author: SCHWARTZ, Judge.

text:
    The TWENTY FOUR COLLECTION, INC., Appellant, v. Karen KELLER, Appellee.
    No. 80-181.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 14, 1980.
    Stephen L. Raskin, Miami, for appellant.
    Weintraub & Rosen and Lee I. Wein-traub, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

On June 18,1977, Karen Keller was hired as a buyer for the Twenty Four Collection, Inc., which operates several South Florida retail stores selling expensive women’s clothing. At that time the parties executed an employment and non-competition agreement which provided that:

In the event of the termination, voluntarily or involuntarily, of the undersigned’s employment with the EMPLOYER, for any reason, then for a period of two (2) years from the date of said termination, the undersigned employee will not engage, in any capacity, directly or indirectly, in or be employed by any business in Dade, Broward or Palm Beach Counties, Florida, similar to the kind or nature of business conducted by the EMPLOYER during the employment, [e. s.]

In December, 1978, Ms. Keller was discharged by 24 Collection. The next month, she went to work in the same capacity for A. Jones, Inc., d/b/a “Cache,” which is not only engaged in the same business but is 24’s primary competitor in the area. 24 then brought this action against Keller for an injunction precluding her employment with Cache and enforcing the terms of the non-compete contract. After a trial which disclosed the facts which have been outlined, the trial court entered a judgment against the plaintiff which held that the defendant “is not precluded in any way from working for CACHE;” the judgment, however, continued until February, 1981 the terms of an earlier temporary order restraining Ms. Keller from dealing with several named suppliers of 24, with whom she had developed personal relationships while she was employed there, or with any of its former customers. These rulings were based on a sort of “balancing the equities” process in which the chancellor sought to avoid the allegedly harsh result of enforcing the contract against Ms. Keller by depriving her of her desired employment, while protecting what her counsel describes as 24’s “legitimate competitive concerns.” 24 Collection appeals from the refusal to enforce the agreement as written so as to preclude Keller’s employment with a competitor. We agree with its position and reverse.

The non-competitive agreement in question is specifically validated by Section 542.12(2), Florida Statutes (1977) which states, in language which is virtually tracked by the provision before us, that

one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, ... so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction. [e. s.]

There is no doubt either of the applicability of the statute nor the enforceability of agreements which come within its terms. Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974); Capelouto v. Orkin Exterminating Co. of Fla., 183 So.2d 532 (Fla.1966), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78,17 L.Ed.2d 10 (1966). Furthermore, it is established law that a court is not empowered to refuse to give effect to such a contract on the basis of a finding, as was the case below, that enforcement of its terms would produce an “unjust result” in the form of an overly burdensome effect upon the employee. We specifically so held in Barco Chemicals Division, Inc. v. Colten, 296 So.2d 649 (Fla. 3d DCA 1974). Accord, Empiregas, Inc., of Pensacola v. Thomas, 359 So.2d 15 (Fla. 1st DCA 1978), dismissed, 364 So.2d 893 (Fla.1978); Royal Services, Inc. v. Williams, 334 So.2d 154 (Fla. 3d DCA 1976); Foster and Company, Inc. v. Snodgrass, 333 So.2d 521 (Fla. 2d DCA 1976); Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla. 3d DCA 1965), cert. denied, 188 So.2d 315 (Fla.1966); Atlas Travel Service, Inc. v. Morelly, 98 So.2d 816 (Fla. 1st DCA 1957). The only authority the court possesses over the terms of a non-competitive agreement is to determine, as the statute provides, the reasonableness of its time and area limitations. E. g., American Building Maintenance Co. of Oakland v. Fogelman, 167 So.2d 791 (Fla. 3d DCA 1964). As the supreme court made clear in the Capelouto case, supra, 183 So.2d at 534:

Absent any overriding public interest in having the restricted employee’s services available to it, and we find none present here, the guidelines to be followed in enforcing any such contract are reasonableness as to time and as to area. [e. s.]

Moreover, Ms. Keller’s acknowledged employment by a competitor should be enjoined even if she is not or is precluded from soliciting former customers or dealing with former suppliers of the appellant. In Answer All Telephone Secretarial Service, Inc. v. Call 24 Inc., 381 So.2d 281, 282-83 (Fla. 5th DCA 1980), the fifth district correctly stated, through Judge Sharp:

The injuries which may be suffered by an employer when a former employee departs and commences work for a business rival stem not only from solicitation of old customers, but use in a rival business of procedures, methods, trade practices, trade secrets and the like. The two may coincide; or one may occur without the other, as in this case. Solicitation is not essential to bring the non-compete contract within the statute, and assuming the contract is reasonable as to time and area (issues not raised in this appeal, and not addressed by this Court) the contracts are enforceable. See Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Royal Services, Inc. v. Williams, 334 So.2d 154 (Fla. 3d DCA 1976); Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla. 3d DCA 1965).

We therefore find no basis in the law for the ruling below which, while obviously well-motivated, amounted simply to rewriting a duly-executed and valid contract so as to relieve one of the parties of its burdens. Such a result may no more be permitted in the case of an agreement of this kind than any other. Home Development Company of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965); Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064 (Fla.3d DCA 1980). Since Ms. Keller agreed not to work for a competitor after she left 24 Collection, she must be held to that undertaking.

For these reasons, the judgment below is reversed and the cause remanded with directions to enjoin the appellee from a violation of the non-competition agreement. Since it does not appar that the reasonableness of the two year-three county limitation provision has yet been determined below, the issue should be considered after remand. See, e. g., Foster and Company, Inc. v. Snodgrass, supra. In the light of the history of this case, we also deem it appropriate to leave the determination of the injunction’s commencement date initially to the discretion of the trial court. See, Uni-Chem Corp. of Florida, Inc. v. Maret, 338 So.2d 885, 887 (Fla. 3d DCA 1976).

Reversed and remanded, with directions.

      . The issue should be decided in the light of such cases as Capelouto, supra, and Maimone v. Wackenhut Corp., 329 So.2d 332 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1102 (Fla. 1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William A. RIDDLE, Appellant, v. STATE of Florida, Appellee.
    No. 79-90.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the Circuit Court of Orange County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 23, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. This court has reviewed the Anders brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the judgment and sentence are hereby affirmed, without prejudice to seek appropriate post-conviction relief before the trial court. Robinson v. State, 373 So.2d 898 (Fla.1979).

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    William A. RIDDLE, Appellant, v. STATE of Florida, Appellee.
    No. 79-96.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Orange County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 24, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COBB, Judge. FRANK D. UPCHURCH,

text:
    Roger CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-415.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Rehearing Denied Nov. 25, 1980.

      James W. Durden, Leesburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant was charged by an information with kidnapping and sexual battery. He was found guilty of the lesser included offense of false imprisonment and a lesser included offense of sexual battery. Appellant moved for a new trial, and the trial court granted it. Appellant was then charged by a second information with the original offenses of kidnapping and sexual battery. He was tried and convicted as charged. Appellant complained of double jeopardy for the first time by way of a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion.

On appeal of that denial, appellant contends that a defendant who has been tried for a greater offense and convicted of a lesser included offense, and then granted a new trial, cannot subsequently be retried on the greater offense. However, the record before this court fails to show that the appellant timely moved against the information and he therefore waived his double jeopardy defense. Bell v. State, 262 So.2d 244 (Fla.4th DCA 1972); Robinson v. Wainwright, 240 So.2d 65 (Fla.2d DCA 1970); Robinson v. State, 239 So.2d 282 (Fla.2d DCA 1970); Annot., 8 A.L.R.2d 285 (1949). Rule 3.190(b), Florida Rules of Criminal Procedure, provides that all defenses available by plea, other than a plea of not guilty, shall be made only by motion to dismiss the indictment or information. Expressly included in such defenses is former jeopardy.

Accordingly, the order denying the motion to vacate is

AFFIRMED.

ORFINGER, J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

FRANK D. UPCHURCH,

Jr., Judge, concurring specially.

While I concur with the majority opinion in as much as it accurately follows well established precedent, the rule is harsh and does no service to the doctrine of waiver.

Rule 3.640(a), Florida Rules of Criminal Procedure, states:

New Trial for Greater Offense Prohibited.
When a new trial is granted, the new trial shall proceed in all respects as if no former trial had been had except that when an offense is divided into degrees or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included offense, he cannot thereafter be prosecuted for a higher degree of the same offense or for a higher offense than that of which he was convicted. (Emphasis supplied.)

Yet, this defendant was convicted of a greater offense at his second trial and all agree that he should- not have been.

To constitute a valid waiver, there must be an intentional relinquishment of a known right. United States v. Brown, 569 F.2d 236 (5th Cir. 1978). While that knowledge may be constructive, see Wilds v. Permenter, 228 So.2d 408 (Fla.4th DCA 1969), to impute it in this situation strains justice. The defense was first raised on February 11, 1980, by motion to vacate judgment and sentence following the trial of January 22.

The trial judge did not understand the rule. The basis of his ruling was his incorrect belief that if defendant moves for a new trial which is granted, the matter is treated as though no trial had ever been held. (See Footnote One.) The defendant’s trial attorney did not understand the rule or he would certainly have raised the right at an appropriate time. We can also assume that the State Attorney was unaware of defendant’s right unless we are willing to impute to him a deliberate abridgement of defendant’s constitutional rights, which I am not. Therefore, to suggest that defendant, whose mental abilities are conceivably somewhat lower than the judge and the attorneys, constructively knew of his right and intentionally relinquished it, is totally unrealistic. To impose upon him the penalty for a crime for which by law “he cannot thereafter be prosecuted” under Rule 3.640(a) is indefensible, regardless of how abhorrent his acts may be to us.

Appellant should be afforded a remedy, and were it not for the clear precedent of the cases cited by Judge Cobb, I would dissent.

      . Case law supports appellant on the merits. Green v. United States, 355 U.S. 184, 78 S.Ct. 221,2 L.Ed.2d 199 (1957); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Ray v. State, 231 So.2d 813 (Fla.1970); Johnson v. State, 27 Fla. 245, 9 So. 208 (1891). See also Rule 3.640(a), Fla.R.Crim.P.


author: BERANEK, Judge.

text:
    Paul Edward ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-177.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1980.
    Rehearing Denied Nov. 26, 1980.

      P. D. Aiken of Aiken & Damore, Fort Lauderdale, and Lawrence J. Fleming and Norman London of London, Greenberg & Fleming, St. Louis, Mo., for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction and sentence after an adverse jury verdict on the charges of (1) possession of cocaine, (2) possession of cannabis in excess of five grams, (3) possession of hashish, and (4) possession of narcotic paraphernalia. Defendant was found guilty on each charge and sentenced to five years for each offense to be served consecutively.

This is a complicated case involving wiretaps, search warrants, proof of constructive possession, the overall sufficiency of the evidence and other issues. The facts in brief are as follows:

Pursuant to a search warrant, police searched the home of a person suspected of being involved in major drug dealings. The search resulted in the seizure of relatively small amounts of drugs which formed the basis for the charges herein. Prosecutions against three separate defendants grew out of the search. Appellant was found guilty on all charges and given the maximum sentence on each.

Appellant’s brief states five points on appeal which actually contained numerous sub-issues. These points, as stated by appellant, are as follows:

POINT I
THE TRIAL COURT, IN ADMITTING EVIDENCE, RULING ON MOTIONS AND DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL, MISUNDERSTOOD AND MISAPPLIED THE LAW REGARDING CONSTRUCTIVE POSSESSION UNDER CIRCUMSTANCES WHEREIN A PREMISES IS JOINTLY OCCUPIED BY MORE THAN ONE PERSON. ADDITIONALLY, WITH RESPECT TO ADMISSION OF MARIJUANA SEEDS AND THE ALLEGED “COKE SPOON” THE COURT MISAPPLIED THE STATUTORY LAW REGARDING FELONY POSSESSION.
POINT II
THE COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS AND SUPPLEMENTAL MOTION TO SUPPRESS THE FRUITS OF THE SEARCH WARRANT AND BY ADMITTING THE ITEMS SEIZED SINCE THE APPLICATION FOR THE WARRANT DID NOT STATE FACTS SUFFICIENT TO CONSTITUTE PROBABLE CAUSE AND CONTAINED MATERIALLY FALSE ALLEGATIONS AND SINCE THE WARRANT DID NOT ADEQUATELY DESCRIBE THE ITEMS TO BE SEIZED.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SUPPRESS THE FRUITS OF ELECTRONIC SURVEILLANCE, SINCE THE AUTHORIZATIONS THEREFOR WERE NOT BASED UPON LEGALLY SUFFICIENT AFFIDAVITS OF PROBABLE CAUSE AND THE INFORMATION CONTAINED THEREIN WAS “STALE” AS DEFINED BY THE FLORIDA SUPREME COURT.
POINT IV
THE TRIAL COURT ERRED IN DENYING DEFENDANT ACCESS TO RECORDS AND TAPES OF THE WIRETAP ON THE DADE COUNTY PHONE OF MARLENE HUDSON AND IN DETERMINING THAT DEFENDANT WAS NOT AN AGGRIEVED PARTY WITH RESPECT TO SAID TAPS, INASMUCH AS THE HUDSON TAP ALLEGEDLY RECORDED CONVERSATIONS FROM THE 28TH COURT ADDRESS AND PROVIDED THE BASIS FOR THE BROWARD COUNTY WIRETAPS AND ULTIMATELY LED TO THE SEARCH OF THAT PREMISES AND THE ARREST OF THE DEFENDANT THEREIN.
POINT V
FUNDAMENTAL ERROR WAS COMMITTED WHEN THE COURT PERMITTED THE PROSECUTOR TO DISPLAY EVIDENCE TO THE JURY WHICH THE PROSECUTOR ADMITTEDLY NEVER INTENDED TO INTRODUCE INTO EVIDENCE AND TO ARGUE POINTS NOT SUPPORTED BY THE EVIDENCE.

As indicated, appellant’s attack is multifaceted and seeks reversal based upon alleged errors in almost all pretrial and trial proceedings. We reverse in part and affirm in part.

Defendant was convicted of possessing “coke spoons” with the intent to use said paraphernalia for unlawfully administering cocaine contrary to Section 893.-13(3)(a)(4) and Section 893.13(3)(b), Florida Statutes (1979). We conclude error occurred in regard to his conviction and sentence for this offense. The evidence was insufficient to show intent to use any particular paraphernalia for the administration of drugs. We thus reverse the conviction on this count.

We affirm defendant’s convictions in all other respects. The wiretaps and warrant procedures prior to the search were proper and not tainted as asserted by defendant. The trial was fair and we reject the defendant’s many arguments as to the insufficiency of the overall evidence. We reach the same conclusion regarding constructive possession. Defendant occupied a house with others and the evidence was that various small amounts of drugs were found in most rooms in the house including defendant’s bedroom and in his clothes.

Some of these items were in plain view and others were in common areas. After a complete review of all the evidence, we conclude that constructive possession was demonstrated. Yager v. State, 370 So.2d 1230 (Fla. 4th DCA 1979), cert. denied 381 So.2d 771 (Fla.1980), Manning v. State, 355 So.2d 166 (Fla. 4th DCA 1978), and Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), cert. denied 370 So.2d 462 (Fla.1979). We also reject defendant’s arguments in that certain items not in evidence were shown to the jury. The record is vague on this issue and we conclude any error which may have occurred was not sufficient to warrant reversal.

AFFIRMED IN PART AND REVERSED IN PART.

MOORE and HURLEY, JJ., concur.


text:
    Alvin STRACHEN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1692.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Alvin Strachen, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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

Affirmed.


text:
    Guy K. STEWART, Appellant, v. Janice B. STEWART, Appellee.
    No. 80-1011.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Robert W. Stern and Peter Kneski, Miami, for appellant.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Rouse v. Rouse, 192 So.2d 77 (Fla. 3d DCA 1966); Ginsberg v. Ginsberg, 113 So.2d 565 (Fla. 3d DCA 1959).


text:
    LORDI REALTY OF FLORIDA, INC., Appellant, v. Luis GENA and Leroy Wiener, Appellees.
    No. 79-2382.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Rehearing Denied Nov. 19, 1980.
    Ress, Gomez, Rosenberg & Howland and Sheldon Rosenberg, North Miami, for appellant.
    Allan A. Cease, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State Road Department v. Lewis, 156 So.2d 862, 865, 867 (Fla. 1st DCA 1963), aff’d in part, rev’d in part, 170 So.2d 817 (Fla.1964); National Mutual Insurance Co. v. Dotschay, 134 So.2d 248, 251 (Fla. 3d DCA 1961).


author: BASKIN, Judge.

text:
    Riguard COLON, Appellant, v. Serafín LARA and Carmen Lara, etc., et al., Appellees.
    No. 79-1378.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.

      Horton, Perse & Ginsberg and Arnold Ginsberg, Hawkesworth & Schmick, Miami, for appellant.
    Jeanne Heyward, Thornton & Herndon, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Tenant, Riguard Colon, appeals a final summary judgment in favor of appellees (landlords) in this action to recover for injuries sustained when he slipped in the bath tub and his arm hit the shower enclosure door so that the glass shattered. Appellant has lost partial use of his left hand. Mr. Colon was a tenant in the residence leased from the Laras, appellees. We affirm.

Appellant contends that issues of fact remained to be decided concerning the landlords’ obligation to comply with the Florida Residential Landlord and Tenant Act. § 83.40, Fla.Stat. (1975). He contends that the landlords violated their duty to warn of latent defects in the construction of the shower door.

Summary judgment is properly rendered “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . ” Fla.R.Civ.P. 1.510(c). In considering the pleadings, answers to interrogatories, and depositions contained in this file, the court was required to determine whether the issues raised were genuine or were merely speculative.

The facts disclosed that the residence was constructed in 1960 and purchased by the Laras in 1973. They leased an apartment to the tenant with whom appellant lived at the time of the incident. No complaints about the shower doors had ever been received. After the incident, the broken door was stored and then disposed of or destroyed. No evidence of the nature of its composition was presented to the trial court.

A party cannot forestall the granting of relief on motion for summary judgment by raising purely paper issues. Reflex, N.V. v. Umet Trust, 336 So.2d 473 (Fla.3d DCA 1976).

On a motion for summary judgment after the movant initially demonstrates the non-existence of factual issues, the non-moving party must make a showing, aside from his pleadings, that a fact issue can be generated, unless the undisputed facts would not entitle the movant to judgment as a matter of law.

Soper v. Stine, 184 So.2d 892, 894 (Fla.2d DCA 1966). A summary final judgment is proper when a movant sustains the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); e. g. Ultra Marine Corp. v. Bryant, 375 So.2d 613 (Fla.3d DCA 1979).

Since no genuine issue of material fact was presented, and the trial court could only speculate as to the composition of the shower door, appellees were entitled as a matter of law to summary judgment in their favor. Wentz v. Independent Life & Accident Insurance Co., 254 So.2d 368 (Fla.3d DCA 1971).

It is well-established law that where the landlord has surrendered the entire possession and control of the premises to the tenant and where no fraud or concealment by the landlord is shown, the landlord is not liable for injuries to either tenant or third person. Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946); Wingard v. McDonald, 348 So.2d 573 (Fla.lst DCA 1977). Appellants presented the court with no evidence that would present any genuine issue of material fact that any fraud or concealment occurred.

Affirmed.

      . The tenant actually rented a one -family house, designated an apartment because of its proximity to another house on the same lot belonging to the Laras, which was divided into apartments.


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

text:
    DESERET RANCHES OF FLORIDA, INC., Appellant, v. Dorothy BOWMAN et al., Appellees.
    No. 79-18.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 1980.

      Patricia C. Fawsett, Orlando, for appellant.
    Bruce E. Chapin, Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment finding that appellees had established a prescriptive easement over the property of appellant.

The easement which appellees claimed and which the trial court granted was thirty feet in width and nine miles in length, encompassing Old Taylor Creek Road and Shiver Grade. Appellees’ forty acres were located deep within the 365,000 acres comprising the Deseret Ranch.

Appellant questions whether appellees proved their use was sufficiently open, continuous and adverse over the necessary period to establish the prescriptive easement claimed.

We do not think the requirements were met and reverse.

The Old Taylor Creek Road was the only road connecting Fort Christmas and Deer Park until Nova Road was completed and opened to the public on December 18, 1965. The prescriptive period, as found by the court, commenced more than twenty years prior to January, 1965. A continued and uninterrupted use alone for the prescribed period will not establish a prescriptive right without adversity. The burden is on the claimant to prove that the use is adverse. Downing v. Bird, 100 So.2d 57 (Fla.1958). If the use is not exclusive and is not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such use is permissive, rather than adverse. J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45 (1936).

While there was some testimony from one witness, Mrs. McDowell, that she had first used this road as early as 1936 or 1937 to visit Charlie Bumby, an owner of the forty-acre property, there is no evidence that the use of the road was adverse. This witness testified that her husband bought the land in 1944 for a hunting camp and used the route to reach it on an average of once or twice a month during hunting season. The first evidence of any adverse use of the road was Mrs. McDowell’s testimony that they cut the lock on a gate a couple of times, but the dates of these incidents were never clearly established. The first time she recalls any fences was “after the war.” Another witness, a game warden; testified there were no fences or gates before 1949. There was no other evidence of any adverse use prior to 1949. Even if the isolated incidents of cutting the chain were sufficient evidence of adversity to commence the prescriptive period, the period had not run by January' 1, 1965.

The record clearly shows that the management of Deseret Ranches was aware that appellees were using the road to reach their land but there is no evidence that it knew appellees were using the road under claim of right. While actual knowledge of such claim is not required, the use must be so open, notorious, and visible that knowledge can be imputed. Downing v. Bird. Here, the road was being used by strangers, game wardens, hunters and ranch employees, any one of which could have cut the lock. There is no evidence that appellees used the road in a manner inconsistent with the use and enjoyment of the road by appellant, or if so, that appellant was aware of such inconsistent use.

In City of Daytona Beach v. Tona Rama, Inc., 294 So.2d 73, 77 (Fla.1974), the Florida Supreme Court pointed out:

[F]or prescription to be properly effective [there must be] adverse possession inconsistent with the owner’s use and enjoyment of the land.

The facts, interpreted most favorably to appellees, do not reflect the open, adverse, continuous (over twenty years) use necessary to establish a prescriptive right. Guerard v. Roper, 385 So.2d 718 (Fla. 5th DCA 1980).

REVERSED.

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

      . Count II of the initial complaint was to establish a statutory way of necessity pursuant to section 704.01(2), Florida Statutes. Appellees, in filing a third amended complaint deleted this count.


text:
    Everett L. REDGATE, Petitioner, v. NATIONAL SOCIETY FOR the PREVENTION OF BLINDNESS, INC., Eye Bank for the Restoration of Sight, Inc., the Trustees of Columbia University in the City of New York, Inc., and Reader’s Digest Fund for the Blind, Inc., Respondents.
    No. 80-1444.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.
    Margaret L. Cooper, of Jones & Foster, P. A., West Palm Beach, for petitioner, Red-gate.
    G. William Bissett of Preddy, Kutner & Hardy, P. A., Miami, for petitioner, Parson.
    James G. Pressly, Jr., of Gunster, Yoak-ley, Criser & Stewart, Palm Beach, for respondents.
   PER CURIAM.

This matter has been considered on petition for writ of common law certiorari wherein defendant seeks to review an order denying discovery attempts by defendant. In question are certain interrogatories and requests for production regarding the securities transactions with which plaintiffs were involved over a period of several years. The trial court denied defendant’s attempt at discovery in these areas. This case was previously before this Court in National Society for the Prevention of Blindness, Inc. v. Parson, 374 So.2d 531 (Fla.4th DCA 1979).

We conclude that there has been no demonstration of a departure from the essential requirements of law. Further, if error was committed in the limitation upon discovery which results in eventual prejudice in the trial of this cause, then the matter may be remedied by appeal after judgment. We conclude that there has been no demonstration sufficient to warrant this Court’s taking jurisdiction by certiorari and, thus, deny the petition.

CERTIORARI DENIED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    DECKS, INC. OF FLORIDA and Aetna Casualty and Surety Company, Appellants, v. Norman WRIGHT, Appellee.
    No. RR-278.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.

      James F. Pingel, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellants.
    Scott Charlton of Peavyhouse, Giglio, Grant, Clark, Charlton & Mount, Tampa, for appellee.
   PER CURIAM.

The employer appeals urging that the Judge of Industrial Claims erred in finding that claimant is temporarily and totally disabled, in finding that he incurred reasonable and necessary medical benefits, in awarding medical bills when none were introduced into evidence and in awarding future medical benefits. We agree in part.

Wright sustained a whiplash injury to his neck while driving his employer’s vehicle at the employer’s request. He suffered severe pain and was treated by a chiropractor. Although the treatment did not help, Wright attempted to return to work but was able to work for only one week. When he told his supervisor he was still having problems the supervisor “convinced [him] it wasn’t bad enough to worry about.”

The problems continued and Wright went to a medical doctor who diagnosed high blood pressure and hospitalized him. During this hospitalization, he also received therapy for muscle spasms.

At his deposition, which was the only evidence presented at the hearing, Wright testified he continued to have severe pain and headaches and that he had not been treated for high blood pressure prior to the accident.

The order finds that Wright was TTD from 9-19-78 to 12-17 — 78 except for one week, and requires the E/C to pay the medical and hospital bills incurred for treatment of the injury and for future remedial treatment. Implicit in the order is the finding of a causal relationship between the injury and Wright’s high blood pressure. This finding is not supported by the record.

Disability within the meaning of the Worker’s Compensation Act means incapacity due to a compensable accident and the claimant must establish a causal relationship between the accident and his disability based on a reasonable medical probability. That reasonable medical probability may be established by medical or lay testimony. Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla.1970); Aerospace Fabrication, Inc. v. Dodge, 8 FCR 339 (1974). However, lay testimony alone is not sufficient in all instances.

“Lay testimony is of probative value in establishing such simple matters as the existence and location of pain, sequence of events and actual ability or inability of the claimant to perform work.”

Id. at 340 — 41.

We construe this language to mean that lay testimony can establish the necessary relationship as to conditions and symptoms which are within the actual knowledge and sensory experience of the claimant. However, lay testimony is not sufficient to establish the causal relationship between the accident and conditions such as high blood pressure, which are not readily observable or discoverable without medical examination. The record is devoid of any medical evidence linking Wright’s high blood pressure to the accident. His bare statement that he had not been treated for high blood pressure prior to the accident is not competent substantial evidence to prove the causal relationship.

The order also fails to specify what part of the period of disability is attributable to Wright’s neck injury and what part, if any, is attributable solely to the high blood pressure. In fact, such a determination could not have been made on the evidence presented. On remand the deputy commissioner should take whatever additional evidence is necessary to make this determination.

Appellant correctly argues that medical benefits are not properly awarded when the medical bills are not introduced into evidence. Doty Exterminating Company v. Jones, 9 FCR 31 (1974); E. C. Ernst & Company, Inc. v. Grimmett, 9 FCR 341, (1975) cert. denied 336 So.2d 600 (Fla.1976).

The record reflects that claimant notified the employer, through his supervisor, of his continued problems with his neck and that the employer, in effect, refused treatment. Medical bills related to the compen-sable accident and the injury and disability arising therefrom should be paid by the employer subject to proper proof. Medical bills for future treatment of the injuries related to the compensable accident would likewise to be charged to the employer. Since the high blood pressure was not shown to be causally related to the accident, medical bills independently required for its treatment are not the responsibility of the employer. If, however, one of the primary purposes of the treatment is also removal of a hindrance to recover from the compensa-ble accident, the employer will be responsible. Glades County Sugar Growers v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980).

Accordingly, the order is reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    Harry E. JORDAN, d/b/a Inland Service Station and American States Insurance Company, Appellants, v. Edward Eugene SMITH, Appellee.
    No. SS-65.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.
    R. Jeremy Solomon of McConnaughhay & Roland, P. A., Tallahassee, for appellants.
    Jon D. Caminez, Tallahassee, for appellee.
   PER CURIAM.

Jordan, the employer in a Workers’ Compensation action, appeals a deputy commissioner’s order which awarded Smith a fifty percent (50%) permanent partial disability based on loss of wage earning capacity and also awarded a $2,000.00 lump sum for disfigurement. Jordan urges two points on appeal: Whether the deputy erred in awarding a lump sum for disfigurement in addition to an award of permanent partial disability; and whether the record contained competent, substantial evidence to sustain the finding of fifty percent (50%) disability. Smith cross appeals, arguing the deputy erred in failing to find permanent total disability. We reverse on appellant’s first point.

In calculating permanent partial disability benefits, a deputy should award whichever of these two factors is greater: 1) loss of wage earning capacity, or 2) the total of scheduled injuries, plus injury to the body as whole not resulting from the scheduled injuries. Section 440.15, Florida Statutes. See Eques v. Best Knit Textile Corporation et al., 382 So.2d 736 (Fla. 1st DCA 1980). Serious disfigurement is an injury scheduled under Section 440.15(3)(t), Florida Statutes. Therefore, the deputy erroneously added an award for a scheduled injury to an award based upon loss of wage earning capacity.

We affirm on Jordan’s second point on appeal, and on Smith’s cross appeal.

Accordingly, the order below is reversed and remanded to the deputy commissioner for proceedings not inconsistent with this opinion.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    Kenneth Wayne KOLB, Appellant, v. STATE of Florida, Appellee.
    No. SS-80.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.

      Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Albritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appeal dismissed without prejudice .to appellant to file a motion for post-conviction relief under Fla.R.Crim.P. 3.850. See Wilson v. State, 378 So.2d 1258, 1260 (Fla. 1st DCA 1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    James HOLLOWAY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1180.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. In re I.D.K., 360 So.2d 488 (Fla. 4th DCA 1978); Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969).

Affirmed.


text:
    P. R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1273.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony Mus-to, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The order of the trial court withheld adjudication of delinquency and placed appellant under the supervision of a community control program for theft of property from The Treasury department store. We hold the evidence failed to negate any reasonable hypothesis of innocence and reverse.

Testimony at the adjudicatory hearing disclosed that P. R., a juvenile, was observed by the store’s security officer when she and three other young women selected a quantity of merchandise without regard to size or price, placed the items in a shopping cart, and took them to a cash register to check out. The cashier then checked through more merchandise than she rang up. The register tape reflected that payment of $40.00 had been tendered, and change of $14.10 had been returned. The tape total was $25.86 for merchandise valued in excess of $200.00.

The evidence did not disclose that appellant was aware that not all the items were rung up on the register or that payment covered only a portion of the merchandise. No evidence connected appellant with any scheme or plan, or controverted her testimony that although she accompanied and assisted one of the young women, she did not notice the cashier’s actions or the amount paid.

Appellant’s criminal intent was sought to be proved by circumstantial evidence. “Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist.. .. ” Davis v. State, 90 So.2d 629, 631 (Fla.1956). Circumstantial evidence must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Thomas v. State, 374 So.2d 508 (Fla.1979); Davis v. State, supra; Redding v. State, 357 So.2d 483 (Fla. 3d DCA 1978). That standard was not met. We therefore reverse the trial court’s decision and discharge defendant.


text:
    MORRISON ASSURANCE COMPANY, INC., Appellant, v. CITY OF OPA-LOCKA, Florida, Appellee.
    Nos. 79-1949, 79-2374.
    District Court, of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Miami, for appellant.

      Weintraub, Weintraub, Seiden, Dudley & Press and Jan K. Seiden, Miami, for appel-lee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The City of Opa-Locka operates a recreational area known as Sherbondy Park, and has purchased from Morrison Assurance Company a comprehensive liability policy to cover injuries sustained by the public while on the premises. One Virginia Pitts sustained injuries at the park when she fell over a wheelbarrow left near a softball diamond. At the time of the incident, she was practicing with her team for an upcoming softball game.

Morrison sought a declaratory judgment of non-coverage below, and appeals from an adverse ruling. We reverse.

A policy exclusion provided that coverage would not extend “to bodily injury to any and all persons practicing, instructing, or participating in any physical training, sport, athletic activity or contest.” The trial court ruled that the exclusion unambiguously did not pertain to “unauthorized, non-sponsored, unsupervised physical play or acts”: Since Virginia’s activity was unsupervised, etc., it was covered.

We find no policy reference to or any implicit suggestion of a policy distinction between supervised and unsupervised, sponsored and unsponsored, authorized and unauthorized play. Virginia was a member of a softball team. That team congregated at the park to practice for a game to take place later in the day. She was injured during the course of that practice. She was “practicing... [a] sport. ... ”

It is urged that the city’s intention was to purchase coverage for all incidents and occurrences except those involving authorized or sponsored participants, e. g. league teams, which provide their own insurance as a precondition to using the field. That may well be a valid statement of the city’s intent, but absent ambiguity in the contract terms, a contract of insurance must be given effect as written. Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla.1973); Connecticut General Life Insurance Co. v. Moore, 357 So.2d 475 (Fla. 3d DCA 1978).

Reversed.


text:
    Kimberly S. SMITH, etc., Appellant, v. Isabel SOMERA, Marietta Somera and Sussex Mutual Insurance Co., Appellees.
    No. 80-242.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Daniels & Hicks and Sam Daniels, Miami, Savitt, Kotzen & France, North Miami Beach, for appellant.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellees.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The lower court granted final summary judgment adverse to plaintiff below on the ground that the interfamilial immunity doctrine prohibited suit against plaintiff’s sister.

Appellee has not pointed to a single Florida (or any other) decision applying the doctrine in suits between adult siblings; arguments for application sub judice are negatived by reference to the Restatement (Second) of Torts § 895H, Comment c (1977), and to those cases collected at 81 A.L.R.2d 1155.

Reversed.


text:
    Milbrey Wright MACKLE, as Personal Representative of the Estate of Elliott Mackle, Appellant, v. Robert MACKLE, Frank Mackle, Morris Salomon, The Mackle Company, a Florida Corporation, and Farrand Corporation, a Florida Corporation, Appellees.
    No. 80-415.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    William Snow Frates, Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee, Miami, for appellant.
    Podhurst, Orseck & Parks and Walter H. Beckham, Jr. and Joel D. Eaton, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

On the basis of Section 733.104(1), Florida Statutes (1979), the trial judge dismissed this action for fraud allegedly committed during his lifetime upon Elliott Mackle, the decedent of the plaintiff-personal representative, because the complaint was filed more than one year after his death. This was error.

Section 733.104(1) provides:

Suspension of statutes of limitation in favor of the personal representative-
(1) If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, the action may be commenced by his personal representative after the expiration and within 12 months from the date of the decedent’s death.

As is obvious from its title and language, the sole effect of this provision is to benefit the estate by suspending and elongating the period in which a personal representative may commence an action as to which the pertinent limitations period would have expired during the year after death. It plainly has no effect upon the commencement of actions which are not otherwise time-barred and does not, contrary to the ruling below, impose a new one-year blanket statute of limitations upon all causes of action which survive. Sammis v. Wightman, 31 Fla. 10, 12 So. 526 (1893); Genslinger v. New Illinois Athletic Chib, 322 Ill. 316, 163 N.E. 707 (1928); McNear v. Roberson, 12 Ind.App. 87, 39 N.E. 896 (1895); Converse v. Johnson, 146 Mass. 20, 14 N.E. 925 (1888); Atwood v. Bursch, 107 N.H. 189, 219 A.2d 285 (1966). In this case, the complaint-perhaps unnecessarily affirmatively alleged facts which demonstrate that the action was timely filed within the statute of limitations as to fraud, Sections 95.031, 95.11(3)(j), Florida Statutes (1979). The judgment under review is therefore

Reversed.

      . The fraud action survived the death of Elliott Mackle. § 46.021, Fla.Stat. (1979).

      . The earlier version of this statute, Section 734.27, Florida Statutes (1973), ran the twelve month period from the granting of letters. See, Matthews v. Matthews, 177 So.2d 497 (Fla.2d DCA 1965), cert. discharged, 189 So.2d 629 (Fla. 1966). The amendment clearly did not change the effect of the statute itself as discussed in Sammis v. Wightman, 31 Fla. 10, 12 So. 526 (1893).

      . The references to Sec. 733.104(1) as a “probate statute of limitations,” which appear in dicta in Haney v. Holmes, 364 So.2d 81, 82 (Fla.2d DCA 1978), appeal dismissed, 367 So.2d 1124 (Fla.1979), represent no more than an imprecise choice of language.

      .See, Wimpey v. Sanchez, 386 So.2d 1241 (FLa.3d DCA 1980); Sanchez v. Mercy Hospital, 386 So.2d 42 (Fla.3d DCA 1980); Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976).


text:
    George L. CLINTON, a/k/a Kenneth L. Eldridge, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-612, 80-653.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Sperber & Goldberg, John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor and James H. Greason, Asst. Attys. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The judgments under review are affirmed on the authority of Rosson v. State, 319 So.2d 64 (Fla. 2d DCA 1975); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967), cert. denied, 207 So.2d 452 (Fla.1967), and Perry v. State, 177 So.2d 892 (Fla. 3d DCA 1965), without prejudice to a motion under Fla.R.Crim.P. 3.850 to correct the sentences so as to give the defendant credit for time served under an earlier probation.

Affirmed.

      . We take this course because the record now before us is unclear as to whether the appropriate credit was in fact given in the sentences already imposed. See, Jenrette v. State, 373 So.2d 718 (Fla. 3d DCA 1979); compare, Ruiz v. State, 384 So.2d 723 (Fla. 3d DCA 1980).


author: DANIEL S. PEARSON, Judge.

text:
    DELTA GENERAL CORPORATION, Appellant, v. William PRIESS and Harriett Priess, Appellees.
    No. 80-1040.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    David A. Freedman, Miami, for appellant.
    Ira M. Witlin, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The Priesses, alleging that Delta General Corporation had failed to complete a house within the time agreed upon in a contract, brought suit for declaratory and injunctive relief and damages. On the Priesses’ motion for temporary injunction, the trial court ordered Delta to “exercise all good faith efforts to complete the house contracted for with the Plaintiffs within ninety (90) days.” Delta appealed. We have jurisdiction. See Fla.R.App.P. 9.130(a)(3)(B).

The order commanding Delta to complete the house within the time set by the court is a mandatory injunction. The law is well settled that a mandatory injunction may not be granted prior to a final hearing on the merits, except in those rare cases where the right to it is clear and free from reasonable doubt. American Fire & Casualty Co. v. Rader, 160 Fla. 700, 36 So.2d 270 (1948); Florida East Coast Railway Company v. Taylor, 56 Fla. 788, 47 So. 345 (1908); Montgomery Pipe & Tube Co. of Florida v. Mann, 205 So.2d 660 (Fla. 3d DCA 1968). This case does not fall within the exception. Indeed, the record reflects serious disputes over whether the completion date called for by the original contract was extended by a second contract to a date well beyond the date ordered by the court for completion, and whether delays in completion were caused by the Priesses. The right of the Priesses to a temporary mandatory injunction is far from clear and hardly free from reasonable doubt.

Accordingly, the order of the trial court is vacated.

Reversed and remanded.

      . Our decision makes it unnecessary to rule on Delta’s further claim that the trial court erred in granting this temporary injunction without bond in the absence of any evidence that the Priesses were financially unable to give bond. In the present case, this clear error, see Fla.R. Civ.P. 1.610(b); Muss v. Rosenberg, 353 So.2d 203 (Fla. 3d DCA 1977), serves only to exacerbate the error of entering the mandatory injunction.


text:
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellant, v. Jimmie ROBINSON, Appellee.
    No. 80-1113.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Shutts & Bowen and Susan L. Leventhal, Miami, for appellant.
    Gershon S. Miller, Miami Beach, for ap-pellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

A parked car owned by Suarez was damaged after a collision between vehicles operated by Jimmie Robinson and an employee of Southern Bell. Suarez sued Robinson and Southern Bell in the Dade County Court. After trial, the county court judge found Robinson not liable, and Southern Bell “solely liable” to Suarez for the $572.00 in damages to his vehicle. Robinson thereafter brought the present action against Southern Bell in the Dade County Circuit Court to recover for personal injuries he allegedly sustained in the same accident. In the order now under review the trial judge entered summary judgment on liability in favor of Robinson on the basis of the collateral estoppel effect of the county court judgment. We reverse.

It is a prerequisite to the application of the doctrine of collateral estoppel or estoppel by judgment that the issue which is sought to be foreclosed by the result of earlier litigation has been decided in an action “between” the parties in the later case. Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977); Zurich Ins. Co. v. Bartlett, 352 So.2d 921, 922 (Fla.2d DCA 1977), cert. denied, 359 So.2d 1210 (Fla.1978). This means, as the court said in Rader v. Otis Elevator Co., 327 So.2d 857, 858 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 602 (Fla.1976), that “estoppel must be predicated on a judgment between adversaries.” [e.s.] It is obvious that this element did not exist under the facts of this case. While Robinson and Southern Bell were aligned together in the county court as adversaries of Suarez, they were in no sense adversaries of each other. Hence, we hold, in accordance with the overwhelming weight of authority on the identical question, that the outcome of the earlier case has no effect on the present one. Harper v. Hunt, 247 So.2d 192 (La.App.1971) and Cook v. Kendrick, 16 Mich.App. 48, 167 N.W.2d 483 (1969) are precisely on point. See also, cases collected, Annot., Res Judicata-Codefendants, 24 A.L. R.3d 318, 360-64 (1969).

Reversed.

      . Robinson cross-claimed against Southern Bell but later dismissed the cross-claim without prejudice.

      . Pursuant to Fla.R.App.P. 9.130(a)(3)(C)(iv).

      . The terms are interchangeable. Gordon v. Gordon, 59 So.2d 40 (Fla. 1952), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952).


text:
    ITEL-PAS, INC., a foreign Corporation, Appellant, v. Harry F. JONES, M. D., Appellee.
    No. 80-1418.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.

      Haber, Kaplan & Rapoport, Miami, for appellant.
    Randolph W. Adams and Paul S. Adams, Ft. Lauderdale, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

In this action for damages for breach of a written agreement and non-payment of money, venue lies in Dade County. We therefore reverse the order in which the trial court transferred the cause to Broward County.

Section 47.011, Florida Statutes (1979) states:

Where actions may be begun.-Aetions shall be brought only in the county where the defendant resides, where the cause of action occurred, or where the property in litigation is located.

Plaintiff-appellant Itel-Pas, Inc. has its principal place of business in Dade County. Defendant-appellee Harry F. Jones, M. D. resides in Broward County. The written agreement is silent as to the place of payment. The law then implies that payment is to be made where the payee resides or has an established place of business and where payment under the contract may be made. Williams v. Aeroland Oil Co., 20 So.2d 346 (Fla.1944); Croker v. Powell, 115 Fla. 733, 156 So. 146 (Fla.1934); State of Florida, Department of Transportation v. San Marco Contracting Co., 355 So.2d 133 (Fla. 1st DCA 1978); Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977). In this case, the place of payment was not contained in the written agreement; the cause of action therefore accrued in Dade County, the site of the payee’s residence and place of business.

Applying section 47.011, we find that defendant resides in Broward County but the cause of action occurred in Dade County. To determine whether the trial court abused its discretion in transferring the cause, we review cases concerning choice of venue.

Election of venue is the prerogative of the plaintiff. Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978); Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla. 4th DCA 1975); O’Brien v. Mitchell, 190 So.2d 189 (Fla. 1st DCA 1966).

When venue is proper in more than one county, plaintiff may choose the county in which to file. Houchins v. Florida East Coast Railway Co., 388 So.2d 1287 (Fla. 3d DCA 1980). In order to prevail on a motion to transfer for improper venue, defendant must show that venue will not lie or that good reason to transfer exists under Section 47.122, Florida Statutes (1979). Perry Building Systems, Inc. v. Hayes & Bates, Inc., supra; Florida Forms, Inc. v. Barkett Computer Services, Inc., supra. We hold that the action was properly filed in Dade County, the site of the cause of action, and that defendant failed to carry the burden of proving a sufficient reason to transfer the cause to Broward County. Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA 1980).

Reversed and remanded.


text:
    Lewis Marion WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2015.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Jose E. Ferrer and Nathaniel L. Barone, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

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


author: GLICKSTEIN, Judge.

text:
    DATA LEASE FINANCIAL CORP., etc., Appellant, v. FOREMOST INSURANCE COMPANY, etc., Appellee.
    No. 79-37.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    Edna L. Caruso and Moyle, Gentry, Jones, Flanigan & Groner, P. A., West Palm Beach, for appellant.
    Joe N. Unger of Law Offices of Joe N. Unger, and Barranco, Darlson, Daniel & Bluestein, Miami, for appellee.
   ON REHEARING

GLICKSTEIN, Judge.

This court issued its opinion in this case on November 28, 1979, wherein we stated that appellant’s answer admitted the existence of an antecedent debt. The answer actually denied its existence even though the four affirmative defenses alleged the debt existed. There is no question that there can be inconsistent defenses alleged by the defendant in its answer and affirmative defenses. Accordingly, the previously issued opinion is modified to eliminate therefrom any reference to the answer of appellant admitting the existence of an antecedent debt. The modification, however, does not change the result.

The manager of the Mid-Atlantic Division of Foremost Insurance executed the affidavit in support of the motion for summary judgment. Paragraph 3 thereof states:

3. Prior to on or about February 4,1977, Mobile Agency, Inc., had business transactions with Plaintiff, as a result of which Plaintiff was owed the sum of $154,837.02. In accordance with its agreements, Plaintiff did forward monthly statements as to the account.

If there were a genuine issue as to the existence of the antecedent debt on February 4, 1977, it was incumbent upon the defendant to submit evidence by affidavit in support of its defenses to refute plaintiff’s claim, once the plaintiff had submitted evidence setting forth the presence of this indebtedness. See Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla. 2d DCA 1979). Instead, paragraph 1 of the affidavit in opposition to the motion for summary judgment alleges that “the statements made in the Answer to the Complaint and Affirmative Defenses are true” and paragraph 3 of the latter affidavit says:

3. It has not been established what amounts, if any, Mobile Agency, Inc., owes to the Plaintiff, and because of this the notes sued upon are not in default inasmuch as they were assigned merely to secure whatever debt Mobile Agency, Inc., owed to Plaintiff.

Section 673.303(1), (2), Florida Statutes (1979), provides that a holder takes the instrument for value:

(1) To the extent that the agreed consideration has been performed or that he acquires a security interest in or a lien on the instrument otherwise than by legal process; or
(2) When he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due . . .

In our opinion the counter-affidavit failed to create a genuine issue; therefore, we affirm.

The issue of damages remains to be tried.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


author: HURLEY, Judge. LETTS, Chief Judge,

text:
    SAFECO INSURANCE COMPANY, Appellant, v. Barbara Lyles SARKISIAN, Louis Schultz and Government Employees Insurance Company, Appellees.
    No. 79-797.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.

      Richard Yale Feder of Petersen & Feder, Miami, for appellant.
    Don R. Boswell of the Law Office of Sam Bloom, P.A., Miami, for appellee Sarkisian.
   HURLEY, Judge.

On this appeal an employer’s compensation carrier questions the trial court’s refusal to award it 50% of the settlement received by an injured employee. We reverse.

Barbara Lyles Sarkisian was injured in an automobile accident during the course of her employment. As a result, her employer’s compensation carrier, Safeco Insurance Co., paid her benefits of $85,275.00. When Ms. Sarkisian filed suit against the third-party tortfeasor, Safeco filed a notice of payment of compensation and medical benefits. The suit was settled for $75,000.00. On motion, however, the trial court declined to award Safeco 50% of the settlement and instead, entered an order of equitable distribution, awarding Safeco $8,000.00.

The operative statute is Section 440.-39(3)(a), Florida Statutes (1975). It provides in part:

The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee.

In Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla. 2d DCA 1977), the court recognized that the above statute constituted a departure from past practice and said:

The legislature has acted. We must give effect to the statutory criteria they have imposed. Under the revised statute, once the carrier establishes the expenditures it has made and the future benefits it is to pay, the employer Or carrier has the right to receive its 50% of any recovery against a third party tortfeasor, unless the employee demonstrates to the court that he did not recover full value of the damages he sustained because of (a) comparative negligence, or (b) limits of insurance coverage and collectibility. Thus, the legislature has now cast the burden on the employee if he is to succeed in reducing the employer’s carrier’s recovery from the 50% statutory entitlement. Id. at 548.

See also, Lumbermens Mutual Casualty Co. v. Simon, 375 So.2d 894 (Fla. 4th DCA 1979), and Maryland Casualty Co. v. Whitley, 375 So.2d 18, 19 (Fla. 1st DCA 1979) where the court held: •

Inadequate insurance, however, is only one prong of the statutory test. The employee must demonstrate that he got less than the full value of his claim “because of limits of insurance coverage and collectibility.” (Emphasis supplied.) The burden of proof is on the employee.

In the case at bar, the trial court conducted an evidentiary hearing on Ms. Sarkisian’s motion to determine equitable lien. Though she was present, she did not testify. Indeed, the only evidence received at the hearing was an injury progress report showing compensation benefits of $85,-275.00 paid because of the automobile accident, and an affidavit executed by counsel for the third-party tortfeasor. Nonetheless, the trial court denied Safeco’s claim for 50% of the $75,000 settlement. The court explained its rationale in its order denying Safeco’s petition for rehearing:

There is evidence that a second incident or occurrence involved the Plaintiff, as an employee. The nature of that incident or occurrence is referred to simply as a “robbery” which involved the Plaintiff and which occurred within a couple of weeks that followed the accident which gave rise to the present lawsuit. It appears that a part of the workmen’s compensation payments made by Safeco Insurance Company on behalf of BARBARA LYLES SARKISIAN could well have been attributed to or allocated to that accident, the subject matter of this suit, and the robbery which was a subsequent incident or occurrence.

We believe that Safeco satisfied its burden of going forward with the evidence by showing that $85,275.00 in benefits were paid on account of the automobile accident of January 14, 1975. The burden then shifted to Ms. Sarkisian to present evidence disputing the amount of the benefits, or the purpose for which they were paid. This she failed to do. Thus, the trial court’s order is not grounded on evidence in the record and must be reversed. We also note that there is a void of testimonial or documentary evidence on the issues of comparative negligence and collectibility. Accordingly, the order on petition for equitable distribution is reversed and the cause is remanded with directions to conduct a new hearing on the plaintiff’s motion. In order to permit effective appellate review, the trial court is requested to make findings of fact.

REVERSED and REMANDED.

ANSTEAD, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting:

I dissent.

In my view the record supports a demonstration of damages in the sum of $300,000 which the plaintiff settled for $75,000 which was $25,000 less than the policy limit.

      . Effective July 1, 1977, the statute’s recovery figure of 50% was amended to 100%.


author: PER CURIAM. ANSTEAD, Judge,

text:
    LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation, Modern Welding Company, a Kentucky Corporation, and Keith Reilly, an individual, Appellants, v. Michael MAGEE, a minor, by and through his mother, natural guardian, and next friend, Margaret McGowan, and Margaret McGowan, Individually, Appellees.
    No. 79-1600.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.

      Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for appellants.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellees.
   PER CURIAM.

This is an appeal from the denial of a “motion to dismiss or to transfer” based upon improper venue. In a previous appeal of this same matter this Court held that appellants (defendants) had failed to establish proper venue by sworn proof and we reversed an order granting a change in venue. On remand, the trial court denied a further transfer of the cause after the appellants had attempted to show, by affidavit, that the cause of action accrued in Glades County, Florida.

Appellees alleged in their complaint that a boating accident occurred “on the Rim Canal approximately one mile east of Moore Haven, within the confines of the State of Florida. . . . ” Appellants’ motion to dismiss or transfer was accompanied by an affidavit of the individual defendant wherein he stated that he operated his vessel “on the Rim Canal one mile east of Moore Haven, Glades County, Florida.” We take judicial notice that one mile east of Moore Haven, Florida is wholly within the boundaries of Glades County, Florida, and the Rim Canal is bordered on both sides by lands within Glades County. Accordingly, this cause of action accrued in Glades County and appellants’ affidavit was sufficient to support the motion for transfer. See Section 47.011, Florida Statutes (1979).

REVERSED AND REMANDED.

LETTS, C. J., and MOORE, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Although I am sympathetic with the result reached by the majority, it is difficult to square that result with the provisions of Chapter 47, the venue statute, and specifically Section 47.071 thereof which provides:

Jurisdiction over navigable waters.When the territorial jurisdiction of a court extends to one bank of any navigable water, such court has jurisdiction across such navigable water from shore to shore. If the territorial jurisdiction of different courts, whether of the same county or not, extends to the opposite bank of any navigable water, such courts have concurrent jurisdiction across said navigable water from shore to shore.

The territorial jurisdiction of the Circuit Court of Palm Beach County extends to one bank of the navigable body of water involved herein. Accordingly, Section 47.071 clearly authorizes the action involved herein to be filed in Palm Beach County as well as Glades County. See Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So.2d 441 (1946). That being so, I believe the appéllants have failed to demonstrate error by the trial court. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne and Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970).

      . Magee v. Liberty Mut. Ins. Co., 366 So.2d 827 (Fla. 4th DCA 1979).


text:
    Jerome Anthony JONES, Appellant, v. STATE of Florida, Appellee.
    No. 79-2488.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    Richard L. Jorandby, Public Defender, and Cathleen H. Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. This case is remanded for correction of sentence in that appellant was required to pay a two dollar cost assessment. Appellant having been declared indigent, this aspect of the sentence is clearly erroneous and will be stricken. Cox v. State, 334 So.2d 568 (Fla.1976).

BERANEK, HERSEY and HURLEY, JJ., concur-.


text:
    James Edward ESTEP, Appellant, v. STATE of Florida, Appellee.
    No. NN-35/T1-45.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a final order adjudicating defendant guilty entered by the Circuit Court of Volusia County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. Appellant was given thirty (30) days within which to file a brief on his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the adjudication of guilt is hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: ORFINGER, Judge.

text:
    LAND & LEISURE, INC., Appellant, v. Jesus VALDEZ et al., Appellees.
    No. 77-1627/T4-6.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    William Berger of Bailey & Dawes, Miami, for appellant.
    R. Shields McManus of McManus, Stewart & Ferraro, P. A., Stuart, for appellees.
   ORFINGER, Judge.

In this interlocutory appeal, appellant has failed to demonstrate an abuse of discretion by the trial judge in declining to strike parties as improperly joined, or in declining to dismiss counts for misjoinder. Bonded Rental Agency, Inc. v. City of Miami, 192 So.2d 305 (Fla. 3d DCA 1966) cert. denied, 201 So.2d 459 (Fla.1967); Milton v. City of Marianna, 107 Fla. 251, 144 So. 400 (1932).

With respect to the motion to dismiss addressed to individual counts, the motion should have been granted as' to Count IV, alleging an equity of redemption because we cannot discern a factual basis for this claim. If meant in its technical sense, there are no allegations that a mortgage is involved. If meant in its non — technical sense, as the value of the property in excess of its liens, there are no allegations which disclose this meaning. Perhaps an amendment to the count can reveal the basis upon which appellee claims an equity of redemption.

The order of the trial court declining to dismiss Count IV of the Complaint is reversed, and the trial court shall permit ap-pellees an opportunity to amend that count if they so desire. In all other respects, the order appealed from is affirmed.

AFFIRMED IN PART AND REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

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

      . Filed under former Rule 4.2, Florida Appellate Rules (1962) in the Fourth District Court of Appeal and transferred here.

      . 29A Fla.Jur., Secured Transactions, § 353 (1967). See also Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975), where it was held that a vendee in possession under an agreement for deed, after default and before relinquishing possession, had an equity of redemption which was subject to levy and execution under a judgment, within the meaning of § 56.061, Florida Statutes (1973).


author: HOBSON, Acting Chief Judge.

text:
    Joseph A. BARTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-2003, 79-2004.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The revocation of appellant’s probation is affirmed. However, we remand for correction of the orders of revocation and for resentencing.

The appellant pleaded guilty to two charges of grand theft and was placed on probation on both charges. Affidavits of violation of probation subsequently charged the appellant with numerous violations. At the hearing the court dismissed the contentions that appellant had failed to pay the costs of supervision and had used PCP but revoked his probation on several other grounds. Nevertheless, the trial court’s orders of revocation include the two allegations of violations which were dismissed. The finding of violations of these conditions should be deleted from the orders of revocation to conform them to the findings made at the hearing. Brouillett v. State, 373 So.2d 499 (Fla. 2d DCA 1980); Langston v. State, 371 So.2d 202 (Fla. 2d DCA 1979).

In case number 79-2003, we also find that the trial court erred in sentencing the appellant to ten years as an habitual offender absent a finding that such sentence was necessary to protect the public from further criminal activity. Section 774.084(4)(a), Florida Statutes (1979), provides that, under certain circumstances, the court may enhance a defendant’s sentence. However, the trial court is required to find that the imposition of such a sentence is necessary for the public’s protection. Ibbitson v. State, 366 So.2d 499 (Fla. 2d DCA 1979). While this finding need not be included in the trial court’s order, the court’s oral finding and its reasons, or the evidence supporting this finding, must appear in the transcript of the hearing. Eutesy v. State, 383 So.2d 219 (Fla.1980); Chuckes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). Here the trial court’s order which contains appellant’s sentence does not include the required finding. In addition, a review of the transcript provided reveals the court failed to orally address the question.

Therefore, we affirm both of appellant’s convictions and his sentence in case number 79-2004 but set aside his sentence in case number 79-2003 and remand for resentenc-ing. Violation numbers two and five shall be stricken from the orders revoking probation.

GRIMES and CAMPBELL, JJ., concur.


author: BOOTH, Judge.

text:
    STATE of Florida, Appellant, v. Elsie Virginia BOBBITT, Appellee.
    No. II-467.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.

      Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the trial court granting defendant a new trial following conviction of manslaughter in the death of defendant’s husband. The basis of the trial court’s award of a new trial was the court’s failure to instruct, over objection, that defendant had no duty to retreat from her home before justifiably acting in self-defense, as set forth in Florida Standard Jury Instructions in Criminal Cases 2.11(d):

One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another.

The trial court gave the Standard Jury Instruction on duty to retreat prior to use of deadly force, but denied the requested charge, supra, on the exception to duty to retreat, sometimes known as the “castle doctrine.” The State contends that such an instruction is inapplicable where, as here, the victim is not an intruder. Defendant argues the contrary position and further contends that the trial court should have granted motion for a judgment of acquittal at the close of all the evidence.

Evidence for the State established that Mr. Bobbitt died from a single bullet wound to the chest fired at a distance of greater than 12 to 18 inches; that the weapon was a .22 caliber revolver found in the kitchen in the home; that the deceased’s blood alcohol at the time of death was sufficient to cause mental confusion and loss of critical judgment; and that there were liver changes probably due to alcoholism. Further evidence was that the gun was purchased by Mr. Bobbitt and given to defendant some three years previously for protection, as she attended night courses. Defendant had not fired it nor any other gun prior to the events in question.

The State also introduced the testimony of 10-year-old Tracy Bobbitt, daughter of the parties, who, together with her baby brother, were present in the house. Tracy was in the kitchen but could see into the den when Mr. Bobbitt pushed defendant into the door, hurting her face and leg. Tracy testified that, “by turning and twisting,” the defendant was able to back into the kitchen and away from the deceased. There, she pulled a gun out of her pocketbook, which she had carried on her shoulder since entering the house, and, as the deceased came toward her, shot him when he was six to seven feet away.

Further evidence established that the deceased habitually became drunk and beat his wife and children. The history of abuse includes one incident where the deceased chased defendant around the house with a hammer. A family friend testified to having seen bruises on Mrs. Bobbitt on several occasions. A neighbor who was present in the yard of the house immediately prior to the shooting, testified that when the deceased came home, he had been drinking and that he threatened Mrs. Bobbitt while they were in the yard in such a manner that the neighbor felt impelled to leave and call the police.

The officer who arrived at the scene after the shooting observed that the defendant was limping and had a swelling on the left temple at about the cheekbone. Subsequent medical examination revealed a fractured left cheekbone, torn nerves in the upper jaw and injuries to her leg causing a limp. Medical testimony was that injuries to the face were of the type caused by a fist or a baseball bat to the cheekbone.

Initially, we must determine whether the jury instruction on self-defense was properly limited to the duty to retreat omitting the instruction as to the “castle doctrine” exception. In this regard, we agree with the trial court’s holding that the law did not require Mrs. Bobbitt to retreat from her home prior to acting in self-defense and that the jury should have been so instructed.

The Florida Supreme Court in Hedges v. State, 172 So.2d 824 (Fla.1965), expressly rejected the State’s argument “that the home rule exception to the requirement [of retreat] is not available when, as in that case, the attacker does not enter as a trespasser.” In Hedges, the trial court gave a self-defense instruction requiring the accused “to use all reasonable means within his power and consistent with his own safety to avoid the danger and avert the necessity of taking human life,” but failed to instruct that there is no duty to retreat in one’s own home. In reversing the conviction of manslaughter, the Florida Supreme Court held (172 So.2d at 826):

The quoted language [of self defense instruction] placed upon the accused the duty to use all reasonable means consistent with her own safety to avoid the danger and avert the necessity of taking human life. To the lay mind this well could be construed to mean the duty to run or to get out of the way. There is no such duty when one is assaulted in his own home, despite the common law duty to “retreat to the wall” when one is attacked .elsewhere. Pell v. State, 97 Fla. 650, 122 So. 110. While Pell involved a trespasser, it clearly states the rule to be that when one is violently assaulted in his own house or immediately surrounding premises, he is not obliged to retreat but may stand his ground and use such force as prudence and caution would dictate as necessary to avoid death or great bodily harm. When in his home he has “retreated to the wall.” Pell further decides that such an instruction should be an element of the charge of self defense where the evidence supports it. Other courts have held that a man is under no duty to retreat when attacked in his own home. His home is his ultimate sanctuary.

The Supreme Court in Hedges cites State v. Grantham, 224 S.C. 41, 77 S.E.2d 291, 292 (1953), in support of its holding. In the Grantham case, the husband’s conviction of murder in the death of his wife was reversed because the trial court erred in failing to instruct on the “privilege of non-retreat” in a case where the accused pleaded self-defense to an attack by the wife in the marital home. We agree and hold, as do the majority of jurisdictions, that the castle doctrine or privilege of non-retreat in the home applies regardless of whether co-occupants or intruders are involved. As stated in Redondo v. State, 380 So.2d 1107, 1111 (Fla. 3d DCA 1980), cert. granted, Case No. 59,032 (Fla. September 8,1980): “[0]ur normal solicitude for the life of the attacker is somewhat dampened when he chooses such historically protected premises on which to make his murderous assault.”

Having determined that there was no duty to retreat from the house and, consequently, that any finding by the jury regarding a failure to retreat is irrelevant, we now consider whether, as a matter of law, the evidence supports the manslaughter conviction in light of appellee’s plea of self-defense.

Appellee was justified in the use of deadly force only if she reasonably believed that such force was necessary to prevent imminent death or great bodily harm to herself. The test is whether a reasonably cautious and prudent person situated as she was would have believed, and did believe, that the use of such force was necessary to protect herself. She must have used all reasonable means within her power and consistent with her own safety to avoid the danger without the necessity of using deadly force. However, if she was unlawfully attacked in her own home, she had no duty to retreat from her home but, rather, could lawfully stand her ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to herself. See § 782.02, Fla.Stat. (1977); Hedges, supra; State v. Coles, 91 So.2d 200, 203 (Fla.1956); Stinson v. State, 245 So.2d 688 (Fla. 1st DCA 1971); Fla.Std.Jury Instr. (Crim.) 2.11(d).

Here, defendant’s evidence as to self-defense was sufficient to generate reasonable doubt as to guilt. The Supreme Court, in Lane v. State, 44 Fla. 105, 32 So. 896, 899 (1902), held that a jury instruction requiring the defendant to prove self-defense “to the jury’s satisfaction” was erroneous, since evidence raising a reasonable doubt was sufficient, holding: “[The instruction] imposes upon the defendant the duty of satisfying the jury that the defense was necessary. The jury need not be satisfied. If the evidence raises a reasonable doubt, it will be sufficient.” The defendant who relies on self-defense has the burden of going forward with the evidence, but the ultimate burden of proving guilt beyond a reasonable doubt never shifts from the State. Thus, the State here was required to prove beyond a reasonable doubt that ap-pellee did not act in self-defense. Bolin v. State, 297 So.2d 317, 319 (Fla. 3d DCA 1974), cert, denied, 304 So.2d 452 (Fla.1974); Fla.Std.Jury Instr. (Crim.) at page 66.

The law is, as stated by this court in Neveils v. State, 145 So.2d 883, 885 (Fla. 1st DCA 1962), that “[i]n the absence of other evidence legally sufficient to contradict the defendant’s explanation, his version cannot be ignored.” In Neveils, this court reversed a conviction of manslaughter where defendant’s explanation was not contradicted and physical evidence was consistent therewith. In Mayo v. State, 71 So.2d 899, 903 (Fla. 1954), the Florida Supreme Court reversed a second degree murder conviction, finding an “absence of other evidence legally sufficient to contradict” defendant’s explanation of self-defense. To like effect are Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980) (defendant’s direct testimony of self-defense not contradicted by evidence and conviction reversed), and Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980) (conviction of manslaughter reversed where no evidence rebutted defendant’s testimony of self-defense).

Appellee’s version, supported by the physical evidence, substantially corroborated by 10-year-old Tracy Bobbitt and uncontradicted by any evidence, showed that the deceased attacked appellee without provocation, inflicting serious bodily harm; that, thereafter, appellee attempted to get away by moving from the den into the kitchen; that, because of her leg injury, she had difficulty and was limping; that deceased continued to come toward her with no indication that he intended to discontinue his assault; that she pulled a weapon from her purse in the kitchen and shot him when he was only a few feet away. Thereafter, appellee immediately checked the condition of Mr. Bobbitt, called a rescue unit and attempted neither to flee nor to hide the gun.

In several respects, we find this case similar to McKnight v. State, 341 So.2d 261 (Fla. 3d DCA 1977), cert. denied, 348 So.2d 953 (Fla.1977), where conviction of aggravated assault on a charge of manslaughter was reversed. There the appellant was beaten up earlier in the day; and, hours later, the deceased indicated he was going to beat appellant again and ran toward her, whereupon she shot him. The court held judgment of acquittal should have been entered based on the uncontroverted evidence of self-defense.

Accordingly, judgment of conviction is reversed and the trial court is directed to discharge appellee from custody.

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

      . Standard Jury Instruction 2.11(d):
      If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.

      . The neighbor who attempted to place the call to the police unfortunately found the line was busy.

      . The decision of the Fourth District Court of Appeal in Conner v. State, 361 So.2d 774 (Fla. 4th DCA 1978), cert. denied 368 So.2d 1364 (Fla.1979), receding from its prior decision in Watkins v. State, 197 So.2d 312 (Fla. 4th DCA 1967), is apparently to the contrary and would exclude the exception to the duty to retreat in cases where both the accused and the assailant are legal occupants of the premises.

      . State v. Grantham, 224 S.C. 41, 77 S.E.2d 291, 292 (1953); State v. Phillips, 38 Del. 24, 187 A. 721 (1936); People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914); Davis v. State, 48 Ala.App. 58, 261 So.2d 783 (1972), cert. denied, 288 Ala. 741, 261 So.2d 785 (1972); State v. Browning, 28 N.C.App. 376, 221 S.E.2d 375 (1976); People v. Lenkevich, 394 Mich. 117, 229 N.W.2d 298 (1975); Gainer v. State, 40 Md.App. 382, 391 A.2d 856 (1978); State v. Jacoby, 260 N.W.2d 828, 835 (Iowa 1977), following State v. keeper, 199 Iowa 432, 200 N.W. 732 (1924). See also Haynes v. State, 17 Ga. 465, 483 (1855); State v. McPherson, 114 Minn. 498, 131 N.W. 645 (1911); Thomas v. State, 583 S.W.2d 32 (Ark.1979).
      The states clearly limiting the privilege of non retreat to intruders and persons other than co occupants are: State v. Grierson, 96 N.H. 36, 69 A.2d 851 (1950); State v. Pontery, 19 N.J. 457, 117 A.2d 473 (1955); Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972). See also State v. Boggs, 129 W.Va. 603, 42 S.E.2d 1, 8 (W.Va.App.1946); Commonwealth v. Shaffer, 367 Mass. 508, 326 N.E.2d 880 (1975) (stating that there is no right of self-defense until the defendant has availed himself of all proper means to avoid physical combat and there is no recognized exception to this general rule in Massachusetts). See generally, 26 A.L. R.3d 1296 Homicide: Duty to Retreat Where Assailant and Assailed Share the Same Living Quarters.


author: LARRY G. SMITH, Judge. WENTWORTH,

text:
    Nathaniel P. RICHARDSON, Sr., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Alice GOODRICH, Appellee.
    No. NN-266.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Lester Makofka of Makofka & Beatty, Jacksonville, for appellant.
    Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellant complains the trial court erred in denying his motion to set aside a final judgment because there was unrefuted evidence of excusable neglect and he had a meritorious defense, namely, that the action was barred by the statute of limitations, Section 95.11(3)(b), Florida Statutes (1979). We affirm.

Appellant’s motion states, among other things, that upon being served with process he contacted the office of the court administrator by telephone, and that the court commissioner’s secretary advised him that the court commissioner would get in touch with him shortly, and to wait until he was contacted further. Appellant made several further attempts to reach the court commissioner, but was unable to do so. Without further notice the court commissioner obtained a judgment of paternity against appellant, and a further order requiring him to pay child support.

Florida cases on the issue of setting aside defaults reflect a policy favoring a liberal exercise of discretion on the part of the trial judge in setting aside defaults, so that all reasonable doubts should be resolved in favor of the defaulted party, permitting a determination of the controversy on the merits rather than upon procedural technicalities. Country Clubs of Sarasota Ltd. v. Zaun Equipment, 350 So.2d 539 (Fla. 1st DCA 1977).

In this matter the complaint was filed by HRS on September 27, 1978, to determine paternity of a 12-year old child. On December 11, 1978, HRS moved for and obtained a default, and on December 12, 1978 a final judgment was entered determining paternity and ordering appellant to contact the court commissioner to make arrangement to pay a reasonable amount for support. On January 15, 1979, the court entered an amended final judgment requiring weekly payments in a specified amount. Appellant’s motion to set aside the default and final judgment was filed on February 7, 1979.

The motion here demonstrates that appellant was reasonably diligent in moving to set aside the judgment; and the circumstances as related in his sworn motion adequately support a showing of excusable neglect in failing to timely plead or otherwise appear so as to avoid a default. Florida Investment Enterprises Inc. v. The Kentucky Company, 160 So.2d 733 (Fla. 1st DCA 1964); Rule 1.540(b), Florida Rules of Civil Procedure.

Nevertheless, we are compelled to affirm because appellant has failed to show the existence of a meritorious defense. The only defense raised and briefed before this court was the applicability of Section 95.-ll(3)(b), Florida Statutes (1979) which required that an action relating to the determination of paternity be brought within four years. However, we note that the Supreme Court of Florida has recently struck down this statute as unconstitutional. State Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979). The court held that the statute violated the equal protection rights of illegitimate children because it required actions for support of illegitimate children to be brought within four years whereas legitimate children have a right to support throughout minority and because the statute was not substantially and logically related to its asserted goals. In view of this holding, we conclude that the statute of limitations is not a meritorious defense to this action.

The order is AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

WENTWORTH, J., concurs and dissents with written opinion.

WENTWORTH,

Judge, concurring and dissenting.

I concur in the majority’s reliance on State Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla. 1979), since an appellate court must dispose of the case according to the law prevailing at the time of the appellate disposition. Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla. 1967). However, since appellant’s motion asserted what was then a meritorious defense at the time of the action below, I would remand the case with leave to amend the motion to assert any other defense which may be applicable. Cf., Winter Park Golf Estates Inc. v. City of Winter Park, 153 So.2d 842 (Fla.1934).