safety of the people.

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


author: BOYER, Judge. ERVIN, Judge,

text:
    Bennie Preston GREENE, Appellant, v. Linda Janette GREENE, Appellee.
    No. CC-441.
    District Court of Appeal of Florida, First District.
    July 15, 1977.

      Robert B. Staats, Staats & Nabors, Panama City, for appellant.
    Robert M. Moore, Port St. Joe., for appel-lee.
   BOYER, Judge.

Appellant, the former husband, challenges those portions of the-final judgment of dissolution of marriage which awarded to the former wife both lump sum and periodic alimony, and made the award of periodic alimony permanent in nature. The final judgment awarded the wife household furnishings and effects. The trial court further ordered $150 a month rehabilitative alimony for two years reserving jurisdiction to then consider any application that the alimony be made permanent. As for the remainder of the real property and cash held by the parties, the trial court divided the proceeds equally.

We agree with the husband that the trial court should not have awarded the marital home, lot, and furnishings to the wife as lump sum alimony. See Marriage of Arnold, 335 So.2d 13 (Fla. 4th DCA 1976) and Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976).

As to the second point, we affirm. The final judgment, insofar as relevant to that point, provides:

“Respondent shall pay to petitioner, as rehabilitative alimony, the sum of $150.00 per month for a period of 24 months * * *; provided, however, that the court reserves jurisdiction during said 24 month period to reduce, increase, or extend the rehabilitative alimony herein provided for, and, at the expiration of the 24 month period to award permanent alimony upon a proper showing of need and ability to pay.”

In a somewhat factually similar case we, in Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), citing Lee v. Lee, 309 So.2d 26 (Fla. 2nd DCA 1975), said:

“Moreover, as the period of rehabilitative alimony draws to a close, the wife may, upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful, petition the trial court for an extension of the rehabilitative alimony or an award of permanent alimony.”

Sub judice, our examination of the record leads to the conclusion that appellee established both her need and appellant’s ability to pay. We do, however, deem it desirable to observe that neither the trial court’s findings as to alimony nor this court’s affirmance on the point are res ad-judieata to future circumstances. If, prior to or at the end of the two year period specified in the final judgment, appellee has sufficiently rehabilitated herself so as not to require alimony and/or the husband’s financial situation has so deteriorated that he is no longer able to meet the demands of the alimony provision, he may petition the court for modification. Similarly, if appel-lee desires to seek that the alimony be made permanent at the end of the two year period then she may, as provided in the final judgment, petition for such a change.

Affirmed in part and reversed in part.

MILLS, J., concurs.

ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring and dissenting.

I concur in the court’s disposition of all issues except the propriety of the lower court’s award of the marital home to the wife for the same reasons set forth in my dissenting opinion in Baggett v. Baggett, 347 So.2d 1063 (Fla. 1st DCA 1977), opinion filed June 29, 1977.


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    KUSTER ENTERPRISES, INC., a Florida Corporation, Petitioner, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. FF-83.
    District Court of Appeal of Florida, First District.
    July 15, 1977.
    Carlos Alvarez, Mahoney, Hadlow & Adams, Jacksonville, for petitioner.
    George L. Waas, H. Reynolds Sampson, Gen. Counsel, State Dept, of Transportation, Tallahassee, for respondent.
   PER CURIAM.

Kuster files its petition for review from an order of DOT refusing Kuster’s rule making petition which would have permitted the hauling of 14 feet wide prefabricated pools. The order of denial stated generally that with the single exception of boats, the Department’s position had been consistent throughout the years limiting permits for overweight loads to a maximum of twelve feet. DOT in its brief also admitted that it had recently adopted an emergency rule allowing permit applications for the hauling of mobile modular homes, the width of which is from twelve feet to fourteen feet. Fla.Admin.Code Rule 14ER77.

Kuster argues that DOT’s allowance of fourteen feet wide boats and mobile homes on Florida highways and its denial of such permits to manufacturers of prefabricated swimming pools of similar size is a denial of equal protection of the laws. DOT, however, asserts a rational basis for its permitting practices.

This court cannot adjudicate Kuster’s claim in the absence of certain facts not addressed by DOT’s order. These facts should include but not necessarily be limited to a resolution of the following questions: What significant distinctions are present in the dimensions of fourteen feet wide boats and mobile homes which are permitted upon the highways which are not present in the width dimensions of fourteen feet prefabricated swimming pools? What additional burdens would be placed upon Florida highways by issuing a permit such as requested by Kuster?

We therefore remand under authority of Section 120.68(6), Florida Statutes (Supp. 1976), for a fact finding proceeding of these disputed facts. DOT shall then enter an order setting forth separate findings of fact and conclusions of law as required by Section 120.59, Florida Statutes (1975).

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


text:
    Edward B. PERRY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1342.
    District Court of Appeal of Florida, Second District.
    July 15, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s conviction is affirmed but appellant’s sentence to an indeterminate term of imprisonment from one to twenty years is vacated and the cause remanded for re-sentencing to a term of imprisonment from six months to twenty years. Cox v. State, 344 So.2d 1324 (Fla. 2d DCA 1977). Appellant need not be present at resentencing.

HOBSON, A. C. J., and McNULTY and SCHEB, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    Lucille RUBIO, Appellant, v. Maurice RUBIO, Appellee.
    No. 76-1073.
    District Court of Appeal of Florida, Second District.
    July 15, 1977.

      Martin N. Strelser, Lancaster & Strelser, and E. C. Watkins, Jr., Tampa, for appellant.
    Michael L. Kinney, Richard A. Lazzara, Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/wife, Lucille Rubio, appeals the final judgment entered on her petition for modification of final judgment of dissolution of marriage and the counterpetition for modification filed by appellee/husband, Maurice Rubio.

Appellant and appellee were granted a divorce in August, 1967. The final judgment incorporated by reference a property settlement agreement voluntarily entered into by the parties on advice of competent counsel. The agreement provided for alimony payments, income tax payments, and medical expenses payments, among other things. Since 1967 appellant had been granted an increase in alimony payments by the court on two previous petitions. Appellant sought by this petition to increase the amount of alimony as provided for by the terms and provisions of the final judgment and to enforce a provision in the property settlement which required appellee to pay appellant’s income taxes. Appellee answered and filed a counterpetition which alleged that appellant was able to support herself, that she was gainfully employed, and that appellee should not be required to pay any further alimony to appellant. Appellee further alleged that he was not required to pay the income tax assessed against appellant’s individual earnings. An order was entered on June 1, 1976, providing for a $110 per month increase in the amount of alimony, that the wife pay her own income tax as a consequence of any employment that she may have, and that the husband’s liability for the payment of drug and medical expenses be limited to $100 per month.

It is well settled in Florida that an agreement which is entered into to provide for alimony payments and incorporated into a final decree of dissolution of marriage is subject to modification by the trial court. E. g, Horton v. Horton, 330 So.2d 69 (Fla. 1st DCA 1976). The court, however, does not have jurisdiction to modify an agreement which constitutes a settlement of property rights. Jurisdiction, then, is dependent on a determination of the nature of the agreement, and it is the substance of the instrument and not the form used or labels attached to it or used by the parties which guides the court in its determination. Adler v. Nicholas, 381 F.2d 168 (5th Cir. 1967).

The provisions of the agreement in the case before us are indicia of a property settlement. Appellant expressly transferred to appellee her interest in the parties’ jointly held property as well as property held in each of their individual names. The amount of the periodic payments referred to in the agreement as alimony payments was to be charged against appellee’s estate should he predecease appellant. Appellee was to maintain disability income insurance to provide for continued payments to appellant should appellee be rendered incapable of earning sufficient income to make the payments. See Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Howell v. Howell, 164 So.2d 231 (Fla. 2d DCA 1964). According to this agreement only the provision pertaining to the periodic payments was subject to modification by the court as necessary to maintain “a standard of living equivalent to that enjoyed by the parties hereto prior to their separation.” While the trial court is empowered to interpret this agreement as it would any contract it is precluded from modifying any other provision of the agreement.

Appellant has presented two meritorious points on appeal to this court: first, whether the trial court erred in limiting appellee’s liability for payment of appellant’s drug and medication expenses to $100 per month; second, whether it was error to order that appellant pay the income tax on any earnings she might receive. Upon a close reading of the agreement we reverse the order of the trial court on the first issue and affirm on the second issue.

Paragraph seven of the property settlement, which treats medical expenses, provides that:

The Husband agrees to pay all reasonable and necessary medical and dental and ocular and pharmaceutical expense of the Wife indefinitely, not recklessly or needlessly incurred, including her present care by her physician Dr. Saul Holtzman of St. Petersburg, Florida, or any other physician selected by the Wife. This obligation shall terminate upon remarriage of Wife.

The obligation of appellee as to these expenses is clearly and unambiguously spelled out. To permit a change of this provision would be contrary to the intent of the parties as reflected in the agreement into which they voluntarily entered. We cannot find any evidence in the record from which we can reasonably conclude that appellant “recklessly or needlessly incurred” any expenses covered by paragraph seven. No such showing having been made to appear at this time, paragraph seven requires that appellee pay all medical expenses which are reasonable and necessary.

Paragraph one of the property settlement, which treats income tax payments, provides in pertinent part that:

[I]t is understood and agreed, that sums herein required to be paid as permanent alimony by the Husband unto the Wife shall be net to the Wife without deduction for income taxes or other charges or expenses. In that connection, in addition to the sums hereunder required to be paid by the Husband unto the Wife as permanent alimony, the Husband shall pay such additional sums as may be necessary to pay any taxes, charges or expenses of any kind levied upon the Wife, deriving from her receipt of the sums herein required to be paid as permanent alimony, and in that connection, the sums required to be paid by the Husband to the Wife hereunder shall be adjusted from time to time in such manner as to secure to the Wife the receipt of the sums herein required to be paid as net sums free of such deduction, and in like manner, any future changes in permanent alimony as herein set forth shall be likewise adjusted to accomplish the same ends.

The property settlement expressly provides that appellee is to pay any income tax assessed appellant on the alimony payments, but it does not provide that if appellant obtains employment that appellee will be required to pay the taxes due on her earnings. Appellant is to be commended for securing employment, but, nevertheless, the obligation for payment of the taxes due on these separate funds is hers.

AFFIRMED in part; REVERSED in part with directions consistent with this opinion.

HOBSON and GRIMES, JJ., concur.


text:
    Rita K. DIBBLE, Appellant, v. STATE of Florida, Appellee.
    No. 76-787.
    District Court of Appeal of Florida, Second District.
    July 15, 1977.
    Joseph F. McDermott, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr. and Mary Jo Gallay, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was tried on a charge of robbery and was found guilty of grand larceny. Judgment and sentence were entered on the jury verdict, which judgment and sentence is appealed.

The salient facts involved are that one Detective Herold was posing as a drunk derelict who had passed out on the bottom steps of the stairway leading up to the appellant’s residence. Detective Herold had $102 in his wallet which had been previously sprayed with a chemical known as “Search-Clue.” This detection powder is visible as green in color when shown under a black light.

Detective Herold testified that he heard a door open at the top of the stairs and saw a male and appellant coming down the stairs toward him. The male jostled him and, in effect, informed him that he was on private property and told him to leave. He continued to act like he was passed out. The two subjects went back upstairs and he heard a door close. Within a few minutes he heard the door open again and the male and appellant came back down the stairs. The detective had his hand lying over his hip pocket which contained the wallet. The male moved the detective’s hand away from the pocket, struggled with him and took the detective’s left hand, shoved it down on the step and leaned on it as he pulled the wallet out of his pocket. The detective tried to push the male’s hand away to get back and protect his wallet, but the male was of considerable size and weight and was able to take the wallet out of his pocket.

The male and appellant ascended the stairs to the top of the landing. There were stairs leading down on the other side of the landing. When the male and appellant descended on the other side out of sight, the detective notified the standby officers, by way of a communication system on his person, that they had taken his wallet. The male and appellant were arrested at the bottom of the stairs in the rear of the building by the other officers.

The appellant was advised of her Miranda rights and upon examination the “Search-Clue” appeared on one of her hands as green in color.

At the trial Detective Herold testified that after advising appellant of her Miranda rights she stated that she hadn’t done anything and he told her that even though she hadn’t taken the wallet that did not mean she was not involved. He testified, “I told her that this happens all the time on the street, people getting robbed, but this time I was a police officer, and ‘You just all hit the wrong guy this time.’ ” At this point appellant’s counsel objected and moved for a mistrial based on the ground that the officer’s statement “You just all hit the wrong guy this time” inferred that the appellant had been involved in prior similar crimes. The trial court denied the motion for a mistrial and did not strike the statement nor explain to the jury to disregard such statement.

In Williams v. State, 110 So.2d 654 (Fla.1959), it was held that similar fact evidence of a prior crime is admissible if relevant, except to prove bad character or criminal propensities. However, prior to evidence of an independent crime being admissible, it is essential to show that the former crime was committed and committed by the person on trial. Norris v. State, 158 So.2d 803 (Fla. 1st DCA 1963) and State v. Norris, 168 So.2d 541 (Fla.1964).

The only reasonable inference from the detective’s statement “You just all hit the wrong guy this time” is that the appellant had in some way been involved in similar criminal activities in the past. There was no proof that a former crime had been committed or if a prior crime had been committed, that the appellant committed it. The statement by Detective Herold in front of the jury was highly prejudicial and a mistrial should have been granted.

The judgment and sentence is hereby reversed and the cause remanded.

BOARDMAN, C. J., HOBSON, J., and DANAHY, PAUL W., JR., Associate Judge, concur.