author: KEHOE, Judge.

text:
    CITY OF NORTH BAY VILLAGE, a Municipal Corporation, and Bal Harbour Village, etc., and Bay Harbor Islands, etc., Appellants, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
    Nos. 77-1962, 77-1963 and 77-1964.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Rehearing Denied Jan. 8, 1979.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel, Wright & Wolff and Alan S. Gold, Joseph H. Weil, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Trib-ble, Miami, Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, for appellants.
    Joseph A. Wanick, City Atty., Miami Beach, Philip J. Reichenthal and Lee H. Schillinger, Coral Gables, for appellee.
    Before HENDRY and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring these consolidated appeals from a final summary judgment in favor of appellee, defendant below. Among the several points raised on appeal by appellants and on cross-appeal by appellee is one which requires reversal.

The pertinent facts in this matter may be summarized as follows: Appellants’ complaint for declaratory judgment and injunction alleges that they purchased their water from the City of Miami Beach which in turn purchases the water from the Metro-Dade Water & Sewer Authority under a written contract between the City of Miami Beach and the predecessor of the Authority. There is no contract between appellants and the City of Miami Beach, but appellants have been adjudicated to be third party beneficiaries of the contract between the City of Miami Beach and the predecessor of the Authority. City of Miami Beach v. City of North Bay Village, 313 So.2d 126 (Fla. 3d DCA 1975).

The City of Miami Beach set the rates for the water it obtained from the Authority, and in turn sold it to Appellants. City of Miami Beach Ordinance No. 1936, enacted October 1, 1972, raised the rates from 25 cents to 33 cents per thousand gallons. This raise of rates was the subject of the action cited above, 313 So.2d 126. The judgment in that action held that the raised rates were invalid, but that the City of Miami Beach could affect a change of rates, after a hearing, based on reasonable cost of the water. Pending the outcome of the litigation, pursuant to the court order, appellants deposited the 8 cents difference between 25 cents and 33 cents in an approved escrow account.

On September 3, 1975, the Board of County Commissioners of Metropolitan Dade County adopted Ordinance No. 75-68 giving the Metro Dade Water & Sewer Board authority over water rates imposed by a municipality supplying water to another municipality. Although the complaint alleged that the Board’s ordinance was held void by the Circuit Court, that judgment has been reversed by this court holding that the ordinance is valid. State v. Metropolitan Dade County Water and Sewer Board, 347 So.2d 699 (Fla. 3d DCA 1977) (cert. pending). Beginning on September 3, 1975, after the passage of this Ordinance, the City of Miami Beach held a hearing to determine the water rate to be charged appellants. Thereafter, on October 1, 1975, the City of Miami Beach passed an ordinance providing for a rate of 48 cents (all rates are per one thousand gallons) consisting of 41 cents representing reasonable cost of water and 7 cents representing retroactive payments to be charged appellants. The effective rate to this point had been 25 cents with appellants paying 8 cents into an agreed upon escrow account to cover the difference between 25 cents and 33 cents, the 33 cent rate having been declared void and later repealed on October 1, 1975.

On December 17, 1975, the City of Miami Beach passed Resolution No. 75-14904 described as follows:

A RESOLUTION FINDING AND DETERMINING, PURSUANT TO COURT ORDER, THAT 48 CENT RATE PER 1,000. GALLONS WATER IS A FAIR AND REASONABLE RATE TO BE CHARGED BY THE CITY OF MIAMI BEACH TO OUTSIDE MUNICIPAL CUSTOMERS: AND DIRECTING THE CITY ATTORNEY TO TAKE NECESSARY LEGAL ACTION TO COLLECT ESCROW FUNDS, AND TO OBTAIN A JUDGMENT FOR THE DIFFERENCE BETWEEN THE 33 CENT RATE AND 48 CENT RATE FROM OCTOBER 1, 1972 to NOVEMBER 1, 1975

This Resolution was never acted upon. Subsequently, on October 20, 1976, the City of Miami Beach passed Ordinance No. 76-2078 setting a retroactive rate of 43 cents for water delivered to appellants for the period from October 1, 1972 (when the rate was raised from 25 cents to 33 cents) to September 30, 1975 (the 48 cent rate was supposed to be effective October 1, 1975). It is this latter Ordinance which is the subject of the instant case. The complaint alleged that it was arbitrary, unreasonable, and void; and sought a declaratory judgment holding that it was void and that the water rates be determined by the Miami Dade Water & Sewer Board.

The City of Miami Beach filed an answer admitting passage of the various water rates and denying other material allegations of the complaint. Affirmative defenses not material to this appeal were also interposed. The City of Miami Beach also filed a counterclaim for judgment against North Bay Village and Village of Bal Harb-our for the water used from October 1, 1972, to September 30, 1975, at the 43 cent rate.

The City of Miami Beach made a motion for summary judgment and appellants made a countermotion for summary judgment. Appellants also made a motion to dismiss the counterclaim of the City of Miami Beach on the grounds that it lacked jurisdiction to enforce the 43 cent rate without complying with Dade County Ordinance 75-68 and because, under the law of the case, the City of Miami Beach could not increase its rates retroactively beyond 33 cents per one thousand gallons.

The City of Miami Beach’s motion for summary judgment was granted by the trial court and it was awarded a judgment of $267,246.37 against North Bay Village, and $250,535.71 against Village of Bal Harbour (Bay Harbor Islands shares its cost of water with Bal Harbour). From the final summary judgment in favor of appellee, appellants bring these consolidated appeals.

One of the basic points made by appellants is that the trial court erred in ruling that the Metro Dade County Water & Sewer Board lacked jurisdiction under Dade County Ordinance No. 75-68 to supervise the water rates charged by the City of Miami Beach to appellants in the sale of water outside its geographical city limits for the period of October 1, 1972 through September 2, 1975. The trial court in making its ruling stated in its final summary judgment as follows:

“A. The City Council of the City of Miami Beach conducted the water rate hearings involved in this cause pursuant to this Court’s Final Judgment and the Opinion and Decision of the District Court of Appeal of Florida, Third District, which specifically recognized that the rates set by the City Council would be for a retroactive period beginning October 1, 1972. Although Dade County Ordinance 75-68 was adopted prior to the time that the hearings of the City of Miami Beach were actually conducted, a fair reading of that County Ordinance reflects that a retroactive affect does not clearly appear from the Ordinance and, therefore, should not be implied. Dade County v. Federal National Mortgage Association, 161 So.2d 255 (Fla. 3 DCA, 1964); Heberle v. P.R.O. Liquidating Company, 186 So.2d 280 (Fla. [App.] 1st Dist. 1966); 30 Fla.Jur.Statutes, Sec. 151. Since the basis for the retrospective interpretations suggested by Plaintiffs is not unequivocal and since there is no indication contained within the Ordinance of any legislative intent that said County Ordinance should be construed to have a retroactive operation, there is no basis to support Plaintiffs’ suggestion that the Metropolitan Dade County Water & Sewer Board had jurisdiction to set rates for the period of time from October 1, 1972 through September 2,1975. The Court is aware of the recent Opinion of the District Court of Appeal of Florida, Third District in the case of State of Florida ex rel. City of Miami Beach, etc. v. Metropolitan Dade County Water & Sewer Board, etc., [347] So.2d [699] (Fla. 3 DCA, Case Nos. 76-269, 76-1370, 76-1276 [1977]) wherein the Court declared that Dade County Ordinance No. 75-68 was a valid ordinance and that Dade County had the authority to adopt said Ordinance. Therefore, it is the conclusion of this Court, that the City of Miami Beach was without authority to adopt a water rate for service provided to the Plaintiff municipalities subsequent to 9:00 a. m. on September 3, 1975. Thus, to the extent that the City of Miami Beach Ordinance No. 76-2078 sought to set a rate of $.43 per one thousand gallons of water sold and delivered to the Plaintiff municipalities for the period from September 3, 1975 through October 31, 1975, said Ordinance is in conflict with Dade County Ordinance No. 75-68 and, therefore, ineffective. The Court notes, by way of obi-ter dictum, that pursuant to the Dade County Ordinance, the City Council of the City of Miami Beach was without authority to adopt the $.48 prospective rate pursuant to hearings conducted after September 3, 1975. That $.48 per one .thousand gallons rate, which is not the subject matter of this cause, was intended to be a prospective rate solely, and is therefore, clearly distinguishable from the retroactive rate which is involved in this cause and which rate applies to water delivered during a period of time prior to the jurisdiction of the Metropolitan Dade County Water & Sewer Board to set such rates.”

We must respectfully disagree with the trial court’s interpretation of the application of Dade County Ordinance No. 75-68 to the facts in the instant appeals. In our opinion, the operation of Ordinance 75-68 was not retroactive, but prospective only. The rates in dispute, set by the City of Miami Beach, were enacted subsequent to the effective date of Ordinance 75-68, i. e.,

September 3, 1975. [We have previously-held this Ordinance to be valid and that it allows the Metro Dade County Water & Sewer Board to review and supervise the water rates. State v. Metropolitan Dade County Water & Sewer Board, 347 So.2d 699 (Fla. 3d DCA 1977) (cert. pending).] It is undispúted that all actions of the Miami Beach City Council concerning the new water rate in dispute, including the adoption of emergency Ordinance No. 76-2078, occurred subsequent to the time that the Water & Sewer Board had jurisdiction over such matters. By reviewing and supervising the new water rate for the period in question, the Water & Sewer Board would not be changing any existing rights and conditions of the City of Miami Beach nor would it be changing the legal effect of any previous event. The City of Miami Beach had no right, vested or otherwise, to any particular rate for the period of October 1, 1972 to October 31, 1975, because such rate was rendered void by this Court’s prior decision. Under the facts here, there was no previous transaction or occurrence to which Dade County Ordinance 75-68 could attach prior to its adoption on September 3, 1975. See Heberle v. P.R.O. Liquidating Co., 186 So.2d 280 (Fla. 1st DCA 1966). In this case, the operation of Dade County Ordinance No. 75-68 based in full or part upon antecedent facts or events did not constitute a retroactive application of the Ordinance. See Ratner v. Hensley, 303 So.2d 41 (Fla. 3d DCA 1974). Lending support to this opinion are those cases which hold that remedial statutes (ordinances) which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law or the general rule against the retroactive operation of statutes. See, e. g., City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); Grammer v. Roman, 174 So.2d 443 (Fla. 2d DCA 1965); and Heberle v. P.R.O. Liquidating Co., 186 So.2d 280 (Fla. 1st DCA 1966). Accordingly, we reverse that portion of the final summary judgment ruling that the Metro Dade Water & Sewer Board lacked jurisdiction under Dade County Ordinance 75-68 to supervise the water rates charged by the City of Miami Beach to appellants for the period October 1, 1972 through September 2, 1975.

In the light of this determination, it is unnecessary for us to consider the other points raised by appellants. Accordingly, to the extent that they have not been made moot by this opinion, the other portions of the final summary judgment appealed, including those portions cross-appealed by ap-pellee, are affirmed.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, Judge,

license: Public Domain

text:
    John B. KENNELLY, Appellant, v. MARLER PROPERTIES OF DEERFIELD, INC., a Florida Corporation, et al., Appellees.
    No. 77-986.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Rehearing Denied Dec. 22, 1978.
    Michael H. Krul, Terrence J. Russell and Steven J. Gutter of Ruden, Barnett, McClo-sky, Schuster & Schmerer, Fort Lauderdale, for appellant.
    Kenneth R. Mikos of Friedrich, Kersten, Blackwell & Mikos, Fort Lauderdale, for appellee-Everglades Paving Co., Inc.
   PER CURIAM.

AFFIRMED.

DAUKSCH, J., and BASKIN, NATALIE, Associate Judge, concur.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

The trial court held that an amended claim of lien had priority over a previously recorded mortgage by allowing the amendment to relate back to a prior claim of lien filed before the mortgage, but on another parcel of property. See Section 713.08, Florida Statutes (1975). I do not believe it was proper to allow the amendment to relate back. Nor do I find the mortgagee’s knowledge of the lien to be controlling. I think the mortgage, recorded prior in time, has priority over the amended claim of lien.


author: KEHOE, Judge. BARKDULL, Judge,

text:
    Saul GOODMAN, Appellant, v. Richard H. OLSEN, Appellee.
    No. 77-1663.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Rehearing Denied Jan. 10, 1979.

      Leo Greenfield, North Miami, for appellant.
    John W. Prunty, Miller & Vogelsang, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

This is a cross-appeal by the defendant from a partial summary judgment in favor of the plaintiff in an action for a debt and for damages for breach of contract. The controlling issue is whether or not an appellate decision, which reversed prior judgments in favor of defendant by holding that the trial court erred in accepting a usury defense, but which did not treat with particularity certain facts underlying the defense, must be considered the law of the case so as to bar assertion of the defense on retrial. We conclude that the prior decision does preclude acceptance of the defense of usury on retrial, and affirm the judgment of the trial court.

The case emanates from an agreement executed in New York in 1968 between Saul Goodman, cross-appellee, and Richard H. Olsen, cross-appellant. Olsen, an attorney, prepared a written agreement which provided that Goodman was to advance the sum of $300,000 for the purchase of 50,000 shares of stock. Of this sum, $150,000 was a loan to Olsen, the borrowed funds to be used by him to purchase 25,000 shares of the stock which he would own. The remaining $150,000 was to be used to purchase 25,000 shares for Goodman.

The agreement provided that the loan to Olsen was to be repaid within a specified time and that the lender, Goodman, had the right to require Olsen to purchase all of Goodman’s stock at $10.00 a share by the end of 1969. No interest on the loan was stipulated in the agreement.

Olsen accepted Goodman’s check for $300,000 and immediately used it to purchase the stock. He then returned to Miami. The following day, he received a phone call from Goodman who stated that he had stopped payment on the check and would only permit the check to clear if Olsen rebated $25,000 of the sum. After some negotiation, Olsen reduced Goodman’s demand to $10,000 and wired him that amount.

After the maturity date of the loan, demands were made that Olsen repay the full $150,000. No acknowledgement of the receipt of the $10,000 was made. Olsen repaid another $50,000, and made no more payments.

In 1970, Goodman filed suit in two counts: Count I demanding repayment of the loan and Count II demanding damages for Olsen’s failure to purchase Goodman’s stock. By his amended answers to Goodman’s claims, Olsen represented that he had remitted the $10,000 extracted by Goodman as advance interest, but did not state with particularity the conditions under which the rebate was made. The principal defense interposed by Olsen was that the transaction was usurious under the applicable New York law, and therefore the agreement was unenforceable.

After a trial, the jury rendered a verdict in favor of Olsen and a judgment thereon was executed. The verdict and judgment were subsequently affirmed by this court. Goodman v. Olsen, 291 So.2d 71 (Fla. 3d DCA 1974). However, this court’s decision was quashed by the Supreme Court of Florida, and the cause was remanded for a new trial. Goodman v. Olsen, 305 So.2d 753 (Fla.1974). The court, through Justice McCain, held that it was error to allow the interposition of the defense of usury, a defense which “went to the heart of the action,” and therefore the cause was to be retried on the assumption that other defenses might be interposed. 305 So.2d 753 at 756.

Upon return of the case to the trial court, Goodman filed a motion for summary judgment. The trial court rendered a “partial summary judgment” as to Count I of the two count amended complaint, the claim for a balance due on the debt. Trial was had on Count II, the claim for damages for failure to purchase the stock, and a jury returned a verdict in favor of Olsen. Following the trial on Count II, the court entered final judgment for Goodman on Count I and for Olsen on Count II. This appeal by Olsen is from the adverse summary final judgment on Count I.

Although cross-appellant subdivides the central issue into three separate assertions of error, all devolve about the core question of whether or not the opinion rendered by the supreme court evinces sufficient consideration of Olsen’s contention that the $10,-000 rebate was usurious, per se, under New York law, to make the holding of the court the law of the case so as to bar the interposition of this particular assertion of the defense of usury upon retrial. Olsen’s argument is that, since the supreme court opinion never specifically alluded to the facts underlying this assertion of usury per se, and since the court concerned itself “solely and completely” with the transaction as set forth in the written agreement which did not reveal the rebate, the court never actually decided that a defense of usury predicated on this occurrence was precluded.

Olsen is correct in his assertion that the supreme court opinion did not treat, specifically, the claim that the $10,000 rebate was usurious per se under New York law. However, the opinion reveals that the court did not concern itself solely with the written agreement. The decision alludes to the actions of the parties after the consummation of the agreement:

“[I]t is clear from the intent of the parties as reflected in their actions after the consummation of the agreement, that the parties intended a ‘joint venture,’ that is: to carry out a single business enterprise for profit, for which purpose they combined their money, efforts and skills.”

305 So.2d 753 at 755. In summation, the court stated:

“[U]nder the cited New York authorities, the acceptance of the interposition of the defense of usury and instructions to the jury thereon in this action tried in Florida was error.
Since the defense of usury in the trial of this cause went to the heart of the action, and since the determination of the issues and liabilities of the parties are primarily questions of fact (with the assumption there are or may be defenses other than usury to be interposed), the cause is hereby reversed and remanded for a new trial.”

305 So.2d 753 at 756.

Although it is not abundantly clear, it appears that the basis for the holding is two-pronged: 1) The transaction was a joint venture, and New York law bars the application of the defense of usury to joint ventures; and 2) Because it depended upon a contingency, the transaction could not be usurious under New York law.

The complete record was before the supreme court. We must assume that all pertinent facts of record were taken into consideration. Rogers v. State, 156 Fla. 161, 23 So.2d 154 (Fla.1945). Additionally, Olsen reargued the question of usury per se based on the rebate in both his petition for rehearing to the supreme court and his petition for a constitutional writ in aid of jurisdiction. See footnote 4, supra.

The facts remain unchanged, and whether or not we agree with the conclusions reached, this court is without authority to alter either conclusions of fact or interpretations of law reached by the supreme court. But cf. Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965); Schempp v. Schempp, 339 So.2d 672 (Fla. 1st DCA 1976). (An appellate court which rendered the decision which has become the law of the case has the power to reconsider and correct its own decision.)

When an appellate court reverses prior decisions, the judgment of reversal is not necessarily an adjudication of anything but the questions discussed and decided. Florida East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 So. 238 (1914); Sax Enterprises, Inc. v. David And Dash, Inc., 107 So.2d 612 (Fla.1958). But when a point which was not discussed in an appellate opinion is necessarily determined by the opinion, the doctrine of law of the case is applicable. Sanders v. State, 82 Fla. 498, 90 So. 455 (1921); Rogers v. State, supra.

It is not without difficulty that we decide the opinion of the supreme court necessarily adjudicated Olsen’s right to present the specific defense of usury he urges herein. At first blush, it might appear that the opinion only dealt with Count II of the complaint, the buy-back arrangement. But repeated readings of the crucial decision, particularly the portions quoted above, lead to the conclusion that the omnibus language of the opinion “covers the field,” and leaves no room for an interpretation which does not deny cross-appellant the right to interpose any defense of usury at all.

The decision of the Supreme Court of Florida, Goodman v. Olsen, 305 So.2d 753 (1974), is the law of this case. The various assertions of error urged by cross-appellant must be rejected. The trial court correctly interpreted the mandate of the supreme court when it barred the interposition of a usury defense on Count I of the amended complaint and rendered summary judgment on the issue of the balance due on the debt.

Affirmed.

BARKDULL, Judge,

dissenting.

I dissent. The opinion of the Supreme Court of Florida, reported as Goodman v. Olsen, 305 So.2d 753 (Fla.1974), clearly shows that the contract they were referring to was the “buy back” agreement and that this constituted a joint venture to which the defense of usury did not lie. However, the Supreme Court clearly did not apply this principle to the loan because the opinion, at page 756, says that the loan was “interest free”. In this opinion, no mention was made of the $10,000.00 payment. The following references in the opinion could only apply to the “buy back” agreement:

******
“Goodman filed suit seeking not only the $90,000.00 balance remaining on the loan but further sought damages for breach of contract for failing to buy back the 25,000 shares of stock at $10.00 per share. Olsen defended by alleging that he had refused to buy back the stock only after he was advised that the contract was usurious.” [emphasis added]
* * * * * *
“The facts of this case are analogous with those in Orvis v. Curtiss, 157 N.Y. 657, 52 N.E. 690 (1899), rev’d 12 Misc. 434 [33 N.Y.S. 589] (Dist.Ct.N.Y.City 1895). In the Orvis case, H. comes to S. and represents: The business of trading in old, rare musical instruments is a very lucrative one but it takes a lot of capital which I do not have. You have the money and I have the know-how, setup and contacts. I am asking you to come into business with me. I guarantee that you won’t lose anything. You will first be repaid every cent you advance with 6% interest, and when the last item of our collection is sold, after first deducting the legitimate expenses, we will split the net profits. “Under this fact situation, the Court in Orvis held that these facts defined a partnership or joint venture and that the defense of usury was not applicable.”
* * * * * *
“Albeit, even assuming arguendo that the agreement under review was not a joint venture under New York law, the fact that the purchase-back clause, with only the possibility of damage to Olsen, created a contingency. As such, there was no certainty that the bonus to Goodman would accrue. For example, if Olsen had repaid his $150,000 and the stock increased in value, then Olsen would not have been indebted to Goodman for anything. Indeed, Olsen would have been ‘home free and ahead of the game.’ Hence, the agreement can not within reason be considered usurious. See: Cusick v. Ifshin [70 Misc.2d 564, 334 N.Y.S.2d 106, aff’d, 73 Misc.2d 127, 341 N.Y.S.2d 280], supra.” [emphasis added]
sfc sfc * * sf: ‡

I would reverse the summary judgment and return the matter to the trial court for a trial on Count 1, whereby the trier of fact can determine if the $10,000.00 exacted was in fact as a bonus for the loan and, therefore, usurious.

      . The sum demanded in the first complaint was $100,000. In an amended complaint, the sum next demanded on this count was $150,000.

      . Both sides agreed that New York law was applicable.

      . By this time, Goodman had acknowledged receipt of $60,000 from Olsen, and the judgment was rendered for $90,000, plus interest, a total sum of $133,240.

      . The precise appellate history of this case is a tangled web. After the initial trial of the cause, Goodman filed an appeal in this court which was dismissed for procedural reasons. Goodman v. Olsen, 269 So.2d 782 (Fla. 3d DCA 1972). He sought review of the dismissal in the Supreme Court of Florida. Certiorari was granted and the appeal was reinstated in an opinion authored by Justice McCain. Goodman v. Olsen, 278 So.2d 612 (Fla.1973). On remand, this court affirmed the trial court judgment in favor of Olsen. Goodman v. Olsen, 291 So.2d 71 (Fla. 3d DCA 1974). Goodman again sought certiorari in the Supreme Court of Florida. Review was granted, and the opinion so crucial to this appeal was rendered, per Justice McCain. 305 So.2d 753 (Fla.1974).
      Olsen filed a petition for rehearing with the supreme court, contending, inter alia, that conflict jurisdiction did not exist, and that the court had failed to examine the record carefully relative to the $10,000 rebate. The petition for rehearing emphasized the court’s failure to address this issue directly. Olsen’s petition was denied.
      He also sought review of the Florida supreme court opinion in the United States Supreme Court. Certiorari was denied. Olsen v. Goodman, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975).
      Pursuant to the opinion rendered by the Supreme Court of Florida, this court remanded the cause for retrial. Goodman v. Olsen, 307 So.2d 842 (Fla. 3d DCA 1975). Two interlocutory appeals filed by Olsen during the course of the second proceeding in the trial court were dismissed by this court. 321 So.2d 480 (Fla. 3d DCA 1975); 323 So.2d 64 (Fla. 3d DCA 1975). Subsequent to the dismissal of one of Olsen’s interlocutory appeals, which questioned the correctness of the trial court’s grant of partial summary judgment on Count I, Olsen filed a petition in the Supreme Court of Florida for a constitutional writ in aid of jurisdiction. This petition also delineated the circumstances under which Olsen was compelled to rebate the $10,000 and urged the Florida supreme court to clarify the meaning of its earlier opinion. The writ was denied.
      Subsequent to the rendition of final judgment in the second trial of this cause, Goodman filed an appeal from the judgment rendered pursuant to the jury verdict on Count II, and Olsen cross-appealed from the partial summary judgment in favor of Goodman. Goodman’s appeal was dismissed on March 7, 1978. Olsen’s cross-appeal is the subject of this opinion.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. John LEIGHTON, a/k/a Jock Leighton, Appellee.
    No. 78-755.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Rehearing Denied Jan. 17, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Charles W. Musgrove, Asst. Attys. Gen., West Palm Beach, for appellant.
    Joe M. Mitchell, Jr., Melbourne, for appel-lee.
   BERANEK, Judge.

The trial court dismissed an Information charging the defendant with perjury by falsely swearing in an official proceeding. We reverse. The proceeding in question was an investigation by the State Attorney’s Office to which defendant was subpoenaed to testify. He made certain statements which formed the basis for a subsequent Information charging perjury under § 837.02, Fla.Stat.

On motion of the defendant the trial court dismissed the Information holding that the presence of State Attorney investigators made the interrogation not an “official proceeding” as is required under the Statute. In so holding the trial court relied upon McCoy v. State, 338 So.2d 52 (Fla. 4th DCA 1976). McCoy involved a situation where the defendant had been subpoenaed to testify in a State Attorney’s investigation. The actual interrogation upon which the charge of perjury was based took place at the police station, solely at the hands of the police. This is not the situation presented here. In the instant situation the defendant appeared, signed a waiver of immunity and made no objection to the subpoena. The questioning was carried out by the State Attorney after putting the defendant under oath. The State Attorney was present at all times. Two investigators on the State Attorney’s staff were also present during this interrogation and these investigators asked certain questions.

We do not decide, as a matter of law, whether this procedure constituted an “official proceeding” within the meaning of the statute. It will be up to the State to prove all of the elements of an official proceeding in the eventual trial. However, we do hold that the trial court was incorrect in ruling as a matter of law that the mere presence of investigators participating in the interrogation resulted in the interrogation not being an official proceeding. The order dismissing the Information is therefore reversed and the cause is remanded for further proceedings consisted herewith.

REVERSED AND REMANDED.

LETTS, J., and KAPNER, LEWIS, Associate Judge, concur.


text:
    Karl Heinz KEHRMANN, Appellant, v. Hansotto NOLL, AMF, Inc., d/b/a Hatteras Yacht, and Merrill Stevens Dry Dock Company, Appellees.
    Nos. 77-1130, 77-1131 and 77-1901.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 8, 1979.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Charles R. Lipcon, Miami, for appellant.
    Milledge & Hermelee and Allan Milledge, Miami, for Hansotto Noll.

      Smathers & Thompson and G. Morton Good, Miami, for Merrill Stevens Dry Dock Co.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings these consolidated appeals from a final judgment entered in his favor, after a jury trial, and from an order granting, in part, appellees’, defendants below, post trial motions. The trial court, among other things, struck the jury award for punitive damages and also struck appellant’s claims for conversion and conspiracy. A final judgment was entered pursuant to the remaining jury awards. Appellee AMF, Inc., cross-appealed the final judgment entered against it.

The final judgment and order appealed in these consolidated appeals were entered after a lengthy jury trial involving the sale and repair of a yacht. The issues ran the gamut from bailment, conversion, and conspiracy to compensatory and punitive damages. The jury returned a verdict, including punitive damages, in favor of appellee. Thereafter, the trial court entered a final judgment notwithstanding the verdict, pursuant to appellees’ motions, and eliminated the award of punitive damages as not being sustained by the evidence. The primary thrust of appellant’s appeal is from this latter action by the trial court. In its cross-appeal, appellee AMF, Inc., attacks the entry of the final judgment against it.

In reviewing the extensive and complicated record in this matter, we have had the benefit of extensive and excellent briefs of the parties (no brief was filed by appellee Noll). After a careful review of the record and the application of the relevant rules of law, we are of the opinion that the trial court committed no reversible error in entering the final judgment and order appealed and cross-appealed. It is axiomatic that the burden of showing such error is on the one asserting it. In this case, the burden has not been met. Accordingly, the final judgment and order appealed are affirmed and the cross-appeal is denied.

Affirmed.


author: HUBBART, Judge.

text:
    The STATE of Florida, Appellant, v. Paul L. HERRERA, Appellee.
    No. 77-2017.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 8, 1979.

      Janet Reno, State’s Atty., and Dennis L. Curran, Asst. State’s Atty., for appellant.
    Alan I. Karten, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The central issue raised by this appeal is whether the destruction of a suspect contraband drug unavoidably consumed during chemical testing by a state’s chemist constitutes an act of suppression of evidence and a denial of due process by the state sufficient to exclude the trial testimony of the state’s chemist and preclude prosecution of the defendant for possession of such contraband drug. We hold that such destruction does not constitute a suppression of evidence and a denial of due process by the state sufficient to exclude such expert testimony or to bar such prosecution. Accordingly, we reverse.

The facts pertaining to the above issue are undisputed. On February 16, 1977, the defendant Paul Herrera was arrested for possession of heroin in Dade County, Florida. The police seized a certain suspect contraband drug from the defendant upon his arrest which was turned over to the crime laboratory of the Dade County Public Safety Department for chemical analysis. Such analysis was subsequently conducted by a chemist employed by the above crime laboratory, which test revealed the presence of heroin. The heroin in question was unavoidably consumed during such test procedures. It is clear that the chemist knew prior to conducting the test that the suspect heroin would be consumed by the test.

On March 22, 1977, the state filed an information charging the defendant with possession of a controlled substance, to wit: heroin, before the Circuit Court for the Eleventh Judicial Circuit of Florida. After entering a plea of not guilty, the defendant filed certain discovery motions seeking inter alia the production of the alleged contraband drug used by the state chemist in conducting his test herein. Such motions were granted although by that time the state chemist had already conducted the chemical test herein and the suspect contraband substance had been consumed in the testing. Nonetheless, the physical results of the test were available for defense inspection including the graph obtained from the ultraviolet spectograph test which was performed on the suspect heroin by the state’s chemist as well as the laboratory report reflecting the test results.

The defendant thereupon filed a motion to dismiss the information in this cause on the ground that the state had destroyed material evidence in the cause to wit: the contraband drug, thereby amounting to a denial of due process. The trial court took testimony on the motion wherein the state established that the heroin in question was unavoidably consumed during the chemical analysis of the substance in question. The trial court entered an order excluding the testimony of the state’s chemist herein and dismissing the information against the defendant. The state appeals.

The law is clear that the state’s intentional or negligent suppression of material evidence favorable to the defendant after a defense request for such evidence constitutes a denial of due process under our state and federal constitutions. Such suppression may call for a new trial, the exclusion of certain of the state’s evidence at trial, or the dismissal of the prosecution against the defendant. Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Farrell v. State, 317 So.2d 142 (Fla.1st DCA 1975); Johnson v. State, 249 So.2d 470 (Fla.3d DCA 1971), cert. disch. 280 So.2d 673 (Fla.1973). In that connection, however, the weight of authority in the country is that the destruction of suspect contraband drugs unavoidably consumed during chemical testing by a state chemist does not constitute an act of suppression of evidence by the state sufficient to trigger a due process violation. Partain v. State, 238 Ga. 207, 232 S.E.2d 46 (1977); Poole v. State, 291 So.2d 723 (Miss.1974); Lee v. State, 511 P.2d 1076 (Alaska 1973); State v. Lightle, 210 Kan. 415, 502 P.2d 834 (1972). Contra: State v. Gaddis, 530 S.W.2d 64, 69 (Tenn.1975).

In the instant case, we deal with the state’s destruction of a suspect contraband drug which was unavoidably consumed during a careful chemical testing process by the state’s chemist. In our view, such a chemical test was part of the state’s legitimate investigation of this case and cannot be considered in any sense improper conduct. A different case would be presented if the suspect drug had been negligently destroyed during the testing process or if an agent of the state had intentionally or negligently destroyed or lost whatever remained of the suspect drug after the testing process had been completed. See People v. Taylor, 54 Ill.App.3d 454, 12 Ill.Dec. 76, 369 N.E.2d 573 (1977). No such showing, however, has been made in this case.

We agree that it would be better practice, although not constitutionally mandated, for the state to delay the testing of miniscule quantities of suspect drugs in a drug prosecution until the defendant or his representative has been given a fair opportunity to be present during such testing. The credibility of the chemist may very well be open to question before a trier of fact if the drug is consumed during testing and is unavailable to be tested by another expert or introduced at trial as corroborating evidence. Moreover, the risk of convicting an innocent person is thereby magnified. Accordingly, this opinion does not preclude the state, if it chooses, to allow the defendant or his representative to be present during such testing in order to shore up the trial testimony of the state’s chemist. Nor do we preclude the defendant from attacking the credibility of the chemist at trial for failure of the state to give the defense such an opportunity. We merely conclude that it does not constitute a suppression of evidence and a denial of due process sufficient to exclude the chemist’s trial testimony and dismiss the prosecution if the state declines to follow such a procedure and unavoidably consumes the suspect drug during such test procedures.

The order under review is reversed and the cause remanded for further proceedings.


author: PER CURIAM.

text:
    CITY OF MIAMI BEACH, Appellant, v. EDWARD L. NEZELEK, INC., Appellee.
    Nos. 77-2550, 77-2629.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 8, 1979.

      Joseph A. Wanick, City Atty., Reichen-thal & Schillinger, Coral Gables, for appellant.
    Cypen & Nevins and Wayne A. Cypen, Miami Beach, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Golden v. Harrell, 147 So.2d 350 (Fla. 2d DCA 1962); Financial Fire & Casualty Company v. Southmost Vegetable Cooperative Association, 212 So.2d 69 (Fla. 3d DCA 1968); City of Miami Beach v. Fryd Construction Corporation, 264 So.2d 13 (Fla. 3d DCA 1972); Fletcher v. Laguna Vista Corporation, 275 So.2d 579 (Fla. 1st DCA 1973).


author: PEARSON, Judge.

text:
    SOUTHERNMOST HUMANE SOCIETY, INC., a non-profit corporation, Appellant, v. CITY OF KEY WEST, Florida, Appellee.
    No. 78-424.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Edward B. Johnson, Jr., Key West, for appellant.
    Feldman, Eden & Allen, Key West, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

This appeal arose out of two separate suits between the parties. In the first suit, Southernmost Humane Society, the appellant herein, was the defendant in an action brought by the appellee City of Key West to evict the Society from property occupied by it as a tenant at sufferance. To this suit, the Humane Society filed a defense claiming that the City was estopped from evicting the Society because the City’s inaction over a period of years had led the Society to believe that it would be allowed to continue the occupation of the property. In the second suit, the Humane Society was the plaintiff in an action against the City where it sought an injunction to bar the eviction proceedings and claimed damages for improvements that it had made to the property after having been led by the City’s inaction to believe that it would be allowed to continue to occupy the property. The trial judge found as follows:

“(a) That the SOUTHERNMOST HUMANE SOCIETY, INC. has failed to prove that the CITY should be estopped from evicting the SOUTHERNMOST HUMANE SOCIETY, INC. or otherwise remain in possession of the property described in the City’s Complaint.
“(b) That the improvements constructed by the SOUTHERNMOST HUMANE SOCIETY, INC. on the subject real property were constructed prior to the expiration of the license agreement and said improvements have been conducted by other persons for the benefit of both parties and that the value of said improvements is negligible due to depreciation and normal wear and tear, with the exception of the mobile home and the cabana attached thereto.
“(c) That the mobile home and cabana attached thereto are personal property owned by the SOUTHERNMOST HUMANE SOCIETY, INC. which said Society is entitled to remove from the premises, therefore, it is . . . ”

The factual basis for the Humane Society’s claim that the City should be estopped from taking possession of the property is that in 1952 the City entered into a ten year lease with the Society for a certain parcel of land; that after expiration of the lease, the Humane Society remained in possession of the land; that in 1970, the parties entered into a lease ending on December 1, 1973; that after that date, the Society continued to operate its pound and facilities there, and continued to invest time and money in improvements to the property; that in 1975, the Society requested a new lease; that the Society was led to believe by the City’s silence and inaction that it could continue to occupy the premises and to make further expenditures and improvements, which the City knew about; that no response was made to the request for a new lease, but that in 1977, the City commenced eviction proceedings. Thereupon, the Society alleged that due to the City’s representations, declarations, actions, conduct and inaction in permitting substantial sums to be spent on the property, equitable estoppel should prevent the eviction. Further, it is alleged that this situation would result in unjust enrichment to the City, that the City should be enjoined from evicting the Humane Society and that damages should be awarded for services performed for the City.

We recognize the fact that:

“An equitable estoppel, as affecting land titles, is a doctrine by which a party is prevented from setting up his legal title because he has through his acts, words, or silence [led] another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.” Florida Land Inv. Co. v. Williams, 98 Fla. 1258, 116 So. 642, 643 (1928).

See also Coram v. Palmer, 63 Fla. 116, 58 So. 721 (1912). However, the record in our present case supports the trial judge’s finding that the actions of the City were not sufficient to pass title to the Humane Society or to allow it to remain indefinitely without a lease. Cf. Blackiston v. Smith, 73 Fla. 25, 73 So. 839 (1917).

Further, the Humane Society failed to prove circumstances under which its eviction should be enjoined. We find, however, that the trial judge’s finding that the improvements constructed by the Society were all undertaken prior to the expiration of the licensed agreement between the parties and that their value was so negligible as to be unworthy of the assessment of damages is without evidentiary basis in this record. The only testimony of the value of these improvements was given by the Society’s witnesses and was not contradicted in the record. We, therefore, conclude that it was improper for the trial judge to fail to assess compensation for these damages if he found that the action of the City misled the Society into believing that it had a right to remain on the property for an indefinite period. Accordingly, we remand the damage issue to the trial court for further determination, with the provision that the trial judge may take additional testimony on the issue if he finds the taking of such testimony necessary or proper.

Affirmed in part, reversed in part and remanded.


text:
    TRANSCONTINENTAL REALTY CORPORATION, a Florida Corp., Petitioner, v. The Honorable Boyce F. EZELL, Jr., et al., Respondents.
    No. 78-683.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 8, 1979.
    Richard L. Lapidus, Miami, for petitioner.
    Paul, Landy, Beiley & Yacos and Huber R. Parsons, Jr., Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Alan T. Dimond, Miami, for respondents.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

By this proceeding which we now treat as a petition for writ of certiorari, we are asked to review the propriety of an order staying certain proceedings in an action for damages sounding in a tortious interference with contractual relations in the Circuit Court for the Eleventh Judicial Circuit of Florida. In our view, no legal basis has been shown for such a stay and the stay order herein constitutes a departure from essential requirements of law for which the petitioner has no other adequate remedy at law. Neale v. Aycock, 340 So.2d 535, 536 (Fla. 1st DCA 1976). We therefore quash the order under review and remand the cause for further proceedings.

It is so ordered.


author: PER CURIAM. DAUKSCH, Judge,

text:
    George CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 77-941.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1978.

      Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD and MOORE, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

In this appeal from a summary denial, without hearing, of a motion to vacate under Florida Rules of Criminal Procedure 3.850 the appellant urges us to reverse the order and require the trial court to hold a hearing to determine if his allegations are true and, if true, grant further relief.

I would reverse under the authority of Brumley v. State, 224 So.2d 447 (Fla.4th DCA 1969). The appellant has alleged he pleaded guilty to murder in the second degree and was sentenced to life imprisonment without the trial court having first determined a factual basis for his plea. I seriously doubt the appellant is correct in his urgings because the trial judge when he sentenced the appellant made a comment that “the fact (sic) of this case in the Court’s opinion came very close to constituting murder in the first degree.” My doubts, however, do not sway me sufficiently to want to depart from Brumley v. State, supra. The appellant should be given a hearing as required under Florida Rules of Criminal Procedure 3.850 and we should all be satisfied a factual basis for his guilty plea was established before the plea was accepted. The State has suggested the defendant’s petition is defective because he has not alleged any prejudice by the use of the alleged procedure. To this I say the prejudice is implicit in the allegation and it is prejudice as a matter of law.


text:
    Al P. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1414.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Rehearing Denied Jan. 10, 1979.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KEHOE , JJ.

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

   PER CURIAM.

The defendant, Al Prospery Smith, appeals a judgment of the court holding him guilty of the crimes of unlawful and felonious breaking and entering a dwelling with intent to commit a felony therein, to wit: involuntary sexual battery; and committing sexual battery without consent by coercing the victim to submit by threatening the use of force or violence likely to cause serious personal injury (no deadly weapon involved). The court entered a sentence of ten years on count 1 and a consecutive forty year sentence on count 2.

The defendant has presented four points on appeal. The first urges that the trial court erred in denying a motion for mistrial upon the grounds that prejudicial testimony of defendant’s prior incarceration was admitted into evidence. The second urges error in denying a mistrial claimed for improper closing argument of the prosecutor. The third urges that the defendant was convicted of an offense for which he was not charged in that the claimed lesser-included offense for which he was convicted is not a lesser-included offense of the crime charged. The fourth urges error in the sentence in that the maximum term authorized for the offense of sexual battery with the use of threats or force under Section 794.011(4)(b), Florida Statutes (1975), is thirty years. The State has confessed error on this last point.

Points one and two claiming error upon the failure to declare a mistrial would, if error appeared, require the reversal of the judgment and sentence on both the breaking and entering count and the sexual battery count. In each of the cases where error is claimed, we have reviewed the record to determine whether prejudicial error appears. It is clear that a mistrial should be declared in the midst of a criminal trial only where there is an absolute legal necessity to stop the trial because of prejudice to the defendant. See Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977), and cases cited therein.

Under his first point, the defendant claims the prejudice to have been the admission of commissary slips showing his signature which could have been made only in jail. He, thereupon, argues that he was so prejudiced that he could not have received a fair trial. The admission of the commissary slips was made proper by the defendant having claimed that the initials on a waiver of rights form were not his. If there was any prejudice to the defendant, we think that it could have been corrected by an instruction to the jury to disregard the testimony or to consider it only in the context of the handwriting comparison. The defendant did not request such a procedure. We think that a mistrial would have been inappropriate. See Comer v. State, 318 So.2d 419 (Fla. 3d DCA 1975); and Richardson v. State, 248 So.2d 530 (Fla. 3d DCA 1971).

The second point urging error upon the failure to declare a mistrial for claimed prejudicial remarks by the prosecutor in his closing argument is, likewise, insufficient to show reversible error on this record. The remarks complained of were comments upon the credibility of the defendant and of the evidence before the court. Florida law permits a wide latitude in the argument of counsel. See Spencer v. State, 133 So.2d 729 (Fla.1961). In view of the fact that we do not find that the argument of counsel was improper per se, and that the defendant did not move for curative or cautionary instruction to cure what he terms the prejudicial nature of the argument, we find that error is not demonstrated and that a new trial is not required on these two points.

Defendant’s third point directed to his conviction on the sexual battery count does present reversible error under the holding of this court in Hicks v. State, 362 So.2d 730 (Fla. 3d DCA 1978), filed October 2,1978. In that case, we held that a conviction of a defendant upon the offense of involuntary sexual battery with the use of threats or force of serious personal injury constitutes a conviction of a crime not charged when the information charges the defendant with an involuntary sexual battery as proscribed by Section 794.011(3), Florida Statutes (1975). In the present case, the information charges:

. . AL PROSPERY SMITH, on the 26th day of February, 1975, in the County and State aforesaid, did unlawfully and feloniously commit sexual battery upon JOHNNIE M. WALKER, without her consent . . . and in the process thereof used a deadly weapon, to wit: A KNIFE ...”

In its charge to the jury, the court instructed, as a lesser included offense, on the offense of sexual battery “by threat when the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and without the use of a deadly weapon This offense is proscribed by Section 794.01l(4)(b), Florida Statutes (1975). The jury returned a verdict finding the defendant guilty of this offense.

The offense of which the defendant was convicted constitutes the conviction of a crime not charged. The determinative question is whether this offense is a lesser included offense of the offense charged. See Brown v. State, 206 So.2d 377 (Fla.1968).

Count II of the information, which charged the defendant with sexual battery, charged the use of a deadly weapon, as above quoted. The information recites the applicable statutory provision as Section 794.021(2), Florida Statutes (1975). This is an obvious clerical error; the crime charged is proscribed in Section 794.011(3), Florida Statutes (1975). The jury returned a verdict of guilty of a separate crime, as follows:

“. . . as to Count TWO of the Information, SEXUAL BATTERY WITHOUT CONSENT, COERCES THE VICTIM TO SUBMIT BY THREATENING TO USE FORCE OR VIOLENCE LIKELY TO CAUSE SERIOUS PERSONAL INJURY, NO DEADLY WEAPON INVOLVED . . . ”

For the reasons set out in our opinion in Hicks v. State, above cited, we hold that reversible error appears, and we reverse the judgment finding defendant guilty upon count II of the information. We affirm the finding of guilt and the sentence upon count I of the information. Accordingly, the judgment appealed is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

HENDRY, J., dissenting.

      . A previous appeal in this case appears at Smith v. State, 340 So.2d 117 (Fla. 3d DCA 1976). Subsequent to that appeal, upon reversal and remand, Smith was tried a second time and a mistrial was declared when the jury was unable to agree. Smith was tried a third time resulting in the judgment and sentence here appealed.

      . Section 794.011, Florida Statutes (1975), which replaced the prior rape statute, Section 794.01, Florida Statutes (1973), became effective on October 1, 1974. Ch. 74-121, Laws of Florida. Section 794.021, which is cited in the information, does not create an offense but merely abolishes the defense of ignorance or belief as to the age of the victim. Section 794.011(3) makes it a life felony to commit sexual battery with the use of a deadly weapon or actual physical force likely to cause serious personal injury. The defendant was clearly charged under this section.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. William CRAWFORD et al., Appellees.
    No. 77-2234.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Rehearing Denied Jan. 10, 1979.

      Adams & Ward and Robert C. Ward, Miami, for appellant.
    Edward P. Swan, Miami, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final declaratory judgment holding that it had no right to cancel an automobile liability policy issued to appel-lees and that the policy was in force and effect on the date on which appellees were involved in an automobile accident. We affirm.

The pivotal question raised by appellees’ complaint was whether their automobile liability insurance policy was in force and effect on the date on which the accident occurred. Appellant’s position was that the policy had been properly canceled for the nonpayment of the premium prior to the date of the accident. Appellees took the basic position that they had received no notice of any cancellation and that the policy was in force and effect on the date of the accident. The trial court received extensive evidence on the facts relating to these positions, including the chronology of events leading to the alleged cancellation. Thereafter, the trial court entered a final declaratory judgment in which it found, among other things, the following:

“That the policy of automobile insurance issued by the Defendant, Allstate Insurance Company, to the Plaintiff, William E. Crawford, effective beginning April 6, 1974 under policy number 0-41-312050-04/6 was in full force and effect on February 2,1975 the date in which the Plaintiff was involved in an automobile accident while driving a vehicle insured under such policy of insurance.
Further, that the attempt by the Defendant, Allstate Insurance Company to cancel the foregoing policy of insurance for the period of this automobile accident of February 2, 1975 is a nullity and of no force and effect.
That the Defendant Allstate Insurance Company has no right to attempt a cancellation of the foregoing policy as described above and said policy was in full force and effect on the date of the automobile accident of February 2, 1975.”

The trial court went on to hold that the policy was in full force and effect on the date of the accident and that appellant was liable for any judgment entered against appellees under the terms of the policy. From this judgment, appellant appealed.

Appellant’s basic point on appeal is that there was no competent substantial evidence or legal theory upon which the trial court could have found that appellant’s attempt to cancel the policy for nonpayment of the premium was a nullity and that appellant had no right to attempt to cancel the policy for nonpayment of the premium.

Our review of the record, and particularly the final declaratory judgment, reveals that, inherent within the trial court’s finding that appellant had no right to cancel the policy, was the finding of fact that appellees received no notice of any cancellation pursuant to the requirements of Section 627.728, Florida Statutes (1975). The record also reveals that the trial court’s finding was supported by competent substantial evidence. Therefore, even though we might have reached a different conclusion based on the facts below, the trial court’s finding must be affirmed. See, e. g., Biscayne Manufacturing Corp. v. Sandav Corp., 323 So.2d 315 (Fla. 3d DCA 1975). Accordingly, because appellant, under the facts of this case, had no right to cancel the policy in question, the final declaratory judgment entered by the trial court is affirmed.

Affirmed.

BARKDULL, Judge,

dissenting.

I must respectfully dissent from the majority opinion filed herein. The majority, as did the trial court, held that Allstate had no right to cancel the policy issued to the Crawfords under the facts of this case. Pursuant to the contract of insurance, Allstate specifically reserved unto itself the right to cancel for non-payment of premium. This right of cancellation is further recognized by Section 627.728(3)(a), Florida Statutes (1973), which requires ten days’ notice of cancellation for non-payment of premium. Therefore, Allstate clearly had the right to cancel the Crawfords’ policy for non-payment of premium. Pursuant to its authority to cancel, Allstate mailed to the Crawfords a notice of cancellation for nonpayment of premium on December 20,1974, informing them that their insurance coverage was cancelled as of January 2, 1975 unless Allstate received payment by that date. The Crawfords alleged they never received that notice.

The applicable statute does not require receipt of notice for it to be effective, but only proof of mailing the notice. Section 627.728(5), Florida Statutes (1973). Allstate introduced certain testimony and documentary evidence showing their general office procedures as to the mailing of notices of cancellation, and contended this constituted sufficient proof of mailing so as to create a rebuttable presumption that notice had been duly mailed, which was not rebutted by the Crawfords’ denial of receipt. Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973); Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545 (Fla. 3d DCA 1974). The Crawfords’ attempted to distinguish these cases on the ground that they were not insurance cases, which require proof that there be evidence that the practice was followed in the particular instance. Jarrard v. Associates Discount Corp., 99 So.2d 272 (Fla.1957); Equitable Life Assurance Society of United States v. Wagoner, 269 So.2d 747 (Fla. 4th DCA 1972); Bernstein v. Liberty Mutual Insurance Company, 294 So.2d 63 (Fla. 3d DCA 1974). Allstate’s exhibit contains a record of mailing Cancellation Notice, which shows that a cancellation was timely and properly prepared and mailed to “William E. Crawford”, thereby satisfying the even more stringent proof of mailing asserted by the Crawfords. Thus, there can be no question that Allstate had complied with the required statutes and case law and had effectively cancelled the Crawfords’ insurance policy, notwithstanding the Crawfords’ allegation that they never received the notice. Aetna Casualty and Surety Company v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961); Allstate Insurance Company v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967).

Inasmuch as the policy was properly can-celled, the only way coverage could be afforded the Crawfords in this case would be if the policy were revived or reinstated by the insurer prior to the date of the accident. A review of the record herein shows that the trial court, based on personal observations as to quality of the mail service (which was not in evidence), chose to accept the Crawfords’ contention that they had in fact mailed the payment January 27, 1975, some six days before the accident and that that mailing constituted an automatic reinstatement of coverage from that date. The fallacy of this position is clearly shown by the simple fact that Allstate was not obligated to reinstate the policy if it chose not to do so and the unilateral act of the Crawfords, in mailing the past-due premium after cancellation, could not in and of itself effect a reinstatement.

The contract of insurance in the instant case is silent as to a right of reinstatement; therefore, Allstate is not precluded from imposing reasonable conditions for reinstatement or revival of a cancelled policy. The evidence herein shows that Allstate’s policy for reinstatement of a policy can-celled for nonpayment of premium was to reinstate the policy effective the date it received payment. The Crawfords’ payment was received by Allstate on February 5, 1975 and Allstate, notwithstanding company policy, reinstated the coverage effective February 3, 1975, the date of the postmark on the envelope which contained the overdue payment. Certainly such action was reasonable. At no time did Allstate infer that it intended to reinstate coverage prior to that date. Unfortunately for the Crawfords, the date of reinstatement was one day after the accident giving rise to this action, and they were not covered for said accident.

Therefore, the trial court erred in holding Allstate liable under its automobile insurance policy herein, and I would reverse.

      . “11. Cancellation

      *5* * * * *
      “The named insured may cancel this policy by mailing to Allstate written notice stating when thereafter such cancellation shall be effective. Allstate may cancel this policy by mailing to the insured named in the declarations at his address shown in this policy, written notice stating when not less than 10 days, if the cause be for nonpayment of premium, or 45 days, if for another cause, thereafter such cancellation shall be effective.”

      . “§ 627.728, Fla.Stat.
      % # * Ht *
      “(3)(a) No notice of cancellation of a policy to which this section applies shall be effective unless mailed or delivered by the insurer to the named insured and to the named insured’s insurance agent at least forty-five days prior to the effective date of cancellation, except that when cancellation is for nonpayment of premium, at least ten days’ notice of cancellation accompanied by the reason therefor shall be given. No notice of cancellation of a policy to which this section applies shall be effective unless the reason or reasons for cancellation accompany the notice of cancellation.”

      .“§ 627.728, Fla.Stat.
      ******
      “(5) Proof of mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.”

      . After receiving the late payment, Allstate mailed a refund notice to the Crawfords, which stated in part:
      “You have a refund credit coming * * * for the short time your policy was out of force recently. As you recall it was necessary to cancel your policy when a payment did not come in on time. After your payment was received, your protection started again.”
      * * * * * *
      “Amount of Credit $26.80
      From 01/02/75 to 02/03/75 Period Policy was out of Force”
      ******
      A check for the amount of the aforementioned refund was in fact issued by Allstate and sent to the Crawfords, who cashed the check with full notice that the check was a return of unearned premiums for the period the policy was out of force by virtue of cancellation and during the time the accident occurred, to wit: February 2, 1975.


text:
    Sidney ADLER, Appellant, v. Etta Mae ADLER and Joan Berk, Appellees.
    No. 78-284.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Rehearing Denied Jan. 10, 1979.

      Sidney B. Shapiro, Miami, for appellant.
    A. B. Freed, Miami, and Jerold Feuer, North Miami Beach, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, respondent below in a dissolution of marriage proceeding, brings this appeal from several orders and a final judgment entered by the trial court. In regard to these orders and judgment, appellant raises three points on appeal. We affirm in part and reverse in part.

Appellant, in his first point on appeal, contends that the trial court erred by permitting appellee Joan Berk to intervene as a party to the action and by allowing her to attack a conveyance of property by appellant to Judith Martinez as being fraudulent. In our opinion this point is without merit and the trial court properly allowed appellee to intervene. Regardless of the answer to the technical question of whether the main action in this cause was pending before the trial court at the time intervention was ordered, the trial court had the discretion to permit intervention in the interest of justice between the parties. Under the facts of this case, as reflected by the record, this discretion was not abused and the intervention was proper. See, e. g., Dickinson v. Segal, 219 So.2d 435 (Fla.1969); and Wicker v. Board of Public Instruction of Dade County, 106 So.2d 550 (Fla.1958).

Appellant in his second point on appeal contends that the trial court erred in entering the order dated December 2, 1976, awarding attorney’s fees to appellee Berk and in impressing a charging lien against property already conveyed by appellant. In our opinion, this was a final order; therefore, because it was not timely appealed, we are without jurisdiction to consider this point. See, e. g., Hillsboro Plantation v. Plunkett, 55 So.2d 534 (Fla.1952); and Kucera v. Kucera, 330 So.2d 36 (Fla. 4th DCA 1975).

Appellant in his third point on appeal contends that the trial court erred in awarding attorney’s fees to Jerold Feuer, attorney for the intervenor, and taxing the fees against him. In our opinion, the trial court did err in awarding these attorney’s fees. It is axiomatic that attorney’s fees cannot be properly awarded unless authorized by agreement of the parties or imposed statutorily. Based on the facts as reflected by the record in this case, the attorney’s fees were not within any statutory entitlement and the parties did not agree to this payment. Accordingly, the attorney’s fees were improperly awarded. See, e. g., Fisher v. Fisher, 318 So.2d 434 (Fla. 2d DCA 1975; and Scott v. Scott, 303 So.2d 683 (Fla. 4th DCA 1974).

Affirmed in part; reversed in part.


text:
    James E. DODSON and Lorraine L. Dodson, Appellants, v. Charles L. PERSELL and United States Fidelity & Guaranty Co., Appellees.
    No. 78-449.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Rehearing Denied Jan. 12, 1979.
    Colson & Hicks and Bill Hoppe, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The controlling question on this appeal is whether the plaintiffs in a personal injury action were entitled to the discovery of surveillance films under Florida Rule of Civil Procedure 1.280. The plaintiffs rely for reversal upon Corack v. Travelers Insurance Company, 347 So.2d 641 (Fla. 4th DCA 1977); and Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975).

This court has held that surveillance films may constitute work product and may be excluded from discovery on that basis. See Collier v. McKesson, 121 So.2d 673 (Fla. 3d DCA 1960). We hold that the refusal of the trial court to require the production of the films does not present error. See Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426 (Fla.1952); and Nationwide Insurance Company, Pinellas County v. Monroe, 276 So.2d 547 (Fla. 2d DCA 1973).

Appellants’ point claiming error upon the ground that a protective order, which prevented the taking of the deposition of an investigator who took the films, was too broad does not show error on this record. It is clear that the appellants’ sole purpose was to get the films to prevent surprise at the trial. The need for collateral information from the investigator was not presented to the trial judge and has not been adequately presented here. Cf. Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla. 1970).

A third point based on the trial court’s failure to declare a mistrial due to a comment of the appellees’ attorney does not show reversible error. See the rule stated in Marshall v. State, 54 Fla. 66, 44 So. 742. Cf. McKinney Supply Company v. Orovitz, 96 So.2d 209 (Fla.1957).

The fourth point, directed to the failure of the court to give an instruction, does not show error. See Adelhelm v. Dougherty, 129 Fla. 680, 176 So. 775, 777 (1937); and Fla.R.Civ.P. 1.470(b).

Affirmed.

      . “Even if this testimony is not of matters forming a part of the res gestae, and therefore admissible, it had already been brought out by the defendants, and they cannot object to its repetition when no harm is shown from the repetition.” 44 So. at 743.


author: LETTS, Judge.

text:
    Kenneth R. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1228.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Rehearing Denied Jan. 17, 1979.
    Richard L. Jorandby, Public Defender, and Harvey R. Schneider, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The information charged that the defendant did “unlawfully sell” a controlled substance to-wit marijuana under Section 893.-13(l)(a), Florida Statutes (1977). Pursuant thereto the defendant was convicted of a felony. We affirm.

The appeal centers round the Supreme Court case of Patterson v. State, 313 So.2d 712 (Fla.1975). In Patterson the defendant “was charged by information with possession . . . and with selling marijuana.” In construing this information the Supreme Court appeared to hold that the allegation of selling is insufficient unless it also alleges that the sale was for consideration. We agree that that is what it looks like the Supreme Court said at first blush and that being so, we would further agree with the Second District’s expression of wonder when it said “yet, how can it ever be that a sale could occur in the absence of consideration” State v. Stewart, 358 So.2d 583 (Fla.2d DCA 1978). However, it is our conclusion that a close examination of Patterson reveals that there was a factual stipulation “. . . that there was no consideration given for the marijuana.” Based on that, we agree that the Supreme Court was correct in its conclusion. Likewise we conclude that we are not trespassing upon the Supreme Court’s prerogative to change the law if we affirm this conviction.

AFFIRMED.

ANSTEAD, J. and WETHERINGTON, GERALD T., Associate Judge, concur.


author: DOWNEY, Chief Judge.

text:
    In re the ESTATE of Marie T. HARDEE, Deceased. Adelaide Morgan BESTE, James D. Hardee, Cynthia Morgan Conant, David C. Holley, Cynthia H. Holley, et al., Appellants, v. Phyllis Jean DRAHEIM, Appellee.
    No. 77-2019.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Rehearing Denied Jan. 17, 1979.
    Francis K. Buckley of Buckley & Bland, Fort Lauderdale, and James J. Robison of Robison, Curphey & O’Connell, Toledo, Ohio, for appellants.
    Wynne M. Casteel, Jr. of Cabot, Wenk-stern & Casteel, and Miller, Zachman & Balasso, Fort Lauderdale, for appellee.
   DOWNEY, Chief Judge.

This appeal involves the question of whether the appellants forfeited their rights to sixty percent of the Estate of Marie T. Hardee, deceased, by their actions which purportedly attempted to frustrate or defeat the intention and purpose of the trust of which Marie was the income beneficiary.

William D. Hardee was the income beneficiary of two trusts, provided for under the Will of each of his parents. In order to make some provision for his first wife, Jeannette, William prevailed upon the trustee of the trust established by his father’s Will to exercise the trustee’s power to invade the corpus of the trust so that William could set up an irrevocable trust providing a lifetime income to Jeannette should she survive William. This trust, known as Trust # 907, also provided that, upon the death of the survivor of William and Jeannette, the corpus would be divided equally between William’s seven nieces and nephews.

Jeannette died and thereafter William, envisioning further matrimonial involvement, sought to amend the No. 907 Trust to eliminate Jeannette’s name so as to apply to any new wife who might enter the picture. That was not done, but instead on advice of counsel Trust No. 4670 was established. The corpus of this trust was funded by assignments from six of the seven beneficiaries of the No. 907 Trust to the 4670 Trust. The income from the 4670 Trust was payable to William and his new wife, Marie, for life.

William eventually became dissatisfied with the foregoing trust arrangements and instituted litigation in the Probate Court of Lucas County, Ohio. As a result of that litigation and ensuing negotiations between the interested parties William’s claims were settled resulting in:

1) A decree in the proceedings relating to the trust under the will of William’s father, affirming the validity of Trust No. 907 and of the assignments by the nieces and nephews of their interests to Trust No. 4670;
2) A decree in the proceedings relating to the trust under the will of William’s mother, authorizing the distribution of the corpus to him, the value of which was approximately $350,000;
3) An agreement (referred to by appellants as the Recapture Agreement), whereby William and Marie had the right to consume all of the $350,000 from the mother’s trust, but whatever remained upon the death of the survivor of William and Marie was to be returned to the nieces and nephews who were beneficiaries of the remainder of the trust in William’s mother’s will. That was to be accomplished by the survivor leaving 60% of his or her estate to the nieces and nephews.

The Recapture Agreement also provided, among other things, that a substantial and material consideration for making the agreement for the benefit of the nieces and nephews was an adjudication that the 907 Trust and the 4670 Trust and the assignments made by the nieces and nephews of the interests in the 907 Trust and the 4670 Trust were valid and would assure Marie of the payment of the net income “therein provided for her” without any action or attempt on the part of the nieces and nephews to defeat or frustrate that intention. It was further provided that in the event any of the nieces and nephews opposed the payment and distribution of said income to Marie or at any time made an attack on either the trust or the assignments, or accepted the benefits of such action then the benefits provided by the Recapture Agreement would cease and be null and void.

The corpus of the mother’s trust was distributed to William and Marie. As fate would have it, all of the Husted nieces and nephews predeceased William. It will be remembered (see footnote 1, supra) that the interest of the Husted nieces and nephews in the income and remainder of the 907 Trust was contingent upon their surviving William and Jeannette. Jeannette died in 1961. Upon advice of counsel, that the interests of the Husted nieces and nephews had failed, the trustees of the 907 Trust paid over to the 4670 Trust only 2/rths of the 907 Trust income. In due course, the trustees of the 907 Trust instituted an action in Ohio to determine the rights of the parties to the trust income. The Ohio court held that the interests of Adelaide M. Best and James D. Hardee were vested interests upon the death of William Hardee and that the interests of the Husted nieces and nephews were remainder interests contingent upon their surviving both William and Jeannette Hardee. Jeannette had died in 1961 and the court found that all of the Husted nieces and nephews predeceased William.

When the trustee filed its complaint to determine how much income should be paid to Marie the Husted nieces and nephews were made parties, -but they never filed an answer in the litigation until after Marie had died.

Marie left a last will and testament in which in pertinent part she acknowledged the Recapture Agreement which she and William had executed at the time the 4670 Trust was created. Thus, in Item III of her Will Marie left 40% of her estate to her own niece and 60% of the estate to her husband’s nieces and nephews. However, Marie specifically provided that if any of said nieces and nephews had violated any of the terms of the Recapture Agreement, or received the benefits of such a breach, the bequest for such individual was revoked and can-celled. The Will also gave her personal representative the power to determine whether there had been any such breach. Armed with that authority, the appellee, as personal representative, brought a petition in the Broward County Circuit Court to determine the rights of the parties under the Will of Marie T. Hardee, deceased.

The trial judge made numerous findings of fact, most pertinent among which are:

“8. That the consideration for the agreement of June 18, 1964 failed when the trustee, for whatever reason, refused to pay MARIE T. HARDEE all of the income of ‘TRUST # 907’, less one-seventh thereof, through the medium of ‘Trust
# 4670’.
“9. The agreement of June 18, 1964 was breached by the nieces and nephews and/or their heirs, or some of them, by frustrating and/or defeating the intention of William D. Hardee and MARIE T. HARDEE which clearly was that Marie was to receive all of the income of ‘Trust
# 907’ less one-seventh thereof. That said persons attacked the validity of ‘Trust # 907 and ‘Trust # 4670’ and the assignments thereto and accepted the benefits of such attack.
“10. That by reason of the actions afore-stated the forfeiture of rights provision (Section 6) of the agreement of June 18, 1964 became effective and stands in the place and stead of that provision of the Will of MARIE T. HARDEE which bequeathed sixty percent of her estate to the nieces and nephews of William D. Hardee and/or their heirs.
“11. The Personal Representative, Phyllis Jean Draheim, has followed the provisions of the Will by declaring a forfeiture and applying to this Court for a determination pursuant to the power given to her in the Will of MARIE T. HARDEE, Deceased.”

The trial judge then held that the provisions of the Recapture Agreement were breached and the appellants had forfeited their right to 60% of Marie’s Estate and the estate should pass pursuant to other provisions of Marie’s Will.

We disagree with the learned trial judge and reverse the judgment appealed from.

As the trial court found, William Hardee created the 4670 Trust “in return for six of his seven nieces and nephews each assigning all of his or her right, title and interest in “Trust 907” to “Trust 4670.” In pertinent part the No. 4670 Trust provided that “If the trust continues during the lifetime of a wife of Donor, in accordance with the first sentence of Article III, Trustee shall during the lifetime of such wife pay to her or for her benefit all of the net income of the Trust Estate in convenient installments . .” The net income from 4670 Trust after the death of William Hardee did not include the income attributable to the four Husted nieces and nephews because, upon their demise prior to the death of William Hardee, the portions of the 907 Trust corpus intended for them passed instead to The Toledo Trust Company as can be seen from the clear wording of the quote from the text set forth in footnote 1 of this opinion.

As we see it, the trustee of the 907 Trust would have been derelict in his duty had he continued to pay the income from the four Husted interests in Trust 907 to the 4670 Trust after William’s death. Filing suit in the Ohio Common Pleas Court for a determination of the rights of the parties to the income from the 907 Trust and naming the appellants as parties is not a breach of the Recapture Agreement. After William’s death his widow, Marie, simply had no right to receive the four-sevenths interest of the Husted nephews and nieces as the Husteds’ interest had lapsed.

Many other points and issues are suggested by appellants for consideration. However, in view of our determination on this main issue we are not called upon to treat each of those points.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

CROSS and ANSTEAD, JJ., concur.

      . The No. 907 Trust provides:

        "Section 2.2 Final Distribution

      “Upon the death of the survivor of William D. Hardee and Jeannette B. Hardee this trust shall terminate, and Trustees shall then divide the
      Trust Estate into seven (7) equal shares and shall distribute the Trust Estate as follows:
      “One share thereof to Adelaide Morgan Beste, her heirs and assigns.
      “One share thereof to Cynthia Morgan Co-nant, her heirs and assigns.

        “One share thereof to James D. Hardee, his heirs and assigns.
      “One hundred seven one hundred thirty-fifths (107/i35ths) of one share thereof to Jean Hust-ed Holley if she is then living, and the remaining twenty-eight one hundred thirty-fifths (28/i35ths) of said share, or all of said share if the said Jean Husted Holley is not then living, to The Toledo Trust Company, Trustee, and its successors in trust, under agreement dated May 26, 1955, between Florence Hardee and The Toledo Trust Company known as Trust No. 3097.”
      Language identical to the last portion follows as to the remainder interests of Mary Husted Lucas and Trust No. 3092, of Helen Husted Ward and Trust No. 3094, and of William H. Husted and Trust No. 3093.


text:
    Scott CHARLTON, Petitioner, v. Ralph B. TENNANT and Gordon Shirah, Respondents.
    No. 78-1530.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 1978.
    J. Bert Grandoff of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcom-mer, P. A., Tampa, for petitioner.
    Tom Whitaker, Tampa, for respondents.
   PER CURIAM.

Scott Charlton petitions for review of an order of the circuit court denying him access to tax returns and business statements of respondents. We grant writ of certiorari and reverse upon the following facts:

Scott Charlton sued Ralph Tennant and Gordon Shirah for invasion of privacy and libel. He demanded punitive damages. Thereafter Charlton served respondents with a notice of request to produce, pursuant to Fla.R.Civ.P. 1.350, calling upon them to produce for inspection or copying income tax returns, personal or business profit and loss statements and balance sheets for the years 1975 through 1978. Tennant and Shi-rah failed to produce the items.

At a pretrial hearing the trial judge considered Charlton’s motion to compel production of the documents and held that he was only entitled to receive Tennant and Shi-rah’s authenticated statements of net worth. Charlton’s timely petition to this court followed.

The financial resources of a defendant in a libel suit are an appropriate subject of discovery when punitive damages are properly sought. Spencer Ladd's, Inc. v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964), affirmed 182 So.2d 402 (Fla.1975). There is no reason to place financial worth as an issue in a special category with regard to the discovery process. See Donahue v. Herbert, 355 So.2d 1264 (Fla. 4th DCA 1978). Of course, discovery of any type can be limited by protective order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. See Fla.R.Civ.P. 1.280(c).

The cause is remanded to the trial court for further proceedings consistent with this opinion.

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


text:
    FERRO METAL & CHEMICAL CORPORATION, International Marine & Development Corporation, Perro Leasing Corporation and Nationwide Realty Corp., Appellants, v. DEPARTMENT OF REVENUE of the State of Florida, Appellee.
    No. 77-2506.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1978.
    Schwartz, Nash, Heckerling, Tescher, Morgenstern & Kantor and Robert E. Pa-noff, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and William D. Townsend and Edwin J. Stacker, Asst. Attys. Gen., Tallahassee, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   OPINION ON PETITION FOR REHEARING GRANTED

PER CURIAM.

This appeal was heard by the court and opinion filed September 12, 1978. By that decision, we affirmed the judgment of the trial court. A timely-filed petition for rehearing properly brought to the court’s attention the opinion of the Supreme Court of Florida in S.R.G. Corporation v. Department of Revenue, State of Florida, 365 So.2d 687 (Fla.1978). At the time of oral argument and the preparation of the opinion in this case, the parties and this court were unaware of the above Supreme Court decision, although the parties were aware of the S.R.G. case in the Supreme Court and agreed that the Supreme Court’s determination of that cause would, in all probability, be determinative of this appeal.

We have determined that the S.R.G. decision is, in fact, determinative of this cause and, under the holding in the Supreme Court opinion, the summary judgment of the trial court in this case must be reversed. Accordingly, the opinion of this court of September 12, 1978, is withdrawn and the certificate of this court issued as a means of bringing this matter within the jurisdiction of the Supreme Court of Florida as one passing on a question of great public interest is withdrawn.

The summary judgment appealed is reversed and the cause is remanded to the trial court for further proceedings in accordance with the opinion of the Supreme Court of Florida in S.R.G. Corporation v. Department of Revenue, State of Florida, 365 So.2d 687 (Fla.1978).

Reversed and remanded.


text:
    Larry LONERGAN, a/k/a Lawrence D. Lonergan, Appellant, v. Ida O. LIPPMAN, Sara O. Morgan and Anne O. Grunthal, Appellees.
    No. GG-469.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1978.
    C. Ray Greene, Jr., of Greene & Greene, Jacksonville, for appellant.
    Arnold H. Slott, of Glickstein, Crenshaw, Glickstein, Fay & Block, Jacksonville, for appellees.
   PER CURIAM.

Appellant appeals the trial court’s grant of a final summary judgment of mortgage foreclosure to appellees. We agree that there was error and reverse. The facts are complex. Appellees were the owner/landlords and Sandpiper Properties, Inc., the tenants of a building under a lease which expired December 1,1975. This lease granted Sandpiper an option to renew the lease for 50 years. Sandpiper subleased part of the leased premises to appellant for his business for a term expiring on November 30, 1975; this sublease contained an option to renew for 25 years if Sandpiper renewed its lease for at least 25 years. In 1970, Sandpiper exercised its right to renew the primary lease for 50 years. In February, 1974, however, Sandpiper conveyed its leasehold estate to OMAA Investments, Ltd., expressly subject to appellant’s sublease. On the same day, appellees conveyed their fee interest to OMAA and took back OMAA’s note and purchase money mortgage. After OMAA thus acquired both Sandpiper’s primary lease and appellees’ fee — the stated purpose of which was to merge the lease into the fee — appellant remained in possession under his sublease and made monthly lease payments to OMAA. On January 23,1975, within the term of the sublease expiring December 1, 1975, appellant gave OMAA notice that he chose to renew for 25 years, according to the terms of the sublease. In August 1976, after OMAA defaulted in payment of its purchase money note to appellees, appellees brought suit to foreclose their mortgage against all other interests.

OMAA did not contest the foreclosure of its fee interest. The only significant issue is whether the lien of appellees’ purchase money mortgage is superior to appellant’s asserted right to a renewed leasehold term for 25 years following December 1, 1975. Upon appellees’ motion for summary judgment, the trial court found as a matter of law that the lien of appellees’ mortgage is superior to appellant’s extended leasehold claim because the primary lease, previously held by Sandpiper, was merged in OMAÁ’s fee by its conveyance to OMAA, thereby dissolving the extended 50-year leasehold term previously opted for by Sandpiper and destroying the prerequisite for appellant’s later exercise of a right to renew his sublease for a 25-year term following December 1, 1975. On rehearing the trial court stated the rationale of its summary judgment for appellees as follows:

“1. In February, 1974, there was a merger of the primary leasehold estate into the fee simple title of defendant, OMAA Investments, Ltd., extinguishing the primary lease subject only to the right of possession of the sub-lessee and defendant, Larry Lonergan, until December 1, 1975, being the end of the term of the sub-lease.
“2. Said merger acted to repudiate and negate the primary lessee’s previous notice of exercise of option to renew the primary lease.
“3. The said sub-lessee’s attempt to renew his sub-lease by notice given on or about January 22, 1975, being after the said merger, was ineffective, and neither the primary lease nor the sub-lease was subject to renewal after the aforesaid merger.”

Appellant claims on this appeal that merger does not occur when there is some intervening estate or when the interests of third parties are adversely affected. Therefore, he claims, the fact that OMAA Investments obtained the leased fee from appellees did not extinguish his (appellant’s) right to renew his sublease. After a careful review of the record and relevant authorities, we agree that the doctrine of merger was improperly and inequitably applied on these facts. It is clear that Sandpiper exercised its right to renew the primary lease in 1970, four years before the leasehold and fee converged. This exercise of the renewal option vested in appellant the right to renew his sublease under the terms of the sublease. We do not believe the subsequent transaction between appellees and OMAA Investments had the effect of robbing appellant of his vested right to renew. While it is true that normally a tenancy for years merges into and is extinguished by a freehold estate when they are held by one person at one time, the general rule is that merger will not be allowed where it defeats or prejudices the rights of innocent third parties, or where there is an intervening estate. See Goldberg v. Tri-States Theatre Corp., 126 F.2d 26 (8th Cir.1942); Mobley v. Harkins, 14 Wash.2d 276, 128 P.2d 289 (1942). See also 28 Am.Jur.2d, Estates, § 381-82 and cases cited therein; 31 C.J.S. Estates § 124 and cases cited therein; and Annotation, Merger of Estate for Years in Fee or Lesser Estate, 143 A.L.R. 99, 103 (1943).

We do not hold that there are no equities which would permit the chancellor, upon a trial, to subjugate appellant’s asserted leasehold interest to the lien of appellees’ mortgage. It may be that appellees conveyed the fee to OMAA, and took back OMAA’s purchase money mortgage, without notice of appellant’s then unrecorded sublease and its provision for renewal for 25 years beyond its term. Yet Sandpiper’s conveyance of the primary leasehold to OMAA, recorded almost simultaneously with OMAA’s mortgage to appellees, recited the existence of appellant’s lease. Appellant’s occupancy of the premises afforded further notice. We do not further labor the point that factors may appear upon a trial which vary the result. On this record, we hold only that summary judgment for appellees was erroneously entered.

REVERSED.

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


author: SMITH, Acting Chief Judge.

text:
    Eugenia S. BRANNEN, Appellant, v. SOUTHEAST BEACH STATE BANK, Appellee.
    No. II-494.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1978.
    Daniel S. Dearing, Tallahassee, for appellant.
    Bill R. Hutto of Syfrett & Hutto, Panama City, for appellee.
   SMITH, Acting Chief Judge.

Appellant, resisting the bank’s action on a promissory note given by appellant and her deceased husband, urges that the note, bearing the statutory maximum interest rate of ten percent annually, was rendered usurious by the bank’s collection from the makers of an additional $317.73 for the payment of the intangible tax which the State levied on the value of the note against the owner bank. Sections 199.-032, .052, 687.03(1), Florida Statutes (1977). The trial court held that the anticipated intangible tax payable by the bank was, like a documentary stamp tax, an actual and reasonable expense directly attributable to the loan, and so was subject to contractual assumption by the borrowers without regard for statutory interest limits. We agree. See Financial Federal Savings and Loan Ass’n v. Burleigh House, Inc., 305 So.2d 59 (Fla. 3d DCA 1974).

No error appears in the trial court’s decision rejecting, upon a trial, appellant’s affirmative defense of estoppel. See Lopez v. Lopez, 90 So.2d 456 (Fla.1956).

The judgment is AFFIRMED. The bank’s motion for an allowance of fee money for its counsel’s appellate services is GRANTED in the amount of $1,000.

ERVIN, J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.