author: HERSEY, Judge.

text:
    GREAT AMERICAN INSURANCE COMPANY, Appellant, v. Lauren COPPEDGE and Hasam Realty Corp., etc., et al., Appellees. HASAM REALTY CORP. d/b/a Diplomat Resort and Country Clubs, Appellants, v. Lauren COPPEDGE and Great American Insurance Company, Appellees.
    Nos. 80-1487, 80-1544.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Rehearings Denied Dec. 2, 1981.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P. A., and Pomeroy, Betts & Pomeroy, Fort Lauderdale, for Great American Ins. Co.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Rubin & Rubinchik, P. A., Hollywood, for Hasam Realty Corp.
    William C. Crenshaw of Mahoney, Had-low & Adams, P. A., Miami, for appellee-Lauren Coppedge.
   HERSEY, Judge.

These are appeals by an innkeeper (Appeal #80-1544) and its insurer (Appeal #80-1487) from determinations in the trial court that the innkeeper is liable to its guest for loss of certain items of jewelry and that the loss is covered by insurance. The applicability of the Florida Innkeeper’s Statute, Section 509.111, Florida Statutes (1979), is called into question.

Lauren Coppedge, while a guest at the Diplomat Hotel, hid her jewelry box behind two phone books on a night stand in her hotel room. She later checked out without retrieving her valuables. The box was discovered by a maid who turned it over to the housekeeping department. The latter, in turn, delivered it to the director of hotel security, Victor Graziano. The evidence is conflicting as to whether Graziano took possession immediately prior to or shortly after being advised that his employment was being terminated. In any event he could not recall what he did with the jewelry box and it was never returned to Coppedge.

Coppedge filed a complaint against the hotel on the alternative theories of bailment, negligence and conversion.

Appellant, Hasam Realty Corp., owner of the hotel, defended on the basis that its liability, if any, was in any event limited by the Florida Innkeeper’s Statute. It, in turn, filed a third-party complaint against Great American Insurance Company seeking indemnification based upon a so-called “3-D” policy (dishonesty, disappearance and destruction) in the event the hotel was required to respond in damages for the loss.

Appellant, Great American, defended on the basis that it could not be shown that Graziano entertained the intent to commit a fraudulent or dishonest act, a prerequisite to coverage for the loss in question.

The court read to the jury the entire Florida Innkeeper’s Statute, thus placing the burden on the jury to determine whether the statute, or a portion of it, applied, on the facts of this case.

The jury found that the acts of the hotel were the sole legal cause of the loss and awarded damages of $14,800 to Coppedge. The jury further found in favor of the hotel against its insurer.

The first issue presented for our determination is whether or not the trial court erred in refusing to direct a verdict to the effect that liability was limited by the Florida Innkeeper’s Statute. That statute, Section 509.111 Florida Statutes (1979), provides:

(1) The operator of a public lodging establishment is under no obligation to accept for safekeeping any moneys, securities, jewelry, or precious stones of any kind belonging to any guest, and, if such are accepted for safekeeping, he shall not be liable for the loss thereof unless such loss was the proximate result of fault or negligence of the operator. However, the liability of the operator shall be limited to $1,000 for such loss, if the public lodging establishment gave a receipt for the property (stating the value) on a form which stated, in type large enough to be clearly noticeable, that the public lodging establishment was not liable for any loss exceeding $1,000 and was only liable for that amount if the loss was the proximate result of fault or negligence of the operator.
(2) The operator of a public lodging establishment shall not be liable or responsible to any guest for the loss of wearing apparel, goods or other property, except as provided in subsection (1), unless such loss occurred as the proximate result of fault or negligence of such operator, and, in case of fault or negligence, he shall not be liable for a greater sum than $500, unless the guest, prior to the loss or damage, files with the operator an inventory of his effects and the value thereof and the operator is given the opportunity to inspect such effects and check them against such inventory. The operator of a public lodging establishment shall not be liable or responsible to any guest for the loss of effects listed in such inventory in a total amount exceeding $1,000.

We first consider appellee’s contention that the statute is totally inapplicable because Coppedge was no longer a “guest” when the loss occurred. For this proposition Coppedge relies upon O’Brien v. Vaill, 22 Fla. 627, 1 So. 137 (1886). In that case, a guest, after settling his bill, departed from the hotel, leaving his baggage behind, requesting an employee of the hotel to keep it until his return. The court determined that the extraordinary liability imposed on an innkeeper by the law in effect at that time for protection of a guests’ baggage did not apply when the hotel-guest relationship had ceased to exist. The court reasoned that the imposition of extraordinary liability upon the innkeeper was based on the profit he received from entertaining his guest; thus, when a traveler ceased to be a guest and the innkeeper ceased to derive a profit from his entertainment, the extraordinary liability ceased. Coppedge contends that this principle is relevant to the instant case in that, when the hotel-guest relationship ceases, so too does the limitation of liability. Such an application would produce the incongruous result that a hotel would have limited liability to a paying guest but unlimited liability to a guest who has terminated the relationship. We are therefore not at all persuaded that the rule in Vaill, lessening the exposure to liability of an innkeeper for the safekeeping of the belongings of his departed former guest, should be applied in the context of this case to increase the exposure to liability for such activity.

Having determined, then, that the statute applies, we turn next to a consideration of the manner in which it should be applied in this case.

Under subsection (1) of this statute the hotel must follow certain procedures in order to limit its liability for losses of moneys, securities, jewelry, or precious stones which it accepts for safekeeping. Thus, if a hotel accepts property for safekeeping but does not follow the procedures outlined in the statute, it cannot claim the benefit of a limitation of liability. Garner v. Margery Lane, Inc., 242 So.2d 776 (Fla.4th DCA 1970).

Coppedge claims that the hotel accepted her jewelry for safekeeping by taking it into custody. Therefore, according to Coppedge, the hotel, in order to limit its liability, was required to give her a receipt for the property. She concludes that since there was no evidence that a receipt was given, the hotel cannot claim the benefit of the limitation of liability. However, the statute also requires that the receipt for the property state its value. Obviously, this value must be ascertained from the owner. We interpret this portion of the statute as contemplating a tender of the property for safekeeping by the guest before there can be an acceptance by the hotel. Here there was no such tender by Mrs. Coppedge. In fact she made an informed and specific decision to forego the use of the hotel’s safety deposit boxes (safekeeping facilities).

Subsection (2) of 509.111 places the burden of complying with enumerated procedures on the guest in order to avoid a strict limitation of liability for the loss of items which have not been accepted by a hotel for safekeeping. Coppedge challenges the applicability of subsection (2) in this case because it covers “loss of wearing apparel, goods or other property, except as provided in subsection (1).... ” Subsection (1) refers to “money, securities, jewelry or precious stones.” Thus, argues Coppedge, subsection (2) is not applicable to any of the items listed in subsection (1). However, the “except for” language of subsection (2) refers more logically to the liability of the hotel rather than to the nature of the property.

Under our interpretation, a hotel’s liability for a guest’s loss of property is limited to $500 unless the hotel accepts property for safekeeping pursuant to subsection (1) or the guest, in accordance with subsection (2) provides an inventory of effects not tendered and accepted pursuant to subsection (1). In either event, if the proper procedures are followed, the hotel’s liability is limited to $1,000.

Coppedge complains that to interpret subsection (2) as including jewelry would allow a hotel to circumvent the provisions of subsection (1). However, the statute clearly sanctions such an eventuality by providing that a hotel is under no obligation to accept the specified items for safekeeping.

Our conclusion is that if the hotel is liable for the loss its liability is limited by subsection (2) of Section 509.111, Florida Statutes (1979).

A hotel is liable for loss of a guest’s property only when the loss is a proximate result of fault or negligence of the hotel. § 509.111, Fla.Stat. (1979). Accordingly, the trial court correctly determined that a jury question was presented on that issue. However, the issue of proximate cause is separate from the question of the applicability of the statutory limitation of liability. If the loss is not the proximate result of the hotel’s fault or negligence, then there is no liability and obviously a limitation of liability is inapplicable. Only if the hotel’s fault or negligence is the proximate cause of the loss, do the Section 509.111 limitations on liability become operative.

There were no issues of fact as to the applicability of Section 509.111 in the instant case. It was not disputed that the hotel did not comply with subsection (1) procedures nor was it disputed that Cop-pedge failed to follow subsection (2) procedures. Therefore, the question of applying the limitations of liability was a legal one for the trial court to determine. Krispy Kreme Doughnut Co. v. Cornett, 312 So.2d 771 (Fla.1st DCA 1975), cert. denied 330 So.2d 16 (Fla. 1976). We have determined that those limitations should have been applied here and since the statute limits liability to an amount less than that required for circuit court jurisdiction, the circuit court should have transferred the case to the county court.

The basis for Great American’s position on appeal is that in order for there to be liability on a fidelity bond insuring an employer for losses resulting from an employee’s fraudulent or dishonest act, the employee’s conduct must amount to more than negligence, mistake, carelessness, or incompetence. To constitute fraudulent or dishonest conduct, the employee must have some degree of intent to perform the wrongful act. Wilfulness and an intent to deceive are essential elements of “dishonest or fraudulent” acts. Eglin National Bank v. Home Indemnity Co., 583 F.2d 1281 (5th Cir. 1978).

Intent, being a state of mind, is not subject to direct proof and can only be inferred from the circumstances. Skold v. State, 263 So.2d 627 (Fla.3d DCA 1972). Thus, if there was any reasonable evidence upon which a jury could legally predicate a determination of intent, the trial court correctly denied the appellant’s motion for directed verdict. Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla.3d DCA 1977). In testing a motion for directed verdict, the movant admits all of the facts shown in the evidence and admits to every reasonable inference favorable to the adverse party. Lupoletti v. Miller, 269 So.2d 67 (Fla.4th DCA 1972). We hold that the evidence was sufficient, on the record, to raise a jury question on the issue of intent. Contrary to the insurer’s contention, the jury did not have to pyramid inference upon inference to conclude that the employee (Graziano) had the requisite intent. Rather, the circumstances established by the evidence were susceptible of a reasonable inference which would authorize recovery (the existence of intent) and were also capable of an equally reasonable contrary inference (no intent). Accordingly, a jury question was presented. Voelker v. Combined Ins. Co. of America, 73 So.2d 403 (Fla. 1954).

We therefore reverse the final judgment and remand this cause with instructions to transfer the case to the County Court for further proceedings consistent with our opinion. Because the jurisdictional threshold amount of damages for circuit court jurisdiction is not reached here it will be necessary to conduct a new trial.

REVERSED AND REMANDED WITH INSTRUCTIONS.

DOWNEY and MOORE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jorge L. DOMINGUEZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-2157.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Rehearing Denied Nov. 19, 1981.

      Britt Whitaker, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Jorge Dominguez appeals his conviction and sentence on March 21, 1980, for two counts of second-degree murder. We affirm the conviction but remand for correction of the sentence. 367 So.2d 651 (Fla. App.).

After reviewing each point raised by appellant, we find only one point which has merit. Appellant contends that the trial court erred in retaining jurisdiction for the first third of his sentence pursuant to section 947.16, Florida Statutes (Supp.1978).

Appellant was charged with an offense committed December 5, 1977. The effective date of the amendment to section 947.-16 allowing the trial court to retain jurisdiction to review a parole commission release order during the first third of an offender’s sentence was June 19, 1978.

Appellant’s contention is correct. The amendment to section 947.16(3), Florida Statutes (1978), is an ex post facto law as applied to him. Thus, we remand this cause and direct the trial court to delete from the appellant’s sentence the trial court’s reservation of jurisdiction. State v. Williams, 397 So.2d 663 (Fla.1981); Rodriguez v. State, 380 So.2d 1123 (Fla.2d DCA 1980).

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


author: ORFINGER, Judge.

text:
    Renata FIORI, Appellant, v. J. David McFADDEN and Penny McFadden, his wife, and State Farm Fire and Casualty Company, Appellees.
    No. 80-1133.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Rehearing Denied Nov. 17, 1981.

      Richard D. Bertone, Holly Hill, and Edward I. Matz, Daytona Beach, for appellant.
    Haas, Boehm, Brown & Rigdon, P. A., Daytona Beach, for appellees.
   ORFINGER, Judge.

The issue on appeal is whether the trial court erred in entering a summary final judgment in favor of appellees in this slip and fall case.

Appellant (plaintiff below) is the mother of appellee Penny McFadden and was staying at the home of her daughter and son-in-law on an extended visit when she slipped and fell on a throw rug placed on a terrazzo tile kitchen floor in the McFadden home. Alleging that the property owners negligently maintained a dangerous condition in their home of which they were or should have been aware, and that they negligently failed to warn her of that dangerous condition of which she was not aware, appellant filed suit for the injuries which she says she suffered as a direct result of the fall.

Appellee supports the summary final judgment by saying that the record is clear that the property owners had no duty to warn appellant of the condition of the premises because their knowledge was not shown to be superior to hers. In Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), this court pointed out that while the duty to warn does not arise if the knowledge of the invitee is equal to or superior to that of the landowner, the discharge of the duty to warn does not discharge the duty to maintain the premises in a reasonably safe condition by correcting dangers of which the occupier has actual or constructive notice. While the duty to warn may have been discharged, there still remains the discharge of the duty to maintain the premises as an issue to be resolved by a jury. Jackson v. Williams, 385 So.2d 190 (Fla. 5th DCA 1980). See also Squitieri v. Aetna Casualty & Surety Company, 382 So.2d 730 (Fla. 5th DCA 1980).

Appellee asserts also that the family immunity doctrine espoused in Orefice v. Albert, 237 So.2d 142 (Fla.1970) and its progeny also supports the summary judgment, but appellee offers no authority to substantiate that position. Here, the suit is by a mother against her married daughter and the daughter’s husband, both of whom the mother was visiting. The family immunity doctrine has not been extended beyond members of the nuclear family.

The summary final judgment is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

SHARP, J., dissents without opinion.

      . Nuclear family: a self-contained family unit consisting of a mother and father and their children. The American Heritage Dictionary of the English Language (1979).


author: COWART, Judge.

text:
    Jerome S. STECHER and Florence Stecher, his wife, Appellants, v. Hoyt J. FRANKLIN, Appellee.
    No. 80-1420.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Rehearing Denied Nov. 17, 1981.
    C. Michael Duncan of Duncan & Duncan, Tavares, for appellants.
    Tom K. Dougherty, Clermont, for appel-lee.
   COWART, Judge.

This is an appeal from a judgment of specific performance of an agreement to convey land.

The trial court found that appellant Jerome S. Stecher agreed to convey a 30 foot strip of land to appellee in exchange for a lawnmower and that appellee had fully performed by delivering the lawnmower. The land was jointly owned by appellant Jerome S. Stecher and his wife Florence. The trial court decreed specific performance and ordered both appellants to convey the land to appellee. There is record evidence which the trial court could properly find to be competent, satisfactory, clear, definite and certain and, therefore, sufficient to establish a case for specific performance of a contract for the sale of real property. However, that evidence indicates only an agreement by Mr. Stecher and is insufficient to indicate that in dealing with appel-lee Mr. Stecher was acting with that full specific knowledge, consent and acquiescence of Mrs. Stecher necessary under Murray v. Sullivan, 376 So.2d 886 (Fla. 1st DCA 1979), for a finding that he was acting as her agent. Neither is there sufficient evidence to establish that Mrs. Stecher was estopped to deny that Mr. Stecher was acting for her. See Parrish v. Swearington, 379 So.2d 185 (Fla. 1st DCA 1980); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla.3d DCA), cert. denied, 238 So.2d 105 (Fla.1970).

Appellee is necessarily relegated to his right to recover money damages for breach of the agreement found by the trial court. Therefore, the judgment for specific performance is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Unatin v. Hudon, 383 So.2d 1131 (Fla. 5th DCA 1980); Hi-Acres Groves Inc. v. Bassett, 338 So.2d 1076 (Fla. 4th DCA 1976); Scott v. Anchor Inn Apartments, Inc., 282 So.2d 640 (Fla. 1st DCA 1973).


author: BERANEK, Judge.

text:
    Cyril C. JANKE and Aileen L. Janke, his wife, Appellants, v. CORINTHIAN GARDENS, INC., Reserve Insurance Company, and Corinthian Development Corporation, Appellees.
    No. 78-567.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 1981.
    Rehearings Denied Dec. 2, 1981.

      John M. Brumbaugh and Scott D. Shef-tall of Floyd, Pearson, Stewart, Richman & Weil, P. A., Miami, for appellants.
    Robert M. Klein of Stephens, Schwartz, Lynn & Chernay, P. A., Miami, for appel-lees, Corinthian Gardens, Inc. and Reserve Ins. Co.
    Robyn Greene and Sharon L. Wolfe of Greene & Cooper, P. A., Miami and Corlett, Merritt, Killian & Sikes, P. A., Miami, for appellee, Corinthian Development.
    William D. Ricker, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee, Poly Resins, Inc.
    Alan B. Whitaker, Jr. of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Fort Laud-erdale, for appellee, Tremco.
   BERANEK, Judge.

This is a plaintiffs’ appeal from adverse judgments in a suit for personal injuries. On October 29, 1975, the plaintiff was a social guest of a condominium unit owner when he slipped and fell on the condominium garage roof parking deck which was wet. It was raining or misting at the time of the accident. Plaintiff sued the condominium association and the original developer for injuries allegedly sustained in the fall. Suit was also brought against the insurance company providing coverage for the condominium association. At the close of the evidence the trial court directed a verdict for the developer on the theory that the condominium association had taken over operation and management of the building and that the developer/defendant was no longer responsible for the alleged slippery condition of the parking deck. The case was submitted to the jury against the condominium association, and the jury returned a verdict in favor of this remaining defendant. The jury answered a special interrogatory finding that the association was not guilty of negligence. Plaintiff appeals raising numerous issues as to both defendants. We affirm.

The basic positions of the parties at trial were as follows. Appellant walked across the wet parking deck accompanied by his friend, a unit owner. He slipped and fell but got up and immediately proceeded to his car and drove away. There were no signs of injury until substantially later. Plaintiff asserted liability against the condominium association on the basis of Section 718.113(1), Florida Statutes (1977), which imposes upon condominium associations the duty to maintain the common elements. The evidence established that the association had assumed control of the building some nine months before the accident and was actively engaged in the duty of maintaining the common elements in general and the parking deck in particular. Parking was provided in a multi-story structure. The deck was covered by a waterproofing membrane which was defective in that it had been leaking and peeling for several years. This condition initially developed while the building was still under the control and operation of the developer. Approximately nine months before the accident, control and operation of the building had been turned over to the condominium association. The association through its directors, officers and a special committee was concerned with the defects in the deck covering. Inspections of the deck were carried out independently by both the developer and the association at various times. It is conceded by both the developer and the association that they were involved in trying to remedy the conditions of peeling and leaking. Both defendants however strongly deny any knowledge of slipperiness. Further, there was abundant expert evidence that the deck was not, in fact, slippery. Plaintiff concedes he was not able to prove “actual knowledge of slipperiness.” It was plaintiff’s theory that the defendants were on inquiry notice and that more thorough and careful inspections of the parking deck would have disclosed the alleged slippery condition. As a defensive position, the association also contended it relied upon the developer to fix the defects. Plaintiff’s liability theory was that the developer voluntarily assumed the duty to repair the deck even though it had no legal duty to do so. Plaintiff asserted that this voluntary assumption of a duty to repair entailed liability under the concepts of Restatement (Second) of Torts § 324A (1965). Judgments were entered for both defendants based upon the directed verdict for the developer and the jury verdict for the association.

We deal initially with the arguments regarding the condominium association. All parties agree that the association had the duty to maintain and repair the parking deck. Plaintiff raises four points as to the association: (1) curtailment of closing argument; (2) jury instructions regarding notice to agents of the association in individual rather than corporate capacity; (3) admission of test results and samples; and (4) various evidentiary rulings. We conclude that no prejudicial error has been demonstrated and thus affirm the judgment based on the jury verdict.

The curtailment of closing argument related to limitations stemming from the directed verdict in favor of the defendant developer. The plaintiff and the defendant association were both precluded from arguments regarding placing blame on the developer who was released from the suit at the close of all the evidence. The appellant’s objections in this regard are not clear in the record and we find no demonstration of prejudice.

As to the second point, the court instructed the jury that knowledge acquired by officers or agents of a corporation while not acting on behalf of the corporation is not imputable to the corporation. The factual situation giving rise to the instruction was that certain agents of the condominium association acting in a purely social context learned of matters concerning the roof deck. The issue was whether the condominium association was on notice of all such facts. The court’s instruction was in accord with the law on this subject and we find no error in this regard. Dickson v. Graham-Jones Paper Co., 84 So.2d 309 (Fla.1955); C. & H. Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. 2d DCA 1965).

The defendant association introduced certain test results and samples of the deck covering which had been removed and tested after the accident. The testimony of two experts who examined the material was offered. Both experts were of the opinion that the material was not slippery, and it appears this testimony was relied upon by the jury in their finding of no negligence on the part of the association. The admission of this evidence did not contravene the rules established in Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962 (Fla. 3d DCA 1976). Although the test samples were not shown to have been from the precise location of the fall, this was not unfair since plaintiff himself did not know the precise location nor could he give a precise description of the quality of the covering where he fell. Plaintiff himself testified the place he fell was wet and looked “shiny” and “rough” and “smooth.” We hold the trial court did not commit abuse of discretion in concluding the test samples were representative and in admitting them and the test results.

We conclude the jury’s verdict of no negligence was adequately supported by the evidence. Of particular importance was the expert testimony that the deck covering was not slippery and performed reasonably well in various scientific tests and comparisons.

We next consider the directed verdict in favor of the developer. This directed verdict was granted on the theory that the developer had relinquished actual and formal control of the building to the condominium association. Plaintiff’s theory was that the developer, without any legal duty, voluntarily assumed a duty to correct the leaking and peeling and that having done so, was on inquiry notice of all other defects (slipperiness), which could have been discovered in the exercise of due care. We need not rule directly on this issue. It is clear that the condominium association had the statutory duty to maintain and care for the parking deck. Notwithstanding any voluntary- action by the developer, the association had hired its own architect to study the problem and make recommendations. The association was actively engaged in attempting to remedy the problems. The jury found the association not to be negligent and all indications are that the crucial evidence was the testimony of the two experts to the effect that the deck covering was simply not slippery. Under the circumstances, if the directed verdict for the developer was error it was harmless due to the jury verdict in favor of the association. See Tarwacki v. Royal Crown Bottling Co. of Tampa, Inc., 330 So.2d 253 (Fla. 2d DCA 1976); Toomey v. Tolin, 311 So.2d 678 (Fla. 4th DCA 1975), cert. dismissed, 336 So.2d 604 (Fla.1976). Even if the association had contracted with the developer to remedy the defects in the deck, this would not absolve the association from liability for breach of its own duty to plaintiff. We thus conclude the jury’s verdict in favor of the association which had the primary duty regarding the parking deck renders harmless any error in the direction of the verdict as to the developer. The judgment in favor of the developer is therefore affirmed.

AFFIRMED.

MOORE and HURLEY, JJ., concur.

      . Suit was brought by Mr. and Mrs. Janke for personal injuries sustained by Mr. Janke and for consequential damages sustained by his wife. Reference to the plaintiffs herein is in the singular.


author: RYDER, Judge.

text:
    William F. YODER, Appellant, v. SHELL OIL COMPANY, Appellee.
    No. 81-92.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Rehearing Denied Nov. 12, 1981.

      Charles R. Holley, Naples, for appellant.
    Kenneth A. Hoffman and Thomas R. Shahady of Cooper, Shahady, Frazier & Pu-gatch, Fort Lauderdale, for appellee.
   RYDER, Judge.

This appeal deals with the tort of intentional interference with a contract. William Yoder, a Shell Oil dealer, claimed damages from Shell Oil Company for wrongful interference with a contract for the sale of his dealership to American Way Enterprises, Inc.

At trial, Yoder testified that he had decided to sell his Shell dealership and entered into a contract of sale with American Way whom Shell Oil had previously approved. Thereafter, according to Yoder, an employee of Shell Oil told American Way that it was paying too much for the purchase of the business. As a result, American Way did not go ahead with the contract.

Over Yoder’s objection, the court gave a jury instruction on the privilege to interfere based upon the “Prosser” test of privilege. The instruction read in part:

You should find that defendant’s actions were privileged if you find that the defendant had a present existing economic interest of its own to protect, such as the ownership or condition of property, or a prior contract of its own, or financial interest in the affairs of the person persuaded or who caused the breach.

The jury returned a verdict for Shell Oil upon which the court entered judgment. Yoder appeals, and among other things, he challenges the validity of the instruction set out above.

The area of the law dealing with interferences with a contract has not settled into a set of definite rules. However, it is clear that the privilege to interfere in a contract because of a financial interest is not unlimited. Frank Coulson, Inc.-Buick v. General Motors Corp., 488 F.2d 202 (5th Cir. 1974). The better view is that it is necessary for the interfering party to have a financial interest in the business of the third party which is in the nature of an investment in order to justify the interference. Therefore, the jury instruction as given was incorrect since the financial interest used in the jury instruction was not limited to one in the nature of an investment. Furthermore, a privilege to interfere with a third party’s conduct does not include the purposeful causing of a breach of contract. The instruction also did not cover that limitation.

Because of our disposition of the jury instruction question, it is not necessary to discuss appellant’s other points on appeal. We REVERSE the judgment and REMAND the case for a new trial.

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

      . W. Prosser, Law of Tort, § 129 (4th Ed. 1971).

      . Restatement 2d, Torts, § 767 (1979).

      .Restatement 2d, Torts, § 777 (1979).


text:
    CITY OF LAKELAND, Appellant, v. FLORIDA SOUTHERN COLLEGE, Appellee.
    No. 81-1072.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Rehearing Denied Nov. 12, 1981.
    David E. Cardwell, City Atty., Lakeland, for appellant.
    Ernest M. Jones, Jr. of Jacobs, Valentine, Groseclose and Miller, P. A., Lakeland, for appellee.
    Robert E. Puterbaugh of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Lakeland, for Dwight I. Pugh, amicus curiae.
   RYDER, Judge.

The City of Lakeland appeals from the circuit court’s grant of certiorari to review a decision of the City’s Zoning Board of Adjustments and Appeals. We hold that the lower court applied an incorrect standard of review, and we reverse.

Appellee College, desiring to construct a multi-story dormitory, elicited a ruling from the City’s building inspector that the proposed dormitory would be subject to ordinary residential height restrictions. Appel-lee then appealed that unfavorable administrative determination to the Zoning Board of Adjustments and Appeals. After a hearing, the board upheld the determination of the building inspector. Appellee then filed a petition for writ of certiorari in circuit court, seeking again to overturn the residential determination. The circuit court found the decision of the zoning board not supported by competent evidence because incorrect definitions for the terms were used. The court found the use to be institutional rather than residential and reversed the zoning board.

The parties below do not argue that appellant City has adopted zoning review pursuant to the terms of section 163.-250, Florida Statutes (1979). Likewise, the submitted ordinances do not suggest that the City adopted these provisions. See Bell v. City of Sarasota, 371 So.2d 525 (Fla.2d DCA 1979). Absent adoption of chapter 163, there is no appeal from the decision of the Zoning Board of Adjustments. The only judicial review permitted is pursuant to common law certiorari. See G. W. De velopment Corp. v. Village of North Palm Beach Zoning Board of Adjustment, 317 So.2d 828 (Fla. 4th DCA 1975). The circuit court, under such a petition for common law certiorari, was limited to a narrow determination of (1) jurisdiction below and (2) whether the proceedings below departed from the essential requirements of law. E. g., Gulf Cities Gas Corp. v. Cihak, 201 So.2d 250 (Fla.2d DCA 1967).

There is no question of jurisdiction raised below. We fail to see how the board’s construction of the ordinance below could be a departure from the essential requirements of law. The applicable zoning code fails to clearly place the dormitory in either a residential category with a restricted height or in an institutional category with higher permitted height. That the zoning board performed its function to resolve the question by classifying the dormitory as residential does not require reversal on common law certiorari. The board considered provisions of other ordinances, listened to representatives of appellee, considered the decision of the building inspector, and made a decision. That decision is not clearly inconsistent with any law or ordinance. No departure from the essential requirements of law thus appears.

We REVERSE the grant of certiorari below and REMAND with instructions to reinstate the order of the Zoning Board of Adjustments and Appeals.

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


text:
    Michael Raymond FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 80-833.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.
    Rehearing Denied Dec. 2, 1981.
    Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant has raised two points in his brief which we conclude do not demonstrate reversible error.

At oral argument appellant contended additionally that the sentence imposed violates the rule laid down in Villery v. Florida Parole & Probation Com’n, 396 So.2d 1107 (Fla.1981), and appellant urges that the case be remanded for a new sentencing under the Villery guidelines.

Accordingly, we affirm the judgment appealed from in all respects, but we reverse the sentence and remand the cause with directions to vacate the present sentence and resentence appellant in accordance with the guidelines set forth in the Villery decision.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


author: GRIMES, Judge.

text:
    BUREAU OF CRIMES COMPENSATION, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Appellant, v. Cary J. WILLIAMS, Appellee.
    No. 81-765.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1981.
    Rehearing Denied Nov. 16, 1981.
    Michael J. Rudicell, Dept, of Labor & Employment Security, Tallahassee, for appellant.
    Stephen L. Rosen of Morris & Rosen, Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from an award of attorney’s fees made in connection with proceedings under the Florida Crimes Compensation Act.

On April 11, 1980, Cary J. Williams filed an application for benefits pursuant to the Crimes Compensation Act for injuries which he sustained in an incident that occurred on March 28, 1980. The Bureau of Crimes Compensation denied Mr. Williams’ application on July 7, 1980, and he filed a notice of appeal on August 21,1980. Sometime thereafter, he retained counsel and pursued his appeal to a hearing before a deputy commissioner of the Department of Labor and Employment Security. After the hearing, the deputy commissioner entered an order in Mr. Williams’ favor, awarding him disability benefits, payments for certain medical bills, and attorney’s fees. The Bureau of Crimes Compensation appeals from the order, challenging only the award of attorney’s fees. We have jurisdiction. § 120.68, Fla. Stat. (1979).

When the legislature originally enacted the Crimes Compensation Act, it included a provision for the award of attorney’s fees to an applicant. § 960.19, Fla. Stat. (1979). However, in 1980, the legislature repealed the attorney’s fees provisions of the act, effective July 1, 1980. Ch. 80-146, § 21, Laws of Fla. Thus, in the hearing before the deputy commissioner, the Bureau of Crimes Compensation argued that Mr. Williams was not entitled to an award of attorney’s fees since the award would occur after July 1, 1980. The deputy commissioner found, however, that Mr. Williams was entitled to attorney’s fees because the attorney’s fees provisions of section 960.19 were still in effect at the time Williams was injured. After careful study, we have concluded that Mr. Williams was not entitled to attorney’s fees.

An award of attorney’s fees to a litigant is in derogation of the common law and is allowed only when provided for by statute or contract. Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla. 1973). Repealing statutes apply retrospectively in all situations where a right or remedy has been created wholly by statute. Thus, when the legislature repeals a statute, the right or remedy created by the statute falls with it. Yaffee v. International Co., 80 So.2d 910 (Fla.1955). Since all rights under the Crimes Compensation Act are statutory, Mr. Williams had no vested cause of action against the state for any recovery other than that which the act would allow. See Gryziec v. Zweibel, 74 A.D.2d 9, 426 N.Y.S.2d 616 (1980).

Mr. Williams can hardly claim that the result reached here is unfair to him. The record shows that he did not seek a lawyer’s help until after July 1,1980. Consequently, by the time he became obligated to pay his attorney, there was no provision in the statutes for attorney’s fees. We do not pass on whether Mr. Williams could recover any fees if his attorney had performed services prior to July 1, 1980.

We reverse the award of attorney’s fees. Otherwise, we affirm the deputy commissioner’s order.

HOBSON, A. C. J., and RYDER, J., concur. ;


author: SCHEB, Chief Judge.

text:
    Donald Duane FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 81-398.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1981.
    Rehearing Denied Nov. 16, 1981.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Donald Duane Fletcher challenges the ev-identiary basis of his conviction for aggravated assault. Additionally, he contends that the court erred in imposing a general sentence in respect to two other offenses and in requiring restitution as a condition of probation.

The state filed an information charging Fletcher with aggravated assault and with separate counts of leaving the scene of an accident and failing to give his name, address and vehicle registration number at an accident which resulted in injury. He pled not guilty to the assault count and nolo contendere to the other two charges. The jury found him guilty of aggravated assault, and the court sentenced him to five years imprisonment to be suspended after one year, followed by four years probation for that offense. In addition, the court imposed a general sentence of one year for the two offenses to which he pled nolo contendere. The sentences imposed were to run concurrently. The court also required Fletcher “to make restitution as determined by his probation supervisor.”

We have examined the record and find no merit to appellant’s contention that his conviction for aggravated assault was not supported by the evidence. We do, however, find that the court erred in respect to the sentence imposed. While it was not error to adjudicate Fletcher guilty of the two offenses to which he pled nolo contendere, State v. Moss, 206 So.2d 692 (Fla. 2d DCA 1968), he correctly points out that the court erred in imposing a general sentence on him for separate convictions of leaving the scene of an accident and for failure to give his name, address and vehicle registration number. Dorfman v. State, 351 So.2d 954 (Fla. 1977).

Moreover, the order requiring Fletcher “to make restitution as determined by his probation supervisor” is also improper in that it unlawfully delegates a judicial responsibility to a nonjudicial officer. Kroenke v. State, 366 So.2d 46 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979). By delegating such authority to a probation officer, the court did not afford Fletcher an opportunity to be heard on the amount of damages caused by his criminal conduct and the reasonableness of the amount of restitution in light of his ability to pay. Fresneda v. State, 347 So.2d 1021 (Fla. 1977); Reeves v. State, 372 So.2d 1016 (Fla. 2d DCA 1979); Goodson v. State, 400 So.2d 791 (Fla. 2d DCA 1981).

We also note that since the trial court sentenced Fletcher, the Supreme Court of Florida has decided Villery v. State, 396 So.2d 1107 (Fla. 1980). Villery holds that a probationer who has been placed on probation with a period of incarceration of one year or more is entitled, on application to the trial court, to have the sentence corrected. The court held that Villery applies retroactively and encompasses the so-called split sentence where incarceration is followed by a period of probation as well as where incarceration is made a condition of probation. Id., at 1111.

Accordingly, we affirm appellant’s convictions. However, we vacate the general sentence imposed by the court for leaving the scene of an accident and failing to furnish name, address, and vehicle registration number, as well as the requirement that Fletcher make restitution as determined by his probation officer. On remand the trial court shall impose a separate sentence for each of the two offenses to which appellant pled nolo contendere. Further, the trial court may consider imposing restitution consistent with the requirements outlined in this opinion. Finally, on remand the appellant may, at his option, make application to the trial court to conform his basic sentence to the requirements of Vil-lery. The appellant shall be entitled to be present at the resentencing.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings.

HOBSON and OTT, JJ., concur.

      . For our comments on the application oí the principles of Villery, see Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981), and Coffey v. State, 403 So.2d 1152 (Fla. 2d DCA 1981).


author: MOORE, Judge. BERANEK, Judge,

text:
    Lewis W. MILES II, Appellant, v. Patricia KATZ, Palmland Development Corp. and Albert P. Boltri, Appellees.
    No. 80-75.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Rehearing Denied Dec. 1, 1981.

      Daniel H. Jones of Moyle, Jones & Flanagan, P.A., West Palm Beach, and Lewis W. Miles II, Miami, for appellant.
    Phillip T. Crenshaw of Crenshaw & Cren-shaw, Lake Worth, for appellee/intervenor, Albert P. Boltri.
   MOORE, Judge.

Lewis W. Miles II, an attorney, appeals from a judgment in garnishment holding his charging lien inferior to a judgment lien and setting aside a security interest as a fraudulent conveyance pursuant to Section 726.01, Florida Statutes (1979). We hold that a charging lien is superior to a judgment lien obtained after commencement of an attorney’s services and that the court erred in setting aside the security interest as a fraudulent conveyance. Accordingly, we reverse.

The charging lien arose from the appellant’s contingent fee arrangement with Palmland Development Corporation in a mortgage foreclosure action. The agreement obligated the appellant to defend Palmland in the foreclosure action and to file a counterclaim to have the mortgage and note cancelled. Such cancellation would result in the recovery of $22,000 which was being held in escrow as security for the mortgage and note. After commencement of the attorney’s services, pursuant to the contingent fee arrangement, the appellee, Boltri, a former employee of Palmland, obtained a judgment against Palmland for unpaid salaries. Palmland was then successful in obtaining a final judgment for the $22,000 and cancelling the mortgage and note. The $22,000 which was transferred to the appellant’s trust account is the subject of this garnishment action.

The appellant claimed entitlement to the fund by virtue of a charging lien resulting from the contingent fee arrangement and also from a security interest held by him to secure an antecedent debt of $16,000 for past legal services. Subsequent to the initiation of Boltri’s suit for unpaid salaries, Palmland executed a $16,000 demand note in favor of the appellant for past legal services. It also made appellant a secured party by executing a financing statement covering “. . . any interest, legal or equitable, in any real property or personal property, stock, goods or inventory, or any proceeds of litigation. ...” At the time of this garnishment action, the $22,000 fund represented Palmland’s only asset.

The trial court found that the attempted creation of a security interest for the $16,-000 antecedent debt constituted a fraudulent conveyance pursuant to Section 726.01, Florida Statutes (1979) and, therefore, was voidable at the instance of Boltri. The trial court also found that Boltri’s judgment lien had priority over the appellant’s charging lien.

The trial court concluded that the presence of several indicia of fraud established a presumption that Palmland created the security interest with the intent to delay, hinder or defraud its creditors. These indi-cia of fraud included a close business relationship between Palmland and its attorney, the fact that Palmland was close to insolvency, that the transfer included all or substantially all of Palmland’s assets, that the note was payable on demand, and that the note and financing statement were executed three days after Boltri served Palm-land with his summons and complaint. While any one of these facts, standing alone, may amount to little more than a suspicious circumstance, several of them combined together may afford a basis from which fraud may be inferred. Banner Construction Corporation v. Arnold, 128 So.2d 893 (Fla. 1st DCA 1961). The record, however, does not indicate that the appellant actually participated in Palmland’s alleged fraudulent purpose or that he was not acting in good faith in accepting the note and security interest.

A debtor’s preferential transfer of property to a creditor cannot be declared fraudulent as to other creditors, although the debtor in making it, intended to defeat their claims, and the preferred creditor had knowledge of such intention if the preferred creditor did not actually participate in the debtor’s fraudulent purpose. See, Vickers v. Glenn, 102 Fla. 535, 136 So. 326 (1931). If the only purpose of the creditor is to secure his debt, and the property is not worth materially more than the debt, the transaction is not fraudulent. Nelson v. Cravero Constructors, Inc., 117 So.2d 764 (Fla. 3rd DCA 1960). And this is so, although the preferred creditor knows that the debtor is insolvent, that the transfer is of all of the debtor’s property, that there are other creditors, that the debtor is actuated solely by the desire to defraud his own creditors, and the effect of the debtor’s action will be to defeat them. The preferred creditor, however, must act in good faith, but if he takes the conveyance for the purpose of aiding in the fraud, it is void. See, Nelson, supra. The record here does not contain substantial competent evidence that the appellant actively participated in Palmland’s alleged fraudulent purpose to defeat the claims of other creditors, or that the appellant accepted the security interest for the purpose of aiding in the alleged fraud. Furthermore, the parties executed the financial statement to secure an antecedent debt of $16,000. After subtracting the contingent fee from the $22,000 secured fund, insufficient money would remain to satisfy the $16,000 antecedent debt. Consequently, the property transferred was not worth materially more than the debt it secured. Accordingly, the trial court erred in setting aside the security interest as a fraudulent conveyance.

The lower court also erred by giving the Boltri judgment priority over the attorneys fee lien. A charging lien is the right of an attorney to have the expenses and compensation due him for his services in a suit secured to him in the judgment, decree or award for his client. The lien attaches to the judgment but relates back and takes effect from the time of the commencement of the services rendered in the action. Randall v. Archer, 5 Fla. 438 (1854); 4 Fla. Jur.2d, Attorneys at Law, § 162; 7 Am. Jur.2d, Attorneys at Law, § 332.

The attorney fee lien has priority over judgments obtained against the client subsequent to the commencement of the attorney’s services. It is only inferior to judgments entered prior to the commencement of the services. Therefore, since Bol-tri obtained his judgment after the appellant entered into the contingent fee agreement with Palmland for the foreclosure case, the attorney’s charging lien on the proceeds of the foreclosure case has priority over Boltri’s judgment lien. This result allows the attorney who created the funds to be paid for his services.

The appellee relies upon In Re: Diplomat Electric, Inc., et al., 499 F.2d 342 (5th Cir. 1974). The Diplomat case is distinguishable. It presented a question of priority between setoffs and charging liens. The present case does not involve a setoff. The existence of a setoff changes the legal issues involved by affecting the amount of the fund subject to a charging lien. To the extent that the Diplomat case may be interpreted as being inconsistent with our conclusion here, we disagree with Diplomat.

We reverse the trial court’s judgment setting aside the appellant’s security interest as a fraudulent conveyance and holding that the appellant’s charging lien is inferior to Boltri’s judgment lien. We remand this case for further proceedings consistent with this opinion.

GLICKSTEIN, J., concurs.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially.

I concur specially to add that the trial court here did not find fraudulent participation on the part of the preferred creditor who is now the appellant before this court. The court set aside the security interest on the basis of the presumption that the debt- or, Palmland, created this security interest with the intention of defrauding its creditors. The trial court did not conclude that the preferred creditor, Miles, participated in this fraud.


text:
    James Lee BARNES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1521.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Pollack, Komorowski & Headley and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

This is an appeal from a summary denial of a motion to vacate, pursuant to F.R.Cr.P. 3.850.

The petition alleged incompetence of counsel, as evidenced by trial counsel’s failure to object to the trial court’s failure to charge the jury as to the crimes of assault with intent to commit robbery and robbery with a weapon as lesser offenses to the charges of robbery, unlawful possession of a firearm while engaged in a criminal offense, and unlawful possession of a firearm by a convicted felon, when the trial court had in fact agreed to give said charges.

Clearly, the failure to instruct on the lesser included offense of assault with intent to commit robbery would constitute reversible error under the holding in Lomax v. State, 345 So.2d 719 (Fla.1977), if raised on direct appeal. However, in the instant case, that point is not before us in that posture. The claim here is that counsel was ineffective because of a failure to object to the failure to charge the jury on this point. In order to determine competency of counsel based upon his alleged failure to act, it is necessary to look at the circumstances surrounding that alleged failure.

In examining the entire jury charge, it clearly appears that the trial court did, in fact, charge the jury as to the crime of robbery with a weapon. As to the failure of the trial court to charge the jury on the crime of assault with intent to commit robbery, the record shows that the trial court charged the jury as to aggravated assault, a facet thereof being assault with intent to commit robbery. Therefore, considering the charges as a whole, the appellant has failed to show wherein he was prejudiced by counsel’s failure to act which must be shown to sustain the allegation of ineffective assistance of counsel. Meeks v. State, 382 So.2d 673 (Fla.1980).

The allegations of appellant’s petition to vacate being refuted on the face of the record, the order of the trial court summarily denying the motion be and it is hereby affirmed.

Affirmed.


author: HENDRY, Judge.

text:
    J. A. BELCHER, individually and as Co-Trustee of the J. A. Belcher Trust and as Co-Trustee of the Margaret Belcher Gerhart Trust; J. A. Belcher, Jr., as Co-Trustee of the J. A. Belcher Trust; E. N. Belcher III, individually and as Co-Trustee of the Margaret Belcher Gerhart Trust; Jewel Lee Kallusch; Frank W. Gerhart; Lynn McLeod Nichols; Janet McLeod Varnado; and Peter L. Pollock, Appellants, v. FIRST NATIONAL BANK OF MIAMI et al., Appellees.
    Nos. 78-2207, 78-2210.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin and Alan G. Greer, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Steel, Hector & Davis and John M. Bark-ett and Wilson Smith, Miami, for appellees.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

These consolidated appeals raise the issue whether a pre-judgment defendant may appeal a summary judgment exonerating a co-defendant. We hold that such an order is non-appealable and dismiss.

Nora Manning, a registered real estate broker, was the plaintiff in this action to recover a brokerage commission. The various defendants are owners and trustees of a tract of land in Broward County. Ms. Manning claims that J. A. Belcher, Sr. (J. A.) part owner of the land, had apparent authority to act for the other owners and trustees and gave her an oral listing on the property offering a ten percent commission upon its sale. J. A. claims that no promises were made. Two potential buyers for the property were produced, but the deals fell through and Ms. Manning filed this suit. Her complaint sought damages for breach of the commission agreement and willful and malicious interference with a business arrangement. All of the defendants moved for summary judgment. After a hearing, the lower court granted summary judgment for appellee First National Bank of Miami (FNBM), and denied the motion with regard to the other defendants. Final judgment was entered for the bank, and the remaining defendants, appellants herein, seek review of this order.

Essentially, appellants submit that the trial court’s order granting summary judgment for their codefendant FNBM was correct — but argue that they also should have been granted summary judgment. Appellants contend that no material factual differences exist among the positions of the various defendants, and therefore maintain that summary judgment should have been granted for all. Recognizing, however, that they may not appeal from the denial of their own motion for summary judgment, Danford v. City of Rockledge, 387 So.2d 967 (Fla. 5th DCA 1980); Mooney v. Integon Life Insurance Co., 368 So.2d 957 (Fla.3d DCA 1979); Fla.R.App.Pro. 9.130, appellants instead challenge the summary judgment in favor of their codefendant FNBM.

For many years the rule in Florida was that a defendant could not appeal a judgment exonerating a codefendant because there was no contribution among tort-feasors. Jackson v. Florida Weathermakers, 55 So.2d 575 (Fla.1951); O’Brien v. Francis, 231 So.2d 13 (Fla.3d DCA 1970); see also Durbin Paper Stock Co. v. Watson-David Insurance Co., 167 So.2d 34 (Fla.3d DCA 1964), cert. denied, 172 So.2d 596 (Fla. 1965). Appellants argue that this rule no longer pertains, and relying upon Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), claim a right to assert this error on appeal.

In Popovich, supra, the Florida Supreme Court affirmed the decision of the First District in Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), and held that the right of a judgment defendant to appeal from a judgment exonerating another code-fendant is a necessary consequence of Florida’s Uniform Contribution Among Tort-feasors Act, Section 768.31(4)(f), Florida Statutes, which destroys inchoate contribution rights against an exonerated codefend-ant.

We agree with appellants that Popovich extends to judgment defendants the right to appeal adverse rulings exculpating co-defendants. However, appellants may not benefit from Popovich at this time because they are not yet judgment defendants. In the present posture of this case, no liability has been determined; there has been no trial resulting in a judgment against appellants. While FNBM has escaped on the basis of summary judgment, there is no certainty that appellants will not enjoy a like result at the hands of the jury. No case or controversy presently exists for us to resolve. Consequently, we hold that the order under review is non-appealable and dismiss.

We now consider FNBM’s request for attorney’s fees on this appeal pursuant to Section 57.105, Florida Statutes (Supp. 1978). This section authorizes the award of attorney’s fees to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. Although such fees are authorized on appeal, T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980), and would not constitute a retroactive application of Section 57.105 since the statute took effect June, 1978 and this appeal was filed in November, 1978, Love v. Jacobson, 390 So.2d 782 (Fla.3d DCA 1980), we nonetheless find that they are not merited under the facts of this case. In light of the recent Popovich ruling, appellants’ position, although unsuccessful on the merits, was clearly not frivolous. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), pet. for rev. denied, 392 So.2d 1373 (Fla.1980); City of Deerfield Beach v. Oliver-Hoffman Corp., 396 So.2d 1187 (Fla. 4th DCA 1981).

Accordingly, the appeal is dismissed, and the request for attorney’s fees under Section 57.105 is denied.

Appeal dismissed.

        . We denied a prior motion by appellee FNBM to dismiss this appeal in order to give further consideration to the views expressed herein.

      . Plaintiff Manning did not appeal from the summary judgment granted to FNBM.

      .In light of our dismissal of this case, we express no view as to the applicability vel non of the Uniform Contribution Among Tort-feasors Act upon this litigation.

      . Since the judgment defendants in the Popo-vich cases were appealing a summary final judgment entered some eight or nine months prior to the final judgment which established their liability and the cases fail to address the procedural requirements necessary to appeal a judgment exonerating a codefendant, we read Popovich I and II to mean that appellants sub judice may appeal from the summary final judgment for FNBM within thirty days from rendition of an order determining their liability to plaintiff Manning. This interpretation of Po-povich will preserve appellants’ right to seek review of the order notwithstanding the thirty-day rule. See Fla.R.App.Pro. 9.110(b); Let’s Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla.3d DCA 1980).


author: JOANOS, Judge.

text:
    Roy F. STEPANEK, Appellant, v. Dovard EVERS, Sidney Golden, Lois Mabee, Samuel T. Stewart, Lois M. Stewart, Ray Villanueva, Washington Development Corporation, Briar Fox Properties, Inc., Washington National Investors, Inc., Mortgage Consultants, Inc., the above corporations being Florida Corporations, Appellees.
    No. ZZ-258.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    Rehearing Denied Nov. 25, 1981.
    Richard S. Hilmer, DeLand, for appellant.

      Barry L. Zisser of Zisser, Robison & Spohrer, Jacksonville, and James L. Harrison, Jacksonville, for appellees.
   JOANOS, Judge.

The single issue presented for review in this appeal is whether there was sufficient record activity to preclude dismissal for failure to prosecute under Fla.R.Civ.P. 1.420(e). We hold that the plaintiff/appellant’s filing of a notice of hearing within the year preceding the motion to dismiss for failure to prosecute was effective to prevent a Rule 1.420(e) dismissal. The notice set a hearing date for several outstanding motions filed by a defendant and was filed less than one year after the motions were filed. In ruling that the plaintiff’s complaint should be dismissed for failure to prosecute, the trial judge did not consider the effect of the notice of hearing. As stated by this Court in Thomas v. Estate of Deloach, 400 So.2d 204 (Fla. 1st DCA 1981), however, “courts have consistently held that a notice of trial or hearing is sufficient action to avoid the effect of a motion to dismiss under Rule 1.420(e).”

REVERSED and REMANDED for further proceedings consistent with this opinion.

ERVIN and WENTWORTH, JJ., concur.


text:
    Otha R. REDDICK, Appellant, v. LEON COUNTY SCHOOL BOARD and N. E. (Ed) Fenn, Superintendent, Appellees.
    No. XX-72.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    Robert I. Scanlan, Tallahassee, for appellant.
    James C. Massie of LaCapra & Massie, Tallahassee, for appellees.
   PER CURIAM.

Appellant Reddick appeals from a final order of the Leon County School Board which discharged him from employment with the board as a systems analyst and denied award of back pay. We affirm.

On March 5,1979, appellant was suspended with pay by letter from school superintendent Ed Fenn. The letter informed appellant that he was being suspended for erratic work behavior and operating his own private business when he should have been working for the school board. The letter further informed him that Fenn would seek his suspension without pay at the next regularly scheduled school board meeting, which was to be on March 6, 1979. Appellant was suspended without pay by the school board at the March 6 meeting, which neither appellant nor his attorney attended.

On April 11, 1979, Superintendent Fenn filed a formal notice of charges against appellant and the matter was referred to DOAH for a formal hearing pursuant to § 120.57(l)(a), Florida Statutes. The notice of charges alleged: (1) appellant was absent from work from February 15 through March 2, during which period he willfully neglected his duties at the data processing center; (2) on March 1, appellant committed misconduct in office in that he represented to his supervisor that, for medical reasons, he was unable to return to work when, in fact, he was operating a private business during regular school work hours; (3) appellant is guilty of willful neglect of duties and misconduct in office in that he operated a private business during regular school hours.

After hearing the evidence, the hearing officer recommended that the charges be dismissed and that appellant be reinstated with back pay. The school board then rejected the hearing officer’s conclusion, found appellant guilty as charged and dismissed him from employment pursuant to § 231.36, Florida Statutes. The board found that certain of the hearing officer’s findings, such as his finding that appellant had obtained a doctor’s excuse for his sick leave, were not based on competent substantial evidence since the doctor in question had not seen or examined appellant since November 1977, and he had not talked directly with appellant during the period in question. The board also rejected the hearing officer’s finding that, during his “sick leave,” appellant did not engage in a promotional tour in Texas on behalf of another business he owned. Appellant himself testified that he made the trip to Texas at the time the promotion was taking place, he solicited support for a “live burial” event, and he was able to visit numerous bars while there.

Appellant contends that the school board erred in rejecting the findings of the hearing officer in that the hearing officer’s recommended order was supported by competent substantial evidence. After reviewing all of the evidence in the record, we find a lack of competent substantial evidence to support the findings of the hearing officer and we find competent substantial evidence to support the findings of the school board.

Appellant also challenges the procedures used by the board in suspending and dismissing him. We find that the procedures used did not depart from the requirements of Florida law and constitutional mandates.

AFFIRMED.

McCORD, SHIVERS and JOANOS, JJ., concur.


author: FERGUSON, Judge.

text:
    Charles Wayne POLK, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1140.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Polk appeals his conviction and sentence for unlawful possession of a short-barreled shot-gun and unlawful possession of a firearm by convicted felon entered after plea of nolo contendere wherein he preserved the right to review the trial court’s denial of his motion to suppress a firearm and motion to suppress a certified copy of judgment and conviction and sentence. We affirm.

Testimony of Officer Fagan at the hearing on motion to suppress physical evidence was as follows: Fagan and his partner, Jennings, were on routine patrol during the late evening hours of December, 1978 when Fagan observed defendant “standing in the shadows” outside a convenience store as the store was closing. Only the two clerks were still on the premises. According to Fagan, “if you would have been inside the store, there was no way you could have seen him from that angle.” Two other factors directed the officer’s attention to the defendant: (1) the particular convenience store had been frequently robbed, and (2) defendant was wearing a jacket with a hood, and “it was pulled completely over his face and it was not a cool night.” The officers then drove into the parking lot of the store. Defendant turned to look in the direction of the officer and thereafter placed an object on the ground. The officers drove to within five to ten feet of the defendant with their automobile light shining on him. Officer Fagan ordered defendant to approach the police vehicle. After the second or third order defendant complied. Fagan then noticed a three or four inch bulge in the defendant’s jacket. Fa-gan inquired of the defendant his reasons for being in the area. Defendant initially responded he was waiting for a friend whose last name he could not recall. When the officer expressed disbelief of the story, defendant gave a different answer — that he had just been run off the highway by a number of guys who were bothering him. During the inquiry by Officer Fagan, Officer Jennings walked toward the area where defendant was seen to have placed the object and recovered a loaded short-barreled shot-gun. When Fagan saw what Jennings picked up he immediately reached into defendant’s pockets in the area of the bulge, and retrieved shot-gun shells. Defendant was questioned about ownership of the gun, and he answered that he found it. Defendant was then placed under arrest and advised of his rights.

By this appeal defendant challenges the initial investigatory detention on the grounds that there was no articulable suspicion of defendant’s involvement in criminal activity. This initial detention led to recovery of the firearm which defendant seeks to have suppressed. On the facts of this case we find a lengthy analysis unwarranted and affirm the detention and search on authority of Sections 856.021 and 901.21, Florida Statutes (1979); State v. Ecker, 311 So.2d 104 (Fla.1975), cert. denied, sub nom., Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); State v. Washington, 376 So.2d 1216 (Fla. 3d DCA 1979); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). We note further that defendant does not challenge his conviction for loitering and prowling.

As part of its proof in support of the charge of unlawful possession of a firearm by a convicted felon, the state offered a copy of the judgment of conviction and sentence which had been certified by the Clerk of the Dade County Criminal Court of Records which reflected, (1) defendant had been charged with the crime of robbery, (2) defendant had pleaded guilty to robbery, and (3) defendant had been sentenced to five years in the state penitentiary. See Dowling v. State, 210 So.2d 280 (Fla. 2d DCA 1968). Defendant filed a pre-trial motion to suppress the copy of judgment.

Now, nine years after conviction and sentence, defendant claims by the motion that the trial court failed to advise him of the constitutional rights he would abandon by pleading guilty, and more particularly, of the consequences that could follow a future arrest as a convicted felon.

Defendant was called to testify at the hearing on the motion to suppress the certified copy of judgment of conviction and sentence. The following colloquy appears in the record:

Mr. Snyder: Do you recall being before Judge Turner with regards to a charge of robbery?
The Defendant: Yes, sir.
‡ * * * * ifc
Mr. Snyder: What, if anything, do you recall specifically that counsel advised you?
The Defendant: He came in and said that I had been offered a deal of five years, and that five years would dispose of the case in question, and it was another case, for the two cases, the five years, and I had just beat a case, so I said I don’t take my chances, because I can’t prove that I didn’t do it, so he advised, that if I feel I couldn’t prove it, he advised I take the jail, and I said, “Okay.”
* * * * * *
Mr. Snyder: Do you recall anything Judge Turner advised you before formally accepting your plea and finding you guilty?
The Defendant: Yes, sir.
Mr. Snyder: What, if anything, do you remember him telling you?
The Defendant: He asked me had anything been promised to me. I told him, “No, sir.” ... He said, am I in agreement with my attorney and with the plea, and I said, “Yes, sir”.
He asked me if my testimony was given freely and voluntarily and I said, “Yes, sir.”
Then he asked the State if the State agreed upon the five years, and the State said, yes, and then I was sentenced to five years in the penitentiary.
Mr. Snyder: Do you recall any further conversations or anything else that Judge Turner advised you, at that particular time?
The Defendant: No, I don’t.
Mr. Snyder: Do you recall Judge Turner going through a list of rights that you had, Constitutional rights that you had prior to entering that plea?
The Defendant: No, I don’t.
Mr. Snyder: Did Judge Turner ever advise you of the possible consequences of your entering a plea of guilty?
Do you specifically recall that?
The Defendant: No, sir.
Hf # # sfc jjt
Mr. Snyder: Did Judge Turner ever advise you that if you accepted a plea and were adjudicated guilty, that if you were arrested again, and in the present posture you are in now, you could be charged as a residuous or habitual offender, or specific charges related to convicted felons?
The Defendant: He just said that if I would be able to maintain myself that I would be able to be out x amount of years.

Polk is here charged with possession of a firearm by a convicted felon. An essential element of the offense, which must be proved, is that he was previously convicted of a felony. The state’s burden as to proof of that element is discharged when a record of the prior conviction is offered in evidence. Thereafter the defendant has the privilege of establishing the invalidity, and therefore the evidentiary incompetence of the record of judgment. State v. Davis, 203 So.2d 160 (Fla.1967). We hold that an inability of the defendant to recall whether the trial court advised him of the constitutional rights abandoned by a plea of guilty, without more, which failure to recollect comes nine years after conviction and many years after sentence has been served, does not overcome the presumption of validity accorded a final judgment of a court of record. Cf. Bellew v. Gunn, 532 F.2d 1288 (9th Cir. 1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3180, 49 L.Ed.2d 1192 (1976).

Although at the time of appellant’s conviction a trial judge was required, before accepting a guilty plea, to advise the accused of the maximum sentence possible, he was not and still is not required to advise the accused of every collateral consequence which follows from a guilty plea. Tindall v. United States, 469 F.2d 92 (5th Cir. 1972) (that federal sentence would run consecutive to and not concurrent with state sentence), and cases compiled therein, Trujillo v. United States, 377 F.2d 266 (5th Cir. 1967), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967) (ineligibility for parole); Ladner v. Henderson, 438 F.2d 638 (5th Cir. 1971) (loss of good time); United States v. Offen, 439 F.2d 1079 (5th Cir. 1971) (loss of rights of citizenship). See also United States v. Parrino, 212 F.2d 919 (2d Cir. 1954) (deportation), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954); Edwards v. State, 393 So.2d 597 (Fla. 3d DCA 1981); Knowles v. State, 356 So.2d 885 (Fla. 3d DCA 1978) (no requirement to advise of mandatory minimum sentence prior to adoption of Fla.R.Crim.P. 3.172(c)(i)). That a convicted felon may not own or possess a firearm is added to the list of collateral consequences which follow from a guilty plea, of which the trial court need not advise the accused. In this case the direct consequence of the guilty plea was a five-year term of imprisonment, precisely the sentence offered by the court and intelligently accepted by the defendant.

Affirmed.

      . A pre-trial motion is an appropriate means of challenging the validity of a prior conviction. See, e. g., Davis v. State, 191 So.2d 440 (Fla. 3d DCA 1966).


text:
    Tommie Lee SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1210.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Bennett H. Brummer, Public Defender, and Lawrence Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Appellant was charged by information with sexual battery and robbery. The jury found him guilty of those offenses. He was sentenced to a 120-year sentence of imprisonment as to the offense of robbery.

The trial judge retained jurisdiction for one-third of the sentence to review any future parole commission release order, pursuant to Section 947.16(3), Florida Statutes (1978). For the first time on appeal, the appellant contends such sentence is illegal.

The appellant recognizes the holding in Alvarez v. State, 358 So.2d 10 (Fla. 1978), but contends that it is inapplicable to the case at bar due to the Legislature’s subsequent passage of Section 947.16(3), Florida Statutes (1978), which enables the trial court to retain jurisdiction over the offender for the first third of the maximum sentence imposed. It is foreseeable that a longer term of imprisonment might result than if the appellant had received a life sentence of imprisonment, but that question is not properly before us. See: Chatman v. State, 393 So.2d 557 (Fla. 4th DCA 1980). The appellant did not challenge the legality of sentence in the trial court. He cannot do so on appeal, because the sentence is facially valid. Clinton v. State, 389 So.2d 1082 (Fla. 3d DCA 1981); Cannon v. State, 384 So.2d 970, 971 (Fla. 3d DCA 1980); Compare Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). The sentence was within the parameters of Alvarez v. State, supra, and Section 947.16, Florida Statutes (1978) does not affect its validity.

Affirmed.

      . Alvarez v. State, supra, upheld the validity of a sentence of 125 years for the crime of robbery.

      . The appellant contends that pursuant to Section 947.16(3), Florida Statutes (1978), he will receive harsher treatment in consideration for parole which the Supreme Court specifically declined to address in Alvarez v. State, supra.


author: DANIEL S. PEARSON, Judge.

text:
    Roberto CARVAJAL, Appellant, v. Beatrice ADAMS, Appellee.
    No. 80-1320.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Halpern & Shenberg and Barry L. Hal-pern, Miami, for appellant.
    Silver, Levy & Hershoff and Jay M. Levy, Miami, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the final judgment rendered upon a jury verdict in favor of Adams upon a holding that (1) the trial court did not err in denying Carvajal’s motion for continuance in order to secure by deposition the testimony of a doctor concerning two matters, one of which was not in dispute, and the other of which was inconsequential, In re Gregory, 313 So.2d 735 (Fla.1975); Buckley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1976); (2) even assuming, arguendo, the doubtful proposition that a police officer, an expert in small arms, but not a ballistics expert, was not qualified to testify that a bullet of a certain size was capable of penetrating the rubber stripping around a van window without touching glass or metal on the van, the admission of such testimony was harmless in light of Carvajal’s several admissions and other evidence that he shot into the van, Hughes v. Canal Insurance Company, 308 So.2d 552 (Fla. 3d DCA 1975); (3) Car-vajal was not entitled to have the jury instructed that he was acquitted of criminal charges arising out of the incident upon which this civil case was based, State v. DuBose, 152 Fla. 304, 11 So.2d 477 (1943); see Eggers v. Phillips Hardware Company, 88 So.2d 507 (Fla.1956); Moseley v. Ewing, 79 So.2d 776 (Fla.1955); Stephens v. Duke, 42 So.2d 361 (Fla.1949); Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174 (1947); Republic National Life Insurance Company v. Valdes, 348 So.2d 566 (Fla. 3d DCA 1977), and the fact that the jury heard testimony about a criminal investigation and arrest of Carva-jal does not change this result, since Carva-jal himself was responsible for adducing this testimony, see Behar v. Southeast Banks Trust Company, N. Y., N. A., 374 So.2d 572 (Fla. 3d DCA 1979); Stanley v. State, 357 So.2d 1031 (Fla. 3d DCA 1978).

Affirmed.


text:
    Helene PEARLMAN, Appellant, v. Arthur PEARLMAN, as Personal Representative of the Estate of Harry Pearlman, Deceased, and Mount Sinai Hospital of Greater Miami, Inc., and Mount Sinai Medical Center Foundation, Inc., Appellees.
    No. 81-67.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Heller & Kaplan and Robert Golden and Lisa H. Green, Miami, for appellant.
    Adams & Ward, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

Helene Pearlman, petitioner below, appeals from the order of the circuit court striking her motion to set aside final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). We hold that Helene Pearlman, though not a named party to the action, has standing to move to set aside the judgment entered in favor of appellees under Rule 1.540(b) because her rights were directly and injuriously affected by the judgment which was allegedly obtained by fraud.

In May of 1979, appellees filed a claim against the Harry Pearlman estate for a one-million-dollar pledge that Harry Pearl-man had made to appellees during his lifetime. Arthur Pearlman, son of Harry Pearlman and personal representative of the Pearlman estate, objected to the appel-lees’ claim. Appellees then filed a complaint against Arthur as personal representative. The trial court entered a judgment upholding the validity of the oral pledge. Less than one year after that judgment, Helene Pearlman, Harry’s widow, filed a motion seeking to set aside the judgment on the grounds that the judgment in question was obtained by collusion between appellees and Arthur. Helene attached to the motion the amended complaint she had filed against Arthur and appellees in a separate case which was still pending in circuit court. In the motion Helene claimed that fraud was committed upon the court. In the attached complaint Helene alleged specific facts to the effect that Arthur Pearlman as president, chief operating officer, and stockholder of Duke Industries, Inc. which sold supplies for profit to Mount Sinai Hospital was placed in a conflict of interest as he was also an officer and trustee of Mount Sinai Hospital and the personal representative of the estate from which Mount Sinai Hospital was claiming a million-dollar pledge. Helene also alleged specific facts to the effect that Arthur conspired with others to permit a non-contested judgment to be entered in favor of Mount Sinai Hospital for the purpose of committing fraud upon Helene and causing approximately three hundred thousand dollars of the claim to be paid from funds which Helene would receive from the estate rather than out of funds which would accrue to the benefit of Arthur as residual beneficiary.

Appellees filed a motion to strike Helene’s Rule 1.540(b) motion on the grounds that she did not qualify under the Rule as a proper party to file the motion since she was neither a party to the proceeding nor a legal representative of the party to the proceeding. After a hearing, the trial court entered an order striking Helene’s motion and denying Helene’s ore tenus motion to reserve jurisdiction of her motion to set aside final judgment pending a ruling in her separate lawsuit.

Florida Rule of Civil Procedure 1.540(b) which is substantially the same as Federal Rule of Civil Procedure 60 provides that the court, under certain circumstances, may relieve a party or his legal representative from a final judgment. The rule does not require that a motion be filed only by a party to the original action. Florida Rule of Civil Procedure 1.540(b) and Federal Rule of Civil Procedure 60 incorporated the substance of common law and equitable ancillary remedies for relief from judgment, including that of a bill in the nature of review, a remedy which could be brought by persons not a party to the original action. See Fla.R.Civ.P. 1.540(b) and 7 Moore’s Fed. Prac. § 60(b), et seq. (2d ed. 1979). Courts interpreting the federal rule (and state rules with identical provisions) have held that a person who is a stranger to the action has standing under the rule to move for vacation of the judgment when that judgment was obtained by fraud or collusion and directly affected the rights of that person. Southerland v. Irons, 628 F.2d 978 (6th Cir. 1980); United States v. International Telephone & Telegraph Corp., 349 F.Supp. 22 (D.Conn.1972), aff’d mem., 410 U.S. 919, 93 S.Ct. 1363, 35 L.Ed.2d 582 (1973); Mathieson v. Hubler, 92 N.M. 381, 588 P.2d 1056 (N.M.App.1978); Liston v. Butler, 4 Ariz.App. 460, 421 P.2d 542 (1966). See also National Power & Paper Company v. Rossman, 122 Minn. 355, 142 N.W. 818 (1913), decided prior to amended Federal Rule 60.

These writings and decisions are to be considered by us in interpreting the Florida rule. Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla.2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978). Like the Federal Rule upon which it is based, the Florida rule incorporated the substance of prior remedies. See Rule 1.540(b); Barns and Mattis, 1962 Amendments to the Florida Rules of Civil Procedure, 17 U. Miami L. Rev. 276 (1963). Under the Florida law, a third person may seek equitable relief from a judgment obtained by fraud if he has a sufficient interest in that judgment. Milgram v. Lee, 200 So.2d 238 (Fla. 3d DCA 1967). There is some confusion under Florida law, however, whether an unnamed party is limited to relief by independent action. In Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA 1980), the court found that failure to fulfill a fiduciary duty to reveal material facts to the court was fraud and affected the substantial rights of non-parties to the suit allowing them to seek equitable relief. The court cited Rule 1.540(b), Ramey, supra at n. 8, but in the same footnote stated that the motion should have been filed as an independent action. Though in particular cases the statute of limitations or other reasons might require that a violation under Rule 1.540(b) be treated as an independent action, we find, based on the discussion above, that an unnamed party is not limited to an independent action. It is true that the original remedy of unnamed parties, a bill in the nature of review, was to be brought as an independent action, while the remedy of named parties, a bill of review, could be brought by motion. 7 Moore’s Fed. Prac., supra, § 60.15[1]. These remedies, however, were abolished and their substance incorporated into the Federal rule and into the Florida rule. See Rule 1.540. We find no purpose served in perpetuating the technical distinction between abolished remedies and no reason to believe that by stating that the procedure for obtaining relief from a judgment shall be by motion or by an independent action, the rule acts to preserve the distinction between these old remedies. The alternative right to an independent action does not affect a person’s ability to file a motion under the rule. The Federal and the Florida rule is to be broadly construed. 7 Moore’s Fed. Prac., supra at § 60.15[8]. The rule incorporates the substance of the prior remedies. In addition, the right under the rule to relief by motion and the separate right to relief by means of an independent action are to be treated interchangeably negating for purposes of standing, any distinction between the two. H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115 (6th Cir. 1976); 7 Moore’s Fed. Prac., supra, § 60.31. See, e. g., Ramey v. Thomas, supra; Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609 (1934). See also Cuthill v. Ortman-Miller Machine Co., 216 F.2d 336 (7th Cir. 1954) (relief by either means). Accordingly, we hold that an unnamed party whose rights were directly and injuriously affected by a judgment fraudulently obtained may seek relief from that judgment either by motion or by independent collateral attack. Neither remedy is exclusive of the other.

We reject the argument of appellee Mount Sinai Hospital that the court’s holding in Sugar v. Blek, 172 So.2d 272 (Fla. 3d DCA 1965) requires our finding that the only action appellant as an unnamed party might have had would be against Arthur for his activities as personal representative. The issue in Blek, supra, was whether there was excusable neglect under what is now Florida Rule of Civil Procedure 1.540(b)(1), not whether there was standing and not whether there was fraud under Rule 1.540(b)(3). The court in Blek, supra, found that the appellant in her motion to vacate the judgment stated only a bare conclusion of a meritorious defense to the default claim and found that the original party was guilty of gross neglect which effect must now be borne by the appellant as successor representative of the estate. The right of a non-party to move under Rule 1.540(b) was not addressed.

In this case appellant has in her motion for relief stated ultimate facts tending to prove fraud. Her right to a lawful share of her husband’s estate was directly affected by the judgment. Although not a named party, appellant, as a known heir and devi-see under the will, is a real party in interest, cf. Central Christian Church of Bradenton v. School Board of Manatee County, 314 So.2d 598 (Fla.2d DCA 1975) (alleged successor to general legatee real party in interest with standing to challenge title to property) and Fla.R.Civ.P. 1.210(a), whose interests are represented by Arthur as personal representative of the estate, see § 733.212. Applying our holding above to the facts of this case, we hold that appellant has standing under Florida Rule of Civil Procedure 1.540(b) to move that the court set aside the judgment and is not limited to the remedy of an independent collateral attack.

Because we find that appellant has standing under Rule 1.540(b) to attack the judgment by motion, we find it unnecessary to address the second issue raised by appellants as to whether a ruling on the motion should have been reserved until an adjudication on the merits in the independent action.

Reversed and remanded for proceedings consistent with this opinion.

      . Florida Rule of Civil Procedure 1.540(b)(3) and Federal Rule of Civil Procedure 60(b)(3) provide:
      On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment . . . for ... fraud.. .. (emphasis added).

      . Compare Rule 60(b) and 1.540(b), supra, with Rule 60(a) and 1.540(a) stating “on the motion of any party. . . . ”

      . We note that the requirement that a movant’s rights be directly and injuriously affected in order to have standing under Rule 1.540(b)(3) may, in fact, involve a lesser standard than is required under similar rules; cf. United States v. International Telephone & Telegraph Co., supra, (amici-curiae had standing under Fed.R. Civ.P. 60, even if it did not meet requirements necessary to intervene).

      . If the actions involve common questions of law or fact, as is suggested by the complaint filed in the independent action, the better practice would be to consolidate pursuant to Rule 1.270(a), Fla.R.Civ.P.


text:
    SEASHORE CLUB OF ATLANTIC CITY, INC., a New Jersey Corporation, and Raymond Geftman, Appellants, v. Manley TESSLER, et al., Appellees.
    No. 81-237.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 2, 1981.

      Terrence Russell and Robert A. Plafsky of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for appellants.
    Jeffrey A. Bernstein of Law Offices of Hersh & Bernstein, Miami, for appellees.
   PER CURIAM.

At issue is whether the judge below properly entered a temporary injunction prohibiting appellants from disbursing the proceeds from the sale of certain condominium units. In his order the judge below “decline(d) to make any findings of fact from the conflicting testimony presented by the parties and assume(d) for purposes of (ap-pellees’) Motion for Temporary Injunction that the allegations of the Complaint (were) true.”

In our view, the trial court committed an abuse of discretion by granting the injunction in question. While it is true that a court considering a request for in-junctive relief must avoid making findings which could dispose of the case on the merits, Sargent v. Geneoco, Inc., 352 F.Supp. 66 (M.D.Fla. 1972), aff’d in part, rev’d in part on other grounds and remanded, 492 F.2d 750 (5th Cir. 1974), nonetheless a party seeking injunctive relief must establish the elements entitling it to relief, Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980); and since the trial court accepted as true the allegations of the complaint and admittedly made no findings, it is clear that it has not yet been established that appellees are entitled to relief. Therefore, the temporary injunction cannot be allowed to stand in its present form.

Accordingly, this cause is reversed and remanded with instructions that the temporary injunction either be dissolved or alternatively that the trial court make written findings as to the existence of the elements specified in Contemporary Interiors, Inc., supra, as would sustain a continuation of the order.

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Betty Jean HARDY, Appellant, v. B. A. GREADINGTON, Chairman, et al., Appellees.
    No. 81-353.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 1981.

      E. Summers Sheffey, Dade City, for appellant.
    No appearance for appellees.
   ORFINGER, Judge.

In a petition for habeas corpus filed in the trial court, appellant contended that she was being illegally detained because the Parole and Probation Commission (Commission) had improperly aggravated her presumptive parole date by using elements which, by definition, constitute the very offense for which she was convicted. The trial court denied the petition on the ground that appellant’s remedy, if any, was not by habeas corpus, but by application for post-conviction relief or by appeal. This appeal followed.

While a petition for writ of habeas corpus was considered and then denied in Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980), where a similar challenge was asserted, it would appear that the more appropriate remedy is mandamus, where as here, it is asserted that the public official is not following the law or established guidelines. While the granting or withholding of parole is discretionary,

[t]he Parole Commission is required, as any other body, to comply with constitutional requirements; it cannot deny parole upon illegal grounds or upon improper considerations. It is answerable in mandamus if it does.

Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla.1974).

Appellant had been convicted as an accessory after the fact to the murder of her husband. In determining to aggravate her presumptive release date, the Commission found that in attempting to cover up the murder of the husband committed by the boyfriend, appellant had attempted to clear up large amounts of blood and skull fragments to prevent detection of the scene of the crime. Appellant says that this finding is part and parcel of the conviction as an accessory after the fact, and that under section 23-19.03 of the Rules of the Commission, an aggravating factor cannot be used it it is included within the definition of the crime.

Section 23-19.03(l)(a)(4) of the Commission’s Rules contemplates, as an aggravating factor that “[t]he offense involved exceptionally brutal or heinous behavior indication [sic] of wanton cruelty.” This factor is not necessarily included within the definition of accessory after the fact, any more than “shots fired” is included within the definition of armed burglary or use of a firearm is included within second degree murder, and we find no abuse of the Commission’s discretion in determining to extend the release date using this factor here.

Since the decision to extend appellant’s release date was within the Commission’s discretion, it is not subject to review in the absence of any violation of a statute or a rule of procedure. The order appealed from is

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . While not stated, we assume this part of the order to mean “appeal” from the determination of the presumptive release date.

      . The murder was apparently committed by sharp blows to the victim’s head, thereby shattering his skull.

      . Section 777.03, Florida Statutes (1979) says: Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact, and shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      . Baker v. Florida Parole & Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

      . Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980).


text:
    Harold Leon SHENKER, Appellant, v. Sonia Carrasquillo SHENKER, Appellee.
    No. 81-38.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.
    Nicholas A. Caputo, P. A., Holly Hill, for appellant.
    Louis Ossinsky, Jr., of Ossinsky, Krol & Hess, Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

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