text:
    The STATE of Florida, Appellant, v. Anthony HORNE, Appellee. The STATE of Florida, Appellant, v. Johnny YOUNG, Appellee.
    Nos. 80-1527, 80-1976.
    District Court of Appeal of Florida, Third District.
    May 20, 1981.

      Janet Reno, State Atty. and Ira N. Lo-ewy, Asst. State Atty., for the State in Case No. 80-1527.
    Brown, Huysman & Matthews and Michael J. Wrubel, Miami, for Anthony Horne.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for the State in Case No. 80-1976.
    James P. Ryan, North Miami, for Johnny Young.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

These cases, which we dispose of in a single opinion, are state appeals of orders dismissing criminal informations upon the granting of sworn motions filed under Fla. R.Crim.P. 3.190(c)(4). Egregious error has been presented and both orders are reversed.

In each case, the record before us clearly shows both (a) that the sworn motion did not itself demonstrate that “the undisputed facts do not establish a prima facie case of guilt against the defendant” so that dismissal would not be justified even if the state had merely demurred or not responded at all to the motion, and (b) that, in fact, the prosecution filed an appropriate sworn traverse which, under Fla.R.Crim.P. 3.190(d), mandatorily required that the motion be denied. While it is indeed regrettable that it is appropriate so to characterize the rulings below, they may thus be regarded only as embodying inexplicable and totally unjustified failures or refusals to follow the law. They are therefore reversed for reinstatement of the informations and further consistent proceedings.

In order to minimize the delay in the prosecution of these cases which has already unwarrantedly occurred, no motions for rehearing will be entertained and the mandates shall issue forthwith.

Reversed and remanded.

        .Horne is an armed robbery case. The defendant was discovered hiding under a bed after escaping, in a hail of gun fire, from a fast food establishment which — along with an unknown coperpetrator who was not apprehended — he had held up while wielding a handgun. The sworn motion was based on an affidavit by Horne that the accomplice had been a hitchhiker whom he had picked up shortly before the robbery and who had “coerced” him to commit the crime at the point of a gun. The dismissal was apparently based on the conclusion that the accomplice had disappeared, and that the state could not therefore rebut this “explanation,” which was thus to be accepted as a matter of law notwithstanding that the circumstances of the offense showed completely to the contrary. It is unnecessary to dwell upon the unsupportability of this ruling.
      In Young, the defendant was arrested soon after the burglary of a retail store. The sworn motion was based on the contention that the officers who observed the offenders inside and coming out of the store supposedly could not then identify Young as one of the burglars. The depositions of the officers, which were relied upon, do not support that assertion. Moreover, the motion does not even suggest that the identity issue is “undisputed,” as required to support a “(c)(4)” motion. Finally, the state’s traverse specifically stated that the officers in question could and would identify the defendant.

      . E. g., State v. Alford, 395 So.2d 201, 202 (Fla. 4th DCA 1981); State v. Evans, 394 So.2d 1068 (Fla. 4th DCA 1981), and cases cited; State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980), and cases cited; State v. Lawler, 384 So.2d 1290 (Fla. 5th DCA 1980).

      . State v. Wright, 386 So.2d 583 (Fla. 4th DCA 1980); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980).


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

license: Public Domain

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. William BURNETTE, Appellee.
    No. YY-223.
    District Court of Appeal of Florida, First District.
    May 26, 1981.
    Rehearing Denied June 24, 1981.
    H. Reynolds Sampson and Margaret-Ray Kemper, Tallahassee, for appellant.
    Cary A. Hardee, of Davis, Browning & Hardee, Madison, for appellee.
   ROBERT P. SMITH, Jr., Judge.

This case tests the proper construction of our mandate and opinion in Dept. of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980). In this interlocutory appeal, the Department seeks relief from a circuit court order of contempt entered after remand, upon a finding that the Department had willfully failed to comply with final judgment as modified by our decision. Because we find the Department did not violate our decision and mandate, properly construed, we vacate the contempt order.

This dispute came before us previously after the Madison County circuit court enjoined the Department within 90 days to stop use of a water drainage system subjecting Burnette’s land to periodic flooding or to condemn the property as “permanently taken” through eminent domain. In reviewing this injunction on appeal, this court specifically reversed the finding that the property, acquired by Burnette long after the offending drainage pattern had been established, had been “taken” by the State so as to require purchase in eminent domain. We did conclude, however, that the State was properly enjoined to end the casting of waters onto the Burnette property.

Accordingly, we affirm the portion of the circuit court judgment enjoining “the Department’s continued use of the . . . drainage system in such a way to burden this land.” 384 So.2d at 922. However, our opinion went further. First, we indicated our concern that the Department consider the interests of other area landowners, noting that if restoration of the old drainage pattern would flood a junior college since built, the Department might need to consider the alternative of eminent domain proceedings to acquire “some land or easements,” not necessarily Burnette’s for the revised drainage pattern. Secondly, we emphasized that “the manner and method” of relieving the Burnette flooding, through means including eminent domain if necessary, was “for the Department to determine in the exercise of its lawful powers.” 384 So.2d at 923.

Our mandate commanding the circuit court to conduct further proceedings in accordance with this prior opinion went down on July 14, 1980. Apparently reading our opinion as an endorsement of the 90-day compliance period in his original order, the circuit judge, 99 days after issuance of the mandate, held the Department in civil contempt, on Burnette’s motion, and set compensatory fines of $1,000 a day. Finding the Department in “willful” violation of the judgment, the judge ordered fines to continue until the Department corrects

the present diversion of surface water onto the land of Plaintiff ... or in the sole discretion of [the] DEPARTMENT OF TRANSPORTATION [acquires] the fee simple title to Plaintiff’s said lands, either by voluntary purchase, or by entry of an appropriate Order of Taking in a condemnation proceeding vesting title to Plaintiff’s said lands in the ... [Department], as delineated as an alternative remedy to it by said District Court of Appeal.

Faced with daily accumulation of fines potentially payable from the public treasury should this appeal fail, the Department then hastily instituted condemnation proceedings for Burnette’s entire 100-acre tract in hopes of purging the contempt as soon as possible. Those proceedings since came to a halt when the circuit court dismissed the petition for condemnation for want of an. appropriate Department resolution of necessity.

In considering the circuit court’s contempt order, we note primarily that we disagree with the characterization of the Department’s action as “willful.” We are aware that, despite language to the contrary in a few cases, willfulness generally is not required to support a finding of civil contempt. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599, 604 (1948). However, the circuit judge here nonetheless predicated his contempt order on the conclusion that the Department’s failure to end the drainage problem was willful. We find this view unsupported by substantial competent evidence in the record. Testimony before the circuit judge in October 1980 from a veteran Department official with 45 years’ experience in road operations indicated that the Department had surveyed five alternative solutions to the drainage problem since our July mandate; at the time this testimony was given, the Department also was moving to implement the alternative offering engineering, environmental and cost advantages over the others. While the Department, like other fabled slow-moving bureaucracies, conceivably may have conducted and completed this survey more promptly, we see no willful failure to act.

More basically, however, we must correct the circuit court’s impression that our opinion and mandate held the Department to a 90-day deadline after July 14 for completed correction of a drainage problem created by a series of events, not all the responsibility of the Department, more than a decade earlier. Such a requirement, under the realities of this case, would commit the Department to the very course our prior decision emphasized it was not required to take. This is so because the only solution the Department conceivably might have implemented within 90 days — and even then with a maximum of cooperation from all parties — was condemnation of Burnette’s entire 100-acre tract in eminent domain proceedings.

Our prior decision explicitly found no taking of the 100-acre tract, so the expenditure of public dollars to purchase Burnette’s entire property would be highly problematic, and was recognized by the Department as problematic. The evidence indicates that only 50 acres of the tract is low-lying, and it is not altogether clear how much of that land, and which parts of it, would be necessary to accommodate the excess drainage. And even if the Department could have identified and condemned an appropriate portion of the land within 90 days, our decision clearly states that the choice of means to correct the situation was committed to the Department’s expertise. We did not, as the circuit judge seems to have put it in his contempt order, require an eminent domain purchase of the entire tract as an “alternative remedy” to stopping the flooding.

Using the expertise we asked it to employ, the Department concluded that the best alternative called for continuing a storm sewer line west into an existing water storage basin, not on Burnette’s land, which would be enlarged by excavation to 10 or 11 acres. This alternative, the Department’s road operations veteran told the circuit court, would take eight months to implement under an optimistic schedule for condemnation or purchase of the storage basin property, letting of bids and accelerated construction. Normally, he added, such a project takes five years to complete. And even under the accelerated eight-month schedule, the Department faced uncertainties due to the need to use an existing dry well for the revised drainage project, a use requiring a permit from another State agency over which the Department has no control. Moreover, the possibility of intervention by third parties in any permitting process further complicates any fixed schedule of work. In light of a more realistic timetable for achievement of our directive, our opinion should not have been read as insisting on a 90-day deadline.

We, or course, have authority to take corrective action where we find the trial court has departed from the directions of our mandate and opinion. E. g., Robinson v. Gale, 380 So.2d 513 (Fla.3d DCA 1980); Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So.2d 232 (Fla.3d DCA 1979). This authority might be contrasted to more limited power to correct mandates for errors of law to prevent miscarriage of justice. Cf. Westberry v. Copeland Sausage Co., 397 So.2d 1018 (Fla. 1st DCA 1981). We quite understand that our prior opinion may have perplexed the trial court, given the decision’s emphasis on allowing the Department to determine appropriate methods of correcting the drainage problems and its concurrent oversight in failing to excise, more explicitly, the 90-day time period from the original judgment. Where the language of an opinion is susceptible to various inferences or even contains self-contradictions on its face, however, a district court may properly indicate what was intended by its prior decision. E. g., Hurt v. Virginia Heights Ass’n, 244 So.2d 483 (Fla. 4th DCA 1971); Klein v. Newburger, Loeb & Co., 153 So.2d 344 (Fla.3d DCA 1963). At an appropriate time, an appellate court in fact has an obligation to trial courts to clarify its opinions. Maeder v. Grayson, 227 So.2d 308 (Fla.3d DCA 1969). See also Castlewood International Corp. v. Wynne, 305 So.2d 773 (Fla.1974).

Accordingly, we emphasize that our prior decision requires the Department, within a reasonable period of time consistent with required planning, land acquisition, permitting and construction, to end this drainage flow burdening Burnette’s land. In doing so, the Department must necessarily consider whether by moving the drainage path off Burnette’s land under any solution it will tortiously cast waters again on the land of some other; therefore, we reject appel-lee’s argument that the Department should solve Burnette’s problem individually by returning the drainage path to the north and subjecting the junior college to possible flooding.

We underscore this last point by emphasizing again that Burnette is not the only one with a legitimate interest in what happens to the existing drainage path, and that the Department is not the sole creator of this problem. The junior college and a housing development behind it, a nearby shopping center and indeed the City of Madison are, of course, legitimately concerned about alterations in a drainage pattern that has existed since 1969. This is a community problem in which Burnette’s specific desire to develop his land is a significant factor but not the only factor. When Burnette assembled this tract through purchases in 1972 and 1977 with a townhouse development in mind, Burnette knew full well, or should have known, of the problem of which he now complains so bitterly. The Department must now rectify the problem surely; but Burnette, having been forewarned, must not now be permitted to insist on frantic governmental action, spurred by fines against the public treasury, aiding Burnette at the expense of others.

We stress also that the Department must establish and comply with a reasonable but expeditious schedule and must aggressively pursue expedited procedures where available. Foot-dragging interrupted by periodic spurts of activity in anticipation of review by this court or any other should not be tolerated. The trial court certainly retains its full authority to exercise its contempt powers, and it may profitably use those powers, if necessary, to compel specific officials within the Department to act, to report on progress, to meet schedules and so forth. The circuit court must use its good judgment in determining what is reasonable, without requiring the Department to perform the impossible or to implement a hastily conceived solution to satisfy an arbitrary deadline. Ten days after its receipt of this decision, and without regard for the normal time for rehearing, the Department will report to the circuit court, in writing and under oath of the Department head, what it has accomplished within the last 90 days toward alleviating the problem, when that action was taken, and what further action the Department plans within the next 30 days.

Since we find the contempt order based on an erroneous interpretation of our prior decision, the imposition of compensatory fines is also invalid. The contempt order entered by the circuit court is VACATED.

ERVIN, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

The trial court correctly ruled that the Department of Transportation (DOT) was guilty of civil contempt in failing to comply with this court’s order that it cease flooding appellee’s property. Civil contempt consists of the failure to perform an act ordered by a court, which is within the power of the party to perform, to the injury of another party for whose benefit the act is required. The United States Supreme Court, in McComb v. Jacksonville Paper Company, held that the purposes of civil contempt are two-fold: to coerce the derelict party into compliance with court orders, and to compensate the prevailing party for losses or damages caused by the other’s noncompliance.

The DOT does not deny that it has the present ability to comply either by restoring the original natural drainage or by condemning property needed as a drainage basin with the present system in operation. The DOT made a voluntary decision not to adopt either of these available solutions.

The excuse given for noncompliance with the order of this court is that the DOT seeks a solution for all the drainage problems in the entire area, a solution not limited to appellee’s property. All indications are that there will be numerous, time-consuming obstacles to overcome during the DOT’s search for this mythical perfect solution. Meanwhile, the private landowner must continue to bear the loss of use of his property, for it continues to serve as the terminus for the storm sewer system of the City of Madison.

I do not agree with the majority that clarification of our prior decision is needed. There has been no misinterpretation by the trial court. Nor is further time required for the DOT to comply. This court has ruled that the DOT caused flooding by plugging the culverts which previously allowed the waters to follow their natural drainage path away from appellee’s land and by the addition of the runoff from 103 acres of improved land in the City of Madison, which the DOT caused to be carried through a 54-inch culvert and dumped onto appellee’s land. By opinion dated June 11, 1980, this court ordered the DOT to cease flooding appellee’s land. Department of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980). More than 90 days after the issuance of this court’s mandate, the trial court held a hearing on appellee’s motion for contempt and determined, on the record before him, that only by the imposition of a daily fine could the Department be persuaded to take steps to cease the flooding. The majority now takes from the trial court the only available method to enforce this court’s order and allows the Department to continue trespassing until such time as it sees fit to do otherwise. No date is set by which the flooding must cease and no compensation provided for the landowner, who is again denied deserved relief.

In Aspira of New York v. Board of Education of City of New York, 423 F.Supp. 647, 654 (S.D.N.Y.1976), the federal court, in adjudging city officials guilty of contempt, made a ruling which could well have been made here:

[Djefendants have fallen far short of requisite diligence.... They have allowed deadlines to pass without advance announcements or volunteered explanations, awaiting complaint by the plaintiffs before even treating with the court concerning the delinquencies.... They have displayed an evident sense of nonur-gency bordering on indifference contrasting vividly with the spurt of activity on the heels of plaintiffs’ motion for a finding of contempt.

Without enforcement, there is no remedy, judgments are “advisory,” and judicial power a “mockery,” as held by the Florida Supreme Court in Seaboard Airline Railroad v. Tampa Southern Railroad Company, 134 So. 529, 533 (Fla.1931):

Without it [contempt power], such courts are mere boards of arbitration, whose judgments and decrees are only advisory.
If a party can make himself a judge of the validity of orders which have been issued for the protection of property rights, and by his own act of disobedience can set them aside, then are the courts impotent, and what the Constitution of the state ordains as the judicial power becomes a mere mockery.

I dissent.

      . 17 C.J.S. Contempt § 6, and cases cited therein.

      . 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949). See also Jim Walter Resources v. Intern. Union, Inc., 609 F.2d 165, 169 (5th Cir. 1980).

      .Restoration of natural drainage by unplugging culverts would allow the excess waters to drain into a series of wet-weather or retention ponds existing in the vicinity of the junior college, as testified by Jay Brown, DOT’S witness at the contempt hearing:

        [T]he normal outlet has been all the time, been to the series of, of wet-weather ponds or retention ponds located in the general vicinity of what is now the junior college.
      No explanation for the DOT’S refusal to restore this natural drainage appears.

      . The federal courts have not abdicated their responsibility to require that governmental entities comply with court orders protecting the rights of individuals: Hadnott v. Amos, 325 F.Supp. 777 (M.D.Ala.1971), Secretary of State found guilty of contempt and fined $5,452; Palmigiano v. Garvahy, 448 F.Supp. 659, 672 (D.R. 1.1978), civil contempt and $1,000 fine imposed for each day of noncompliance by officials, the court holding:
      The Court concludes that a fine is necessary because the Court’s deference to the duly-appointed state officials has not persuaded the Department of Corrections that the August 10 order must be complied with, with all the speed that the Department’s resources permit . . .;

        Powell v. Ward, 487 F.Supp. 917 (S.D.N.Y.1980), civil contempt $5,000 fine on entry of order and $1,000 thereafter for each day of noncompliance; Hamilton v. Love, 358 F.Supp. 338 (E.D. Ark. 1973), $500 fine for civil .contempt of county officials.


author: DANIEL S. PEARSON, Judge.

text:
    M. R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-247.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the adjudication of delinquency for burglary and grand theft upon a holding that in this case where the identity of the perpetrator was the sole disputed issue (1) the evidence that the juvenile’s fingerprint was found on the inner surface of a jalousie window slat at the break-in point of a private residence with which the juvenile had no prior contact or relation was, viewed in a light most favorable to the State, see Codie v. State, 313 So.2d 754 (Fla.1975); Everett v. State, 339 So.2d 704 (Fla.3d DCA 1976), sufficient to establish that the print was made only at the time the crime was committed and to identify the juvenile as the person who committed the crime, see Tirko v. State, 138 So.2d 388 (Fla.3d DCA 1962); compare J. C. v. State, 377 So.2d 731 (Fla.3d DCA 1980); State v. Hayes, 333 So.2d 51 (Fla.4th DCA 1976); Ivey v. State, 176 So.2d 611 (Fla.3d DCA 1965); and (2) the juvenile’s testimony that he touched a jalousie slat lying in the yard adjoining the" victim’s home, although raising a hypothesis of innocence, does not bring the juvenile, as he claims, within the ambit of McArthur v. State, 351 So.2d 972 (Fla.1977), in light of evidence, inconsistent with such hypothesis, that the jalousie which the juvenile purportedly touched was other than the jalousie from which his latent print was removed.

Affirmed.

      . The victim testified she returned home after a day at work at 5:30 p. m. and found the break-in. The police arrived shortly thereafter and removed the latent print from a jalousie slat at the victim’s home. The juvenile testified that at 4:30 p. m. he went to visit his friend who lived next door to the victim and that, while there, he handled a jalousie slat. He remained with his friend until 6:00 p. m. Given this testimony, the trial judge was clearly justified in discounting the juvenile’s apparent hypothesis that the jalousie slat he touched in his friend’s yard was replaced in the victim’s home before 5:30 p. m. and was one and the same as the slat from which the latent print was removed. Needless to say, the trial judge could also have concluded that the peripatetic slat in the yard was much like the unicorn in the garden.


author: BASKIN, Judge.

text:
    George C. CHASE, Appellant, v. Christopher J. TENBROECK, Individually and Christopher J. Tenbroeck d/b/a Chris Tenbroeck’s Crane Rental and Northfield Insurance Company, Appellees.
    No. 80-457.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied June 17, 1981.

      Jon W. Burke and Linda Dakis, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The nature of immunity conferred on a subcontractor by the Workmen’s Compensation Act, section 440, Florida Statutes (1975) in a negligence action brought by an injured construction worker is the subject of this appeal. We agree with the trial court and hold that appellees were subcontractors in a dependent vertical relationship with the subcontractor that employed the injured worker and are therefore immune from liability under this statute.

In 1976 SAC Construction Company, general contractor for the construction of a warehouse, engaged Independent Steel Erectors, Inc. as subcontractor for erecting steel. Independent Steel hired Chris Ten-broeck’s Crane Rental to lift the steel. George Chase, an employee of Independent Steel, was injured when he fell between twenty and thirty feet after Christopher Tenbroeck, the sole proprietor of the crane rental company, lowered metal decking onto joists which collapsed. Appellant collected workmen’s compensation benefits from Independent Steel Erectors. In a suit against Christopher Tenbroeck and Chris Tenbroeck’s Crane Rental and their insurer, appellant Chase sought damages predicated upon Christopher Tenbroeck’s negligence. At the close of plaintiff’s case, the trial court ruled that:

[T]he defendants are immune to liability due to the exclusive remedy of the plaintiff under the Workmen’s Compensation Act.

The trial court directed a verdict and entered summary judgment in favor of appel-lees.

Chris Tenbroeck’s Crane Rental was not an employee of the steel erector; it was a subcontractor hired to perform part of the work for which Independent Steel contracted. See Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.2d 259 (Fla.4th DCA 1980); C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA), cert. denied, 296 So.2d 49 (Fla.1974). Central to our decision in this appeal is a determination concerning whether Christopher Tenbroeck and Chris Tenbroeck’s Crane Rental were statutory employees of a “common employer”, that is, subcontractors amenable to suit under sections 440.10 and 440.11, Florida Statutes (1975).

Formerly section 440.10(1) provided:

In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

The legislature amended section 440.10(1) in 1974 by adding:

A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of s.440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

Section 440.11 provides in part:

(1) The liability of an employer prescribed in s.440.10 shall be exclusive and in place of all other liability of such employer to any third party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or on admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee.

In the case of first impression, McDonald v. Wilson Welding Works, Inc., 370 So.2d 863 (Fla.1st DCA 1979), Judge Ervin, specially concurring, discussed and interpreted the amendment and its application. Although upon casual observation the amendment appeared to change the exclusive status of the worker’s compensation remedy by providing an injured worker with an additional source for recovery of damages, Judge Ervin, in McDonald, analyzed pending litigation and reached a different conclusion. According to his reasoning, section 440.10 authorizes claims against subcontractors by employees of another subcontractor only if the employers are independent (horizontal) subcontractors. If, however, one subcontractor, is dependent on the other subcontractor, immunity still exists. The degree of control exercised by one subcontractor over the other is the determinative factor.

The degree of control exercised by Steel-con over Wilson Welding’s operations is, in my view, the determinative factor. As stated in Smith v. Poston Equipment Rentals, 105 So.2d 578, 579 (Fla.3d DCA 1958):
The appellant urges that in order to apply section 440.11, supra, and thereupon find that workman’s compensation was the exclusive remedy, the trial judge was required to find that Poston, who lent the men and equipment, was a subcontractor under section 440.10(1), supra. We do not think that such a finding is a necessary step to affirm the order of the trial judge. If the men, who were lent as a part of the rental contract, were actually engaged in the construction process and under the direction of the general contractor, they were, for the purposes of this action statutory fellow servants under a “common employer”, who was liable to secure the payment of workman’s compensation for all of them.

McDonald v. Wilson Welding Works, Inc., supra, 370 So.2d at 865. We therefore conclude that questions of independent versus dependent status and horizontal versus vertical status are to be decided by reference to one subcontractor’s control over the other subcontractor.

Work on behalf of a “common employer” engaged in the same contract work is the basis for statutory immunity because the contractual association of contractor to subcontractor brings the contractor under the requirements of the Act mandating that he secure compensation for the subcontractor’s employees. The contractor who has the primary contractual obligation to construct, and who sublets portions of the work, is a contractor within the meaning of section 440.10 and thus is the statutory employer of the employees of its subcontractors as well as of its own employees. Favre v. Capeletti Brothers, Inc., 381 So.2d 1356 (Fla.1980); Hammel v. Pittman, 389 So.2d 1220 (Fla. 1st DCA 1980). Workmen’s compensation immunity derives from a vertical relationship between a contractor and his subs. See Smith v. Ussery, 261 So.2d 164 (Fla.1972); C & S Crane Service, Inc. v. Negron, supra. A subcontractor may engage a subcontractor and thus be both general contractor and subcontractor depending on the contractual association. McDonald v. Wilson Welding Works, Inc., supra; see Fidelity Construction Co. v. Collins & Son, 130 So.2d 612 (Fla.1961).

The amendment to section 440.10(1) affects subcontractors formerly exempt from suit.

The amendment to Section 440.10(1) applies, in my opinion, to entities that stand in an independent—or horizontal— relationship with the other. Thus the amendment would now affect those subcontractors who were formerly held exempt from suit, such as in Miami Roofing and Steel Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950) and Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967), .where, although the relationships between subs were entirely independent, the court held the sub who employed the allegedly negligent employee was immune because it was the general contractor’s responsibility by law to secure compensation to the employees of all his subs. Therefore all employees of subcontractors under the general were deemed fellow employees regardless of the subcontractor’s contractual relationships with one another.
I conclude that it is now necessary to examine the contractual link between the employer of the injured plaintiff and the employer of the alleged negligent employee to determine whether the amendment to Section 440.10(1) has any applicability. If their relationship is necessarily dependent, the employer’s immunity from common law suit remains unaffected by the amendment, [footnote omitted].

McDonald v. Wilson Welding Works, Inc., supra, 370 So.2d at 865-66.

In the case before us, the first question to be decided is the nature of the relationship between Independent Steel and Chris Tenbroeck’s Crane Rental. If the relationship can be characterized as dependent, the crane rental company is immune because it remains protected by Christopher Tenbroeck’s employment for the same statutory employer as employee Chase. If the relationship is independent and characterized as horizontal then, under the 1974 amendment to section 440.10(1), the crane rental company’s liability for negligence would not be protected by the exclusive liability provisions of section 440.11(1) in the event negligence were established. Because the record shows that Independent Steel hired Chris Tenbroeck’s Crane Rental and directed its work, because the record also discloses that the crane operator performed no work other than that which it was directed by Independent to perform, and because the crane rental company was not required to carry its own workmen’s compensation coverage, we hold that the relationship between Independent and Chris Tenbroeck’s Crane Rental was dependent. We therefore affirm the summary judgment.

Appellant also contends that Christopher Tenbroeck as an individual was his co-employee and thus enjoyed no immunity from suit. Frantz v. McBee Company, 71 So.2d 796 (Fla.1955). We disagree. Ten-■broeck is the sole proprietor of the crane rental company. He does not possess the status of an employee even though he was working on the project. See Revere v. Shell Chemical, Inc., 376 So.2d 1214 (Fla.3d DCA 1979).

For the foregoing reasons, the decision of the trial court is affirmed.

      . For definitions of the terms contractor, subcontractor, and subsubcontractor, we turn to section 713.01, Florida Statutes (1975):

      (2) “Contractor” means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as above defined the entire remaining work under such contract.

      (16) "Subcontractor” means a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract.
      (17) “Subsubcontractor” means a person other than a materialman or laborer who enters into a contract with a subcontractor for the performance of any part of such subcontractor’s contract.

      . See questions certified in Motchkavitz v. L. C. Boggs Industries, Inc., supra, and Williams v. Corbett Cranes, Inc., 396 So.2d 811 (Fla.5th DCA 1981) concerning liability under section 440.10, Florida Statutes (1973), prior to its amendment in 1974.

      . Ch. 74-197, § 6, Laws of Fla.

      . Section 440.11(1) was amended in 1978, ch. 78-300, § 2, Laws of Fla., to extend immunity to fellow employees acting in furtherance of the employer’s business depending on the degree of negligence. See Iglesia v. Floran, 394 So.2d 994 (Fla.1981). The 1978 amendment does not apply to these proceedings.

      . We do not decide the issue of negligence as the order appealed ruled only on the issue of immunity under the Workmen’s Compensation Act.


author: PER CURIAM.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Elba MOREIRA; Peggy Nye a/k/a Peggy McNulty and Government Employees Insurance Company, Appellees.
    Nos. 80-833, 80-676.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger and Michael C. Spring, Miami, for appellant.
    Anderson & Moss, Daniels & Hicks and Mark Hicks, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLemore, Miami, for appellees.
    Before SCHWARTZ, PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Travelers Ins. Co. v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981), and cases cited; United States Fidelity and Guaranty Co. v. Darden, 338 So.2d 37 (Fla. 3d DCA 1976), cert. dismissed, 353 So.2d 680 (Fla.1977); Infante v. Preferred Risk Mutual Ins. Co., 364 So.2d 874 (Fla. 3d DCA 1978).


text:
    Nick Austin RICCI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-854.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Schlanger v. State, 397 So.2d 1028 (Fla. 3d DCA 1981); State v. Dodd, 396 So.2d 1205, 1207-08 (Fla. 3d DCA 1981).


text:
    The STATE of Florida, Appellant, v. Ellen M. HONNERT, Catherine E. Wilson, Ronald K. Stearn, Julio Figueroa, David C. Berry, Milton Schnaph, George G. Mearns, Ronald W. Sangrujo, George F. Viganouski, Steve Costa and Mark Avery, Appellees.
    No. 80-1169.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.

      Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    Sheldon “Skip” Taylor, Wolff & Gora, Fort Lauderdale, for appellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The state seeks review of an order of suppression rendered before the abolition of the “automatic standing” rule in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). As in Coster v. State, 392 So.2d 16 (Fla.3d DCA 1980), and Priori v. State, 386 So.2d 618 (Fla.1st DCA 1980), we deem it appropriate to vacate the order under review and remand the cause for hearing and determination of whether the appellees had a legitimate expectation of privacy in the area from which the evidence in question was secured. The trial court shall thereafter enter an order on the motion to suppress consistent with its finding on that issue.

Vacated, remanded with directions.


text:
    Morris BASS, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Columbia Pictures Industries, Inc., Appellees.
    No. 80-1494.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Krongold & Bass, Carol B. Haber and Paul H. Bass, Coral Gables, for appellant.
    James R. Parks, Tallahassee, for appel-lees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Justice v. Belford Trucking Co., 272 So.2d 131 (Fla.1972); Cantor v. Cochran, 184 So.2d 173 (Fla. 1966); Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941); Restatement (Second) of Agency § 220 (1957).


text:
    Everett L. LEE, Appellant, v. Rita LEE, Appellee.
    No. 80-1625.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Snowden, Kornreich, Reichenthal & Mig-dall and Charles H. Snowden, Miami, for appellant.
    Robert F. Weiner, Miami, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Rosen v. Rosen, 386 So.2d 1268, 1271 (Fla. 3d DCA 1980); review denied, 392 So.2d 1378 (Fla.1981); Creel v. Creel, 378 So.2d 1251, 1252 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1111 (Fla.1980).


text:
    Rita DUNN, Appellant, v. JO ANN TAUBE REALTY, INC., a Florida Corporation, and Marvin Rosen & Associates, a Florida Corporation, Appellees.
    No. 80-1882.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    George A. Buchmann, Miami, for appellant.
    Mitchell L. Perlstein and Cindy S. Leder-man, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

In the light of the showing of excusable neglect, and of the proferred meritorious defenses, we find that the trial court abused its discretion in denying the appellant-defendant’s promptly filed motions to set aside the default and final default judgment entered against her below. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979); Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975); Rubin v. Baker, 276 So.2d 532 (Fla. 3d DCA 1973). Accordingly, the order under review is reversed with directions to vacate the default and default judgment and to accept the defendant’s tendered answer, and for further proceedings consistent herewith.

Reversed.


text:
    Larry PASKOW and Larry J. Paskow Associates, Inc., Appellants, v. NATIONAL BANK OF NORTH AMERICA, a corporation, Appellee.
    No. 80-2381.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied June 17, 1981.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for appellants.
    Mahoney, Hadlow & Adams and Charles W. Throckmorton, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Haas v. Haas, 59 So.2d 640 (Fla.1952); Ratner v. Hensley, 303 So.2d 41 (Fla.3d DCA 1974).


text:
    James D. WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-602.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.

      James D. Walker, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Incarceration pursuant to the split sentence alternatives found in Sections 948.-01(4) and 948.03(2), Florida Statutes (1979) which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specific period of probation. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

Remanded for resentencing in accordance with Villery, supra.


text:
    Samuel Lee HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1031.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Beverly J. Hill, Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Petitioner, Samuel Lee Harris, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Eurnice MOREE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1032.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Eurnice Moree, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: ORFINGER, Judge.

text:
    Harold K. WINDSOR, Appellant, v. Crescent A. MIGLIACCIO, Appellee.
    No. 80-670.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Macdonald J. Wiggins of Duckworth, Hobby, Allen & Pettis, P. A., Orlando, for appellant.
    Christopher W. Wickersham of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant (defendant below) contends that the trial court erred in denying his motion to transfer venue from Volusia County to Orange County. We agree and reverse.

In the action filed by plaintiff in Volusia County, he alleged essentially that (1) defendant had breached the exclusive licensing agreement between the parties by failing to proceed with diligence with the exploitation, manufacture, use and sale of a product invented by plaintiff; (2) that because earned royalties had not totalled one hundred dollars since the first year of the agreement, plaintiff had elected, pursuant to the terms thereof, to cancel the agreement. He then alleged doubt as to his rights, remedies and responsibilities under said agreement, and asked for an order declaring it null and void.

Defendant resides in Orange County and no property is involved in the litigation. The parties agree that the venue question depends on “where the cause of action accrued.”

Appellant argues that if there was a breach of the agreement, it occurred in Orange County, where he resides, maintains his place of business and where he was obligated to perform the agreement. Ap-pellee responds by citing the general rule that venue is proper for suits on contract in the county where payment should have been made, Sheffield Steel Products, Inc., v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA 1980), which would be Volusia County, where he resides.

A cause of action for venue purposes accrues in the county where the contract is breached. Speedling, Inc. v. Krig, 378 So.2d 57 (Fla.2d DCA 1979). If a plaintiff alleges breach of a covenant to pay money due or already earned under a contract, the cause of action accrues where performance of the act of payment was to occur. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); M.A. Kite Co. v. A.C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961). If the action is for breach of some other covenant, venue is proper in the county where that covenant was to be performed. American International Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978). Ap-pellee in the instant case did not allege that appellant failed to make payments due or earned under the contract; rather, appellee alleges breach of a covenant to promote his invention. This cause of action accrued in Orange County, where the services were to be performed. Thomas Hardell & Associates, Inc. v. Nabers & Crane, etc., 382 So.2d 439 (Fla.2d DCA 1980). No cause of action accrued in Volusia County merely because payments were properly made there. American International Food Corp. v. Lesko; James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla.2d DCA 1970).

If appellee’s option to cancel the agreement exists because the royalties did not total $100 in any year after the first year, the failure of the royalties to total $100 does not in itself constitute a “breach” of the agreement. A “cause of action” for venue purposes consists of an invasion of a legal right, and damage therefrom. Luckie v. McCall Mfg. Co., 153 So.2d 311 (Fla. 1st DCA 1963). A suit for declaratory relief does not itself constitute a “cause of action” for venue purposes; rather, some underlying justification for laying venue must be shown. George v. Gustinger, 350 So.2d 574 (Fla.3d DCA 1977). Thus, on this ground, venue would lie in the county of defendant’s residence, since no invasion of plaintiff’s legal rights are shown to have occurred in Volusia County.

The order denying appellant’s motion to change venue is reversed, and the cause is remanded to the trial court with directions to enter an order transferring the cause to Orange County.

REVERSED and REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . See Fla.R.App.P. 9.130(a)(3)(A).

      . § 47.011, Florida Statutes (1979) provides, (in relevant part),
      Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Walter Rex BALSER, Appellant, v. STATE of Florida, Appellee.
    No. 80-786.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Balser appeals conditions ten and sixteen of his probation. Condition ten prohibits Balser from consuming alcoholic beverages or frequenting establishments serving alcoholic beverages. Under the facts presented, we find no error in imposition of this condition and AFFIRM.

Condition sixteen provides:

You will submit to search of your person, residence or automobile, by any law enforcement officer, or your Probation Officer, without a search warrant.

A condition of probation authorizing warrantless searches by any law enforcement officer violates the search and seizure provisions of the Federal and Florida Constitutions. Grubbs v. State, 373 So.2d 905 (Fla.1979); Johnson v. State, 386 So.2d 291 (Fla. 5th DCA 1980). Therefore, the portion of condition sixteen requiring appellant to submit to a search by “any law enforcement officer” is hereby ordered stricken. Johnson v. State.

AFFIRMED as modified.

COBB and COWART, JJ., concur.


text:
    Willie Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 80-800.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted by a jury of manslaughter after trial on a charge of second degree murder. He contends, among other things, that the trial court erred in restricting cross-examination of the State’s principal witness. We agree and reverse.

As stated in Coxwell v. State, 361 So.2d 148 (Fla.1978)

When the direct examination opens a general subject, the cross examination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief....

Id. at 151.

The appellant fired several shots in a bar, one of which killed a bystander patron. The only witness testifying for the State testified on direct examination that the shooting took place as appellant was leaving the bar “after a little ruckus had took place”. This apparently was before any shots were fired. When defense counsel, on cross-examination, asked the witness to explain or describe the “ruckus”, the trial court sustained the State’s objection as being outside the scope of direct examination. Appellant’s counsel argued to the court that the questioning was germane because it would tend to show that appellant was being “beaten to death” by the other party in the ruckus and the shooting was thus excusable, but the court declined to allow it, suggesting that appellant could be called to testify as to that defense.

Although not further inquired into by the State, the witness’ testimony about a “ruckus” appears to be a matter germane to the witness’ testimony and plausibly relevant to the defense. Thus it was an abuse of discretion to curtail that inquiry, notwithstanding the possible availability of other witnesses who could have testified to these events for the defense. Alternative methods of proof or theories of defense are exclusively within the province of defense counsel through direct or cross-examination. Coxwell, at 151, n.9.

Since the cause must be remanded for a new trial, we should point out to the trial court that section 775.084, Florida Statutes (1979), contains certain prerequisites to enhancing a penalty for an “habitual felony offender”, not the least of which is a finding on the record, oral or written, that the enhanced penalty is necessary for the protection of the public. Eichorn v. State, 386 So.2d 604 (Fla. 5th DCA 1980). There is no such finding in the record here, nor does it appear that the procedural requirements of section 775.084(3) were complied with, but in view of our decision, it is not necessary to explore this issue further.

The judgment of conviction is reversed, the sentence is vacated, and the case is remanded for a new trial.

REVERSED and REMANDED.

DAUKSCH, C. J., and .COBB, J., concur.

      . During its deliberations, the jury requested that this witness’ testimony be re-read to them as it related to appellant’s intent in firing the gun. In response, the court had all the testimony of the witness read to the jury, omitting questions to which objections had been sustained.


text:
    Paul Allen WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-811.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Williams appeals an order withholding adjudication of guilt and placing him on three years probation for carrying a concealed weapon. He contends that the trial court refused to accept a proffer of his testimony at the hearing on his motion to suppress. We have reviewed the statements at the suppression hearing and find no error. Had appellant’s trial attorney made a sufficient proffer of his client’s testimony or had it been made clear on the record that appellant was prepared to present evidence of even the slightest relevance, a different result may have been necessary.

While we find no error, we feel compelled to point out a misstatement. The judge at the hearing, who was not Judge Swigert, said: “All we [meaning the state] have to do is present enough evidence to show that the seizure of the evidence was sufficient, and we don’t have to have a full discovery or a full trial on this.” This statement is not correct. An accused always has a right to present relevant evidence at a suppression hearing. If he is denied that right and adequately protects the record either with a proffer of relevant evidence or a showing he was denied the proffer, then we can remedy the error. Neither showing is in this record.

DAUKSCH, C. J., ORFINGER, and UP-CHURCH, FRANK, D., Jr., JJ., concur.


author: COBB, Judge.

text:
    Wayne Clarence SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-851.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Robert R. Perry and Joe Miller, Palatka, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Richard W. Prospect, and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   COBB, Judge.

The defendant, Wayne Clarence Smith, as the result of a fracas that occurred at his mobile home on the evening of January 30, 1980, in Putnam County, was charged in a three-count information with: (1) battery of a law enforcement officer, Michael Bur-nette; (2) aggravated assault upon Jerry Vaughn, who was also an officer; and (3) resisting arrest with violence directed toward arresting officers Vaughn and Mike Fazio. The defendant was acquitted of the first two counts. It is only the third count, for which the jury convicted of the lesser included offense of resisting without violence, which concerns us on this appeal.

The incident arose when deputy Burnette responded to a family disturbance dispatch, and was told that Smith was beating his wife inside their trailer. Burnette heard crying inside the trailer and a female voice asking for help. Burnette knocked on the door, and Smith warned him not to come in. This was repeated several times, and finally Burnette entered and found Smith holding his wife down on the floor. When Burnette attempted to intercede, a struggle ensued with the result that Smith struck the officer several times with the latter’s flashlight. During the struggle, Smith’s brother-in-law, one Frank Shrowder, came into the trailer and rendered some assistance to the officer. However, Burnette was unable to handcuff both of Smith’s hands. Thereupon, the officer left the trailer to radio for assistance. As Burnette exited the trailer, Officers Vaughn and Fazio arrived on the scene and talked with Burnette outside the trailer. They examined his injuries, and learned that Shrowder was still inside the trailer with Smith. Vaughn and Fazio then went into the trailer, followed by Burnette. Ultimately, Smith was subdued and handcuffed after another struggle involving all three officers.

Prior to trial the defense filed a motion to suppress, based on the argument that the original entry into the trailer by Burnette without a warrant was an unreasonable entry violative of the United States and Florida Constitutions, and of section 901.19(1), Florida Statutes (1979). The trial court ruled, and properly so, that Bur-nette’s entry was justified under the “exigency rule” exception to the general rule requiring a warrant. Johnson v. State, 386 So.2d 302 (Fla. 5th DCA 1980); Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973); Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967).

At trial of the cause, during cross-examination of the second witness for the state, Officer Vaughn, while defense counsel was exploring facts relating to the justification for the entries into the trailer, the trial court interceded sua sponte and held a conference outside the presence of the jury. As a result of that conference, the trial judge made an in limine determination that Officers Vaughn and Fazio had legally entered the trailer residence. The following colloquy occurred:

THE COURT: As to the count of resisting with violence, the Court has ruled that the deputies had a legal right to be there at that time. The question is whether or not the officer communicated to the Defendant the intention to effect an arrest and whether the Defendant knew that it was the intention of the arresting officer to then and there arrest him.
Once the State has met that burden, the Court is not going to allow any corollary questions to become Jury issues in this proceeding, as to whether the Jury has a right to determine the status or legal standing of the officers to be there at that time.
The Court therefore rules in limine that no issues may be raised before the Jury and no inquiry may be made of the witnesses as to the right of the officers to be there in that place at that time.
MR. PERRY [defense counsel]: Your Honor, so that I may be very clear in the matter, is the Court ruling with regard to Count Three that Deputies Vaughn and Fazio were in fact in the lawful execution of a legal duty?
THE COURT: That is correct.
MR. PERRY: You’re taking that issue away from the jury?
THE COURT: That is correct.
The only question that, the Defense issues that can be inquired into on that point include of course the use of force.

An essential element of the offense under Count Three was that the arresting officers were engaged “in the execution of legal process or in the lawful execution of any legal duty.” See § 843.01, Fla.Stat. (1979). The lawful duty requirement was an essential element to be shown by the prosecution and subject to jury determination, applying the reasonable doubt criterion. Licata v. State, 156 Fla. 692, 24 So.2d 98 (1945); Lee v. State, 368 So.2d 395 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 349 (Fla.1979).

The trial court, by reason of its in limine ruling and subsequent jury instructions, deprived the jury of the right to pass on the issue of the legality of the arrest. If the arrest were illegal, it could be lawfully resisted without violence. Davis v. State, 381 So.2d 285 (Fla. 1st DCA 1980); Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978). In effect, the trial court directed a verdict on this issue during the course of trial. This was error.

Accordingly, we reverse and remand for a new trial on Count Three of the information, as reduced to the charge of resisting arrest without violence.

SHARP, and COWART, JJ., concur.

      . Section 901.19, Florida Statutes (1979), states in pertinent part:
      (1) If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

      . This jury determination should be made pursuant to an appropriate instruction on section 901.15, Florida Statutes (1979).


text:
    Betty June PATRICK, Appellant/Cross Appellee, v. J. M. PATRICK, Appellee/Cross Appellant.
    No. 80-875.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    H. Charles Woerner, Jr., South Daytona, for appellant/cross appellee.

      Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee/cross appellant.
   ORFINGER, Judge.

The former wife appeals portions of a final judgment of dissolution of marriage, and the former husband cross appeals. We affirm in part and reverse in part.

The final judgment dissolving this 36 year marriage divided certain marital assets between the parties, awarded the marital home to the wife as lump sum alimony, and required the husband to pay to the wife rehabilitative alimony for 36 months. The wife contends that the alimony award is insufficient, and should have been made permanent. The husband contends that he established a special equity in certain of the jointly held property which the trial court failed to recognize.

On the question of alimony, the record is clear that the wife did not finish high school and had only worked for a few months during the entire marriage. She has no training for any type of work. She has been working part-time as a sales clerk. Thus there is nothing in the record to indicate that the wife can be or will be rehabilitated within the 36 month period of the “rehabilitative” award. We have previously held, as have other courts, that where the prior education, skills or training of the wife do not of themselves demonstrate the actual or potential capacity for self support, rehabilitative alimony is improper in the absence of other evidence showing such capacity. G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980). Here there was no such evidence. The trial court specifically found that the wife had proven her need of alimony and her entitlement to it, so in awarding rehabilitative instead of permanent alimony, he applied an incorrect rule of law which we have the obligation to correct. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Although the wife has the right to seek an extension of a rehabilitative alimony award, or a conversion to permanent alimony, she would have the burden of proving the change of conditions which would entitle her to any such modification. Therefore, if she is entitled to permanent alimony, it should be awarded to her now. Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981). For these reasons, on remand, the award of rehabilitative alimony should be made permanent.

The amount of the monthly alimony award is peculiarly within the discretion of the trial court, and since no abuse of that discretion has been demonstrated, we are without authority to alter the award. Ca-nakaris, supra. Similarly, we find no abuse of discretion in the division of the marital property.

The designation of the periodic alimony award as rehabilitative is reversed with directions to make it permanent, and the final judgment is otherwise affirmed.

AFFIRMED in part, REVERSED in part and REMANDED with directions.

COBB and SHARP, JJ., concur.


text:
    John H. PATTERSON, Appellant, v. Louise N. PATTERSON, Appellee.
    No. 80-893.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.

      William N. DeCarlis of Bates & DeCarlis, Gainesville, for appellant.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P. A., Ocala, for appellee.
   ORFINGER, Judge.

The order appealed from denied the appellant’s petition to modify the final judgment of dissolution, granted the appellee’s motion to hold appellant in contempt for wilful refusal to comply with the terms of the final judgment, and awarded the wife an attorney fee of $2600 plus costs of this proceeding. The former husband appeals and we affirm.

Appellant fails to demonstrate an abuse of the court’s discretion in refusing to modify the final judgment or in adjudging him in contempt for wilful refusal to comply with its terms, and no useful purpose would be served by discussion of these issues. Appellant’s contention that the wife did not show entitlement to an award of attorney fees deserves further consideration.

Statutory authority for the award of attorney fees in dissolution proceedings, including enforcement and modification, is found in section 61.16, Florida Statutes (1979). The general rule is that the purpose in awarding attorney fees is to ensure that both parties will have the same opportunity to secure counsel. Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA, 1981); Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973). Prior to Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), it had been held that to be entitled to an attorney’s fee, the requesting spouse must show, among other things, that he or she was unable to pay it. See, e. g., Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). This strict requirement was modified by the Supreme Court in Canakaris, where it was held:

It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney’s fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.

382 So.2d at 1205.

We hold that where, as here, it is necessary for a spouse to seek enforcement of the final judgment because of wilful refusal of the other spouse to comply with its terms, the trial court may take into account the disregard by that other spouse of the court’s order in considering a motion to assess attorney fees. Spencer v. Spencer, 305 So.2d 256 (Fla.3d DCA 1974), cert. denied, 351 So.2d 470 (Fla.1975). We agree with that portion of the specially concurring opinion of Judge McCord in Patterson, where, in discussing the effect of section 61.16, Florida Statutes (1979), in an enforcement proceeding he said:

This statute vests authority in the trial court to order a party to pay a reasonable amount for attorney’s fees for the other party after considering the financial resources of both parties. I do not construe this to mean that the party requesting an award of attorney’s fees must be unable to pay the fees in order to secure such an award. This is particularly true where a party has become delinquent in child support payments, and it becomes necessary for the other party to bring a contempt proceeding to require that the court’s order be complied with. A party bringing such a proceeding should not have the burden of showing that he or she cannot pay the fee in order to secure an award of his or her attorney’s fees which were necessitated by the other party’s noncompliance with the court order.

348 So.2d at 596-97.

The order appealed from is AFFIRMED.

COBB and SHARP, JJ., concur.

      . § 61.16, Fla.Stat. (1979): The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

      . Not the same parties as the case sub judice.


text:
    Anthony GALLAGHER, Appellant, v. Bernice GALLAGHER, Appellee.
    No. 80-1169.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Rehearing Denied June 10, 1981.

      Edwin R. Ivy, Winter Garden, for appellant.
    J. Russell Hornsby, Orlando, for appellee.
   ORFINGER, Judge.

The husband appeals from those portions of the final judgment of dissolution which make monetary awards to the parties. We reverse.

The wife was awarded all of the husband’s interest in the jointly owned marital assets “in recognition of her special equity in said property, as and for lump sum alimony.” The wife was then ordered to pay the husband the sum of $75.00 per week as permanent, periodic alimony during his lifetime or until he remarried, whichever occurred first. The effect of the judgment was to give the wife title to everything the parties owned, and to require her to make the weekly payments to the husband.

The husband contends that: (a) the award of the property to the wife was improper; (b) if the property award was proper, the court abused its discretion in not awarding to the husband a greater weekly sum as permanent alimony; (c) the court erred in not finding a special equity in certain stock titled in the wife but purchased out of the joint funds of the parties.

The parties were married in 1939 when both were young and neither had any assets. The wife concedes that during the first twenty years of the marriage the husband was essentially the principal breadwinner, although the wife worked as she could while raising the children. The evidence then reveals that during the last twenty years of the marriage the wife became the essential support of the family, operating a succession of small family businesses, each of which was eventually sold and the proceeds invested into the next, the parties finally acquiring what they owned at the time of this dissolution proceeding. The evidence is also clear that during the later years of the marriage the husband has had mental problems and apparently a serious drinking problem.

The trial court found that the wife had been the main sustenance and support of the marriage for at least twenty years, and that she therefore had a “special equity in the business, in the property of the parties,” as a result of which he would award her the business, and the marital domicile with its furnishings and the automobile. In the final judgment, however, he awarded her these assets “in recognition of her special equity in said property, as and for lump sum alimony.”

There is a distinction between an award of property based on a “special equity” and an award of property as lump sum alimony. The term “special equity” was created to describe a vested interest of a spouse in property brought into the marriage or acquired during the marriage because of contribution by that spouse of services or funds over and above normal marital duties. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The record does not sustain the property award to the wife under this definition. All this property was acquired during the marriage, and each party contributed to the sustenance of the family albeit at different points in time. The fact that the wife was compelled to become the chief breadwinner because of the husband’s mental and drinking problems (both properly characterized as illness) cannot be considered a contribution of services “over and above the normal marital duties” in the circumstances here.

If the award was intended as lump sum alimony as it appears to be, it clearly was not intended as support for the wife. Neither can it be justified as an equitable distribution of property, because it stripped the husband of everything he had. It can readily be seen that the husband could not make this payment without substantially endangering his economic status. Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). A trial judge should ensure that neither spouse automatically passes from misfortune to prosperity or from prosperity to misfortune, nor in the totality of the circumstances should one spouse be “shortchanged”. Canakaris; Brown. The permanent periodic alimony award to the husband did not alleviate the problem because should the wife die first, the award would terminate, leaving the husband without sustenance of any kind, and without assets.

The husband’s present condition may be such that he is unable to manage his affairs, and as reflected by the trial court, his assets would be soon dissipated if left in his care, but there are ways to prevent such dissipation by persons unable to properly protect their property. Similarly, the continued success of the grocery store business may depend on the ability of the wife to continue running it without interference from the husband, and this opinion is not intended to preclude such result if the trial court deems it necessary to the preservation of that asset.

Since the award of permanent alimony to the husband was part of the trial court’s attempt to distribute the marital property, we must reverse that award as well. The trial judge should reconsider as well the question of whether the stock in Certified Grocers is a marital asset because it was purchased out of joint funds, although titled in the wife’s name.

The portions of the final judgment dissolving the marriage and awarding attorney’s fees are affirmed, neither being question in this appeal. The remaining portions of the final judgment dealing with alimony and property rights of the parties are vacated and set aside, and the cause is remanded to the trial court for reconsideration in the light of this opinion, either on the basis of evidence already in the record, or with the benefit of additional testimony as the trial court may determine necessary to a decision.

AFFIRMED in part, REVERSED in part and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . These assets consisted of the marital residence (and its contents), to which was attached a country grocery store, all the inventory on hand, and a 1976 Ford automobile. According to the affidavits of the parties, the real property, business, inventory, equipment, cash in bank and automobile had a net value of approximately $70,000. The wife owned in her name approximately $5,000 in • Certified Grocers stock.


text:
    CRYSTAL RIVER ENTERPRISES, INC., a Florida Corporation, Appellant, v. NASI, INC., a Florida Corporation, Appellee.
    No. 80-1214.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.

      Peter Langley, III, Yankeetown, for appellant.
    John Russell, P.A., Homosassa Springs, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Crystal River Enterprises, Inc. appeals a judgment obtained by appellee, NASI, Inc. Crystal River agreed with International Motel Brokers to sell its motel for $1,600,-000 plus a $50,000 commission. The broker brought the president of NASI to see the motel. A few days later NASI’s president and the president of Crystal River met privately and arranged the purchase and sale of the motel for the $1,600,000 providing NASI would indemnify Crystal River for any brokerage commission arising from the transaction.

International Brokers sued Crystal River for the commission. A default judgment was entered against Crystal River. Crystal River then sued NASI on the indemnity agreement. NASI pleaded several affirmative defenses including Crystal River’s negligence in failing .to notify NASI of the pending suit thus depriving it of an opportunity to defend, and Crystal River’s negligence in defending the action and moving to obtain relief from the default judgment. During the trial, the court refused to admit evidence concerning the merits of the suit filed by International Brokers. This appeal was taken from the judgment in favor of NASI. We REVERSE and REMAND for new trial.

The indemnity agreement did not require notice to NASI of any pending claim or suit for brokerage fees. Generally, in the absence of a specific provision in the indemnity agreement, there is no requirement to notify the indemnitor to come in and defend as a condition precedent to recovery. Boston & Maine Railroad v. Bethlehem Steel Co., 311 F.2d 847 (1st Cir. 1963). See also 42 C.J.S. Indemnity § 15 (1944). Because Crystal River had no duty to notify NASI, the failure to notify did not constitute negligence which would bar recovery.

However, NASI, not having an opportunity to defend, is not bound by the judgment in the suit by the broker against Crystal River. The prior judgment is, at most, prima facie evidence, and the burden of proof is on the indemnitee to establish all actionable facts. The indemnitor is free to contest the validity of the judgment and the liability of the indemnitee. 42 C.J.S. Indemnity §§ 26, 32(2) (1944); MacArthur v. Gaines, 286 So.2d 608 (Fla.3d DCA 1973). Accord, United New York Sandy Hook Pilots Ass’n v. Rodermond, Ind., 394 F.2d 65 (3rd Cir. 1968).

NASI also argues that Crystal River was negligent in allowing a default judgment to be entered and that an indemnitee should not be allowed to recover for its own negligence. Here, the intent to indemnify Crystal River for any brokerage fees was clear and unequivocal and the indemnification is unrelated to any act or failure to act on the part of Crystal River. Crystal River is required to prove all actionable facts to recover on the indemnity agreement. If Crystal River fails to carry its burden of proof, NASI is not required to indemnify Crystal River despite the judgment against it. Liability is based on the agreement and not on the prior judgment against Crystal River. The same result would have occurred even if Crystal River had been negligent in failing to defend the prior suit, because that negligence could not be the proximate cause of NASI’s loss and would not preclude recovery on the indemnity agreement.

We therefore REVERSE and REMAND for new trial.

SHARP and COWART, JJ., concur.


author: BERANEK, Judge.

text:
    James NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-772.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Rehearing Denied June 24, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Donnie Murrell, Asst. Public Defenders, and Douglas N. Duncan, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant/appellant seeks reversal of the trial court’s order denying his motion for discharge which was based on speedy trial grounds. In 1977, defendant was charged and found guilty of second degree murder. On appeal, this court reversed and remanded for a new trial because the trial court had failed to give an appropriate jury instruction. Nelson v. State, 371 So.2d 706 (Fla. 4th DCA 1979). This court’s mandate was filed with the trial court on July 23, 1979. On August 3, 1979, the state filed a petition for certiorari seeking review before the Florida Supreme Court and on August 8, 1979, the state filed a motion in the trial court to extend speedy trial time pursuant to Florida Rule of Criminal Procedure 3.191. The trial court granted a ninety-day extension to the state in which to try the defendant subsequent to the Supreme Court’s ruling on the state’s petition for certiorari. On February 19, 1980, the Supreme Court denied the petition for certiorari without opinion. The case was set for trial before the Circuit Court on April 22, 1980, and on that date appellant/defendant filed a motion for discharge contending that speedy trial time had run and that the trial court had improperly extended said period by its earlier order. After this motion for discharge was denied, defendant pled nolo con-tendere to the charge of manslaughter reserving his right to appeal denial of his motion for discharge. We affirm.

The issue is whether the trial court properly granted the motion to extend speedy trial time. Defendant relies upon the case of Ferrell v. State, 385 So.2d 120 (Fla. 3d DCA 1980). Ferrell holds that, for the purpose of further review before the Supreme Court, speedy trial time may be extended only at the discretion of the district courts by a stay of proceedings pursuant to Florida Rule of Appellate Procedure 9.310(a) and not by the trial court pursuant to Florida Rule of Criminal Procedure 3.191(g). We disagree with the Ferrell decision and certify the result herein to be in conflict with Ferrell. We conclude that the trial court has jurisdiction to consider an extension of time pending resolution of certiorari or a petition for review to the Supreme Court. We believe this to be an appropriate exceptional circumstance within the meaning of Rule of Criminal Procedure 3.191(d)(2) and 3.191(f). Further, in State ex rel. Girard v. McNulty, 348 So.2d 311 (Fla.1977), the Supreme Court held that the list of exceptional circumstances stated in the speedy trial rule was not all inclusive and that sub-section (f) should be given a broad interpretation. Based on the above, we affirm the order of the trial court.

AFFIRMED.

HERSEY, J., and WARREN, LAMAR, Associate Judge, concur.


text:
    Edna WEISLANDER, individually, and Irving Weislander, as husband of Edna Weislander, Appellants, v. CITY OF SUNRISE, a municipality under the laws of the State of Florida, Appellee.
    No. 80-1949.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Brian W. Pariser of Kosdan & Pariser, Miami, for appellants.
    David T. Price of Price, Byrne & Trib-bett, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a non-final order in which the trial court set aside a default previously entered in favor of the appellants. Such an order is not subject to an interlocutory appeal. Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980); Liebman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979); Yates v. Roller Skating Rinks Inc., 379 So.2d 1333 (Fla. 5th DCA 1980); Praet v. Martinez, 367 So.2d 657 (Fla. 3rd DCA 1979).

Accordingly this appeal is dismissed.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Derrell K. KELLEY, Appellee.
    No. 80-2214.
    District Court of Appeal of Florida, Second District.
    May 27, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellee.
   PER CURIAM.

We affirm the granting of the motion to suppress the evidence seized at the scene of the arrest of the defendant. Any implication that the defendant could not be prosecuted by reason of the granting of the “motion to suppress the person of the defendant” is unwarranted.

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


author: ERVIN, Judge.

text:
    CIRCLE FINANCE COMPANY, d/b/a Securities Investment Company of Florida, Appellant, v. Jessie L. PEACOCK and Sara A. Peacock, husband and wife, Appellees.
    No. TT-336.
    District Court of Appeal of Florida, First District.
    May 28, 1981.

      Alan B. Bookman of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    E. Brian Lang of Mann & Lang, Pensacola, for appellees.
   ERVIN, Judge.

Circle Finance Company appeals a monetary award in favor of the Peacocks in an equitable action which sought rescission of a quit claim deed, incidental damages, and other equitable relief. We affirm.

The Peacocks executed several second mortgages on their home to Circle in exchange for loans and loan renewals during 1972-1975, and in most instances purchased credit life and disability insurance on behalf of Mr. Peacock. In March, 1975, Peacock was declared permanently and totally disabled. Whether the Peacocks immediately notified Circle of his disability or whether they notified it after a formal notice of claim for disability benefits was filed, following the delivery of the quit claim deed, was a question of fact. At any event, the Peacocks continued to make partial payments on the loans from March to November, 1975, when they took out one more loan in an attempt to bring their obligations current. Later, however, after they had once again fallen into arrears on their notes, the Peacocks, in March, 1976, executed a quit claim deed to Circle in an attempt to satisfy their indebtedness. Following receipt by it of the quit claim deed, Circle, as beneficiary of the disability insurance policies, received $13,178 in insurance proceeds as a result of Peacock’s disability. Circle later refused the Peacocks’ demand to return the deed or to reimburse them for the benefits paid to it, and the Peacocks-brought this action.

Following non-jury trial, the court, in a letter to the parties’ attorneys, and preceding the entry of final judgment, stated that the request for rescission was denied, but that the sum of $10,967.43 would be granted to the Peacocks. That figure was arrived at by aggregating the proceeds of the credit disability proceeds paid to appellant and then deducting $2,211 which had been paid by Circle to the Peacocks’ first mortgagee. Neither the court’s letter nor its judgment characterized the award as damages.

Circle argues that the trial court, once it denied rescission, was then without authority to grant any monetary relief because damages must be incidental to the primary relief requested. It has of course long been recognized that damages must be incidental to, and not independent of, the equitable cause. Boyd v. Hunter, 104 Fla. 561, 140 So. 666 (1932); La Mar v. Lechlider, 135 Fla. 703, 185 So. 833 (1939); Miller v. Rolfe, 97 So.2d 132 (Fla. 1st DCA 1957). And, if a plaintiff has failed to prove grounds for equitable relief, or, if proven, it is plaintiff’s fault such relief cannot be granted, a court of equity is without authority to grant damages. Miller v. Rolfe, supra. Conversely, if the equitable relief cannot be granted due to the defendant’s wrongdoing, the court may award damages. Winn and Lovett Grocery Co. v. Saffold Bros. Produce Co., 121 Fla. 833, 164 So. 681 (1935); Beavers v. Conner, 258 So.2d 330 (Fla. 3d DCA 1972).

The lower court had before it conflicting evidence from which it could determine whether or not to grant rescission. It chose not to do so. This decision was within a proper exercise of its equitable discretion. If, however, the complaint is considered only as one seeking rescission and damages incidental to rescission, it would have been legally inconsistent for the court to deny rescission, there being nothing in the record indicating that the primary relief sought was impossible, but, on the other hand, to grant incidental damages. Our task is to determine whether there is any support in the record, or any legal basis, for the award entered.

We do not consider that the relief demanded in the Peacocks’ amended complaint was limited solely to a request for rescission and incidental damages. Among other things, the Peacocks alleged that the defendant was “compensated for [its] loss, if any, by ... [its] insurance carrier and ... [had] retained Plaintiff’s house despite repeated demands to return the house.” In their prayer for relief, in addition to seeking cancellation of the deed, and such incidental damages as moving expenses, as well as reimbursement of mortgage payments made after the deed’s delivery and rental payments, they also alleged that defendant had “retained insurance policy payments for disability benefits and ... also retained ownership of the house and property formerly belonging to the Plaintiffs.” Their prayer concluded with the general request that “the Court grant such other and further relief as it deems equitable.”

Under the Florida Rules of Civil Procedure, every complaint is considered to pray for general relief. Fla.R.Civ.P. I.110(b). The court thus is required to look to the facts alleged, the issues and proof, and not the form of the prayer for relief to determine the nature of the relief which should be granted. Chasin v. Richey, 91 So.2d 811 (Fla.1957); Phelps v. Higgins, 120 So.2d 633 (Fla.2d DCA 1960). Restated, the character of an equitable pleading is determined, not by its title, but by its contents, and by the actual issues in dispute. Moorhead v. Moorhead, 159 Fla. 470, 31 So.2d 867 (1947); Boyer v. Dye, 51 So.2d 727 (Fla.1951). Moreover, in equitable actions, it is recognized that the courts have the fullest liberty in molding decrees to the necessity of the action regardless of the prayer. Singer v. Tobin, 201 So.2d 799 (Fla.3d DCA 1967). See also Langford v. Wauchula State Bank, 148 Fla. 236, 4 So.2d 10 (1941), in which the bank sought a partition of certain fire insurance proceeds received by a mortgagor’s assignee as to property which had been fire damaged. The Supreme Court sustained not only the lower court’s holding that partition would not lie against the defendant, who held only an equitable interest in the land, but also its holding which permitted distribution of the proceeds. In responding to the argument that the complaint should have been dismissed because the complaint sought only partition and not distribution, the court observed that the issue of distribution was properly before the trial court upon a prayer for general relief, and that “[i]n the absence of an abuse of discretion, the chancellor has a right to award such appropriate relief as the parties may be entitled to.” 4 So.2d at II.

Giving heed to the above principles, we consider that the fair scope of the allegations, the issues, and the proof presented, support the trial court’s award under a theory of restitution, or unjust enrichment. Unjust enrichment is characterized as the effect of a failure to make restitution for property received by one under such circumstances as to give rise to a legal or equitable obligation, thereby requiring such person to account for his retention of the property. 28 Fla.Jur., Restitution and Implied Contracts, § 3 (1968 rev.). Stated differently, the doctrine is a recognition that a person is accountable to another on the ground that if the former were not required to do so, he would unjustly benefit, or the other would unjustly suffer loss. Restatement of the Law, Restitution 1 (1937). And, more to the point, the doctrine recognizes that one party should not be indemnified twice for the same loss to the detriment of another party. Kossian v. American National Ins. Co., 254 Cal.App.2d 647, 62 Cal.Rptr. 225 (1967).

Thus, unjust enrichment, or restitution, acknowledges an obligation which is imposed by law regardless of the intent of the parties. Id. It is a broad based concept, and, since the doctrine is not dependent upon the existence of wrongdoing, a showing of fraud is not a necessary precondition to its application. See Restatement, Restitution, § 63, comments a-c. The court had before it conflicting evidence from which it could appropriately determine that at the time Circle received the quit claim deed from the Peacocks, Circle had no knowledge of Mr. Peacock’s disability. It may thus have concluded that Circle did not employ fraudulent means to acquire the Peacocks’ property; hence its denial of the request to cancel the deed. Nevertheless, the court also had before it evidence clearly showing that Circle had twice received compensation for the same indebtedness: The quit claim deed, causing Circle to satisfy all of the Peacocks’ outstanding loan balances, and disability insurance benefits, whose purpose was to guarantee payment of the loans to the creditor should the debt- or become disabled. As a result of such evidence, the court directed restitution of the insurance proceeds — not an award of damages — since restitution, which does not necessarily involve a wrongdoing, is distinct from a right of action for damages. 66 Am.Jur.2d, Restitution and Implied Contracts, § 166 (1973).

Restitution may be sought either in a court of law before a jury or in an equitable proceeding. See note, Restitution: Concept and Terms, 19 Hastings L.J. 1167, 1168 (1968). There are three generally recognized remedies at equity by which a person who has been unjustly deprived of his property may seek restitution: (1) by impressing a constructive trust, (2) by imposing an equitable lien, and (3) by subro-gating him to the rights of the obligee or lien holder. See Restatement, Restitution, §§ 160-162.

The award of the court below is sustainable under a theory of unjust enrichment, and its particular equitable remedy as applied to circumstances before us is appropriately accomplished by the vehicle of a constructive trust. See Bell v. Smith, 159 Fla. 817, 32 So.2d 829 (1949); Davidson v. Lely Estates, Inc., 330 So.2d 528 (Fla.2d DCA 1976). It is particularly applicable in those situations where, although the property was not originally fraudulently acquired, it is against equity that the property should be retained by the person holding it. Bell v. Smith, supra.

It is an ancient maxim of the law that equity is as long as the chancellor’s foot. Although the foot of the learned chancellor in the case at bar was indeed broad, it was not so large as to have overstepped the proper bounds of equitable discretion.

AFFIRMED.

LARRY G. SMITH & SHIVERS, JJ., concur.