author: HENDRY, Judge.

text:
    Irving LITTMAN, individually, and Park Lane Enterprises, Inc., a corporation, Appellants, v. COMMERCIAL BANK & TRUST COMPANY, a Florida banking corporation, Appellee.
    Nos. 81-847, 81-1690.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.

      George & McQuade and Walter F. McQuade, North Miami, for appellants.
    Schultz & Hollander and Steven A. Schultz, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellants Irving Littman and Park Lane Enterprises, Incorporated, defendants below, appeal from an adverse final summary . judgment in Commercial Bank & Trust Company’s action for damages resulting from appellants’ transfer of a fork lift which was subject to a security lien in favor of the bank.

Commercial Bank held a security interest on the fork lift under the Uniform Commercial Code (UCC) pursuant to an agreement with the debtor. When the debtor was adjudicated bankrupt, the fork lift was sold at public auction to Park Lane for $110, subject to the bank’s lien of $12,-057.31. One month later, having received no payments under the security agreement, the bank demanded that the appellants produce the fork lift. Littman, an officer of Park Lane, advised the bank that it had been resold for $850, subject to the bank’s lien. The bank was unable to locate either the alleged purchaser or the fork lift.

The bank then filed suit seeking damages for violation of sections 818.01 and 818.03, Florida Statutes (1979). Appellants entered a general denial to the bank’s complaint. After entry of partial summary judgment for the bank, the appellants sought rehearing and filed affidavits. The motion for rehearing was denied and on May 14, 1981, the court entered a final summary judgment for the bank awarding damages in the amount of $12,057.31, plus interest and costs against the appellants jointly and severally, and denying the bank’s claim for attorney’s fees. Judgment was also entered for the bank on Littman’s counterclaim. Rehearing was denied and the appellants filed this appeal. The bank filed a cross-appeal which was abandoned, and a motion to dismiss appeal No. 81-847 as having been taken from a non-final order. The appeals were consolidated and the motion to dismiss was granted, but the order of dismissal was vacated upon motion for rehearing and the appeals reinstated. Three main issues are raised by this appeal.

I

The first issue appellants raise is that the court below erred in entering summary judgment predicated on alleged violations of Chapter 818, Florida Statutes (1979), as section 818.01, which declares it a misdemeanor to dispose of property subject to a lien without consent of the vendor, directly conflicts with and has been impliedly repealed by section 679.311, Florida Statutes (1979) of the Uniform Commercial Code, which allows for transfer of a debtor’s rights in collateral notwithstanding a prohibition in the security agreement. Appellants further allege that neither section 818.01 nor 818.03, on which this action is founded, apply to a successor in interest to the original debtor; that there was no evidence in the instant case establishing the necessary elements set forth in the statutes; and that genuine issues of material fact exist precluding summary judgment. Appellants’ contention that section 818.01 is inconsistent with and was therefore repealed by enactment of section 679.311 of the UCC is based on a comment in Florida Statutes Annotated and an unpublished Florida Attorney General Opinion, No. 071-6, suggesting that such a conflict may exist.

At the outset we observe that this court has previously held that a violation of penal statutes 818.01 and 818.03, Florida Statutes, may give rise to a civil cause of action for compensatory and punitive damages as well as criminal penalties. Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964). Turning then, to the issues raised, we find that a resolution of appellants’ first contention involves construction and application of provisions of the UCC and other Florida Statutes.

In the absence of a showing to the contrary, it is presumed that all laws are consistent with each other and that the legislature would not effect a repeal of a statute without expressing an intention to do so. Woodgate Development Corp. v. Hamilton Investment Trust, 351 So.2d 14 (Fla.1977); State ex rel. School Board of Martin County v. Department of Education, 317 So.2d 68 (Fla.1975); Mann v. Goodyear Tire and Rubber Co., 300 So.2d 666 (Fla.1974). Courts must assume that later statutes were passed with knowledge of prior existing laws, and will favor a construction that gives a field of operation to both rather than construe one statute as being meaningless or repealed by implication unless such a result is inevitable. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980); State v. Zimmerman, 370 So.2d 1179 (Fla. 4th DCA 1979); State Department of Public Welfare v. Galilean Children’s Home, 102 So.2d 388 (Fla.2d DCA 1958). Where statutory provisions are irreconcilable, however, the general rule is that specific statutes on a subject take precedence over another statute covering the same subject in general terms. Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932); State v. Young, 357 So.2d 416 (Fla.2d DCA 1978), rev’d on other grounds, 371 So.2d 1029 (Fla.1979).

Applying these principles to the instant case, we initially observe that many of the provisions of the UCC interact, and although section 679.311 states that a “debtor’s rights in collateral may be voluntarily or involuntarily transferred,” this provision must be read together with section 679.306(2) which states that:

Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

Thus, section 679.311, while providing that the debtor has an interest which he can dispose of and which his creditors can reach, was also intended to protect the secured creditor’s interest by insuring that any transfer of the collateral does not destroy or affect a prior perfected security interest. Earthmovers, Inc. v. Clarence L. Boyd Co., Inc., 554 P.2d 877 (Okl.Ct.App.1976); see First National Commerce and Finance Co. v. Indiana National Bank, 360 So.2d 791 (Fla.3d DCA 1978); Altec Lansing v. Friedman Sound, Inc., 204 So.2d 740 (Fla.3d DCA 1967); accord American Heritage Bank & Trust Co. v. O. & E., Inc., 40 Colo.App. 306, 576 P.2d 566 (Colo.Ct.App.1978); Filker v. Honda Motor Co., Ltd., 87 Ill.App.3d 865, 42 Ill.Dec. 880, 409 N.E.2d 495 (Ill.App.Ct.1980); Memphis Bank & Trust Co. v. Pate, 362 So.2d 1245 (Miss.1978); Fliegel v. Associates Capital Co. of Delaware, Inc., 272 Or. 434, 537 P.2d 1144 (Or.1975). This is so even in cases where the secured creditor has consented to the transfer. See, e.g., R.I.D.C. Industrial Development Fund v. Snyder, 387 F.Supp. 466 (M.D.Fla.1975), rev’d on other grounds, 539 F.2d 487 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1112, 51 L.Ed.2d 542 (1977). Furthermore, other jurisdictions have found section 9.311 of the UCC no bar to enforcement of actions similar to the one in this case. See, e.g., Liberty Truck Sales, Inc. v. Fountain, 381 So.2d 646 (Ala.Civ.App.1980) (sale of collateral with the intent to defraud the holder of a security interest therein is a crime); Oxford Production Credit Association v. Dye, 368 So.2d 241 (Miss.1979) (secured creditor may recover damages from the debtor and the debtor’s purchaser where collateral is sold); Trans-Nebraska Corp. v. Cummings, Inc., 595 S.W.2d 922 (Tex.Civ.App.1980) (secui’ed creditor may sue the debtor’s buyer for conversion of the collateral).

We think it clear that to the extent of any conflict, the specific statutory provisions of sections 818.01 and 818.03 must prevail over the general terms of section 679.311. Additionally, both section 818.01 and 818.03 were amended following adoption of the UCC and after the unpublished Attorney General Opinion upon which appellants rely, demonstrating that the legislature found no conflict between the provisions. Accordingly, we find no genuine conflict exists between UCC provision 679.311 and sections 818.01 and 818.03 so as to preclude application of the latter in the instant case.

Appellants’ contention that neither section 818.01 nor 818.03 apply to a successor in interest to the original debtor is likewise without merit. Both sections specifically refer to “whoever” throughout, clearly not limiting their application to an original debtor under a security agreement. Compare sections 818.01 and 818.03 with section 817.562 which makes it actionable fraud to sell or otherwise dispose of secured property, but limits the scope thereof to those persons “having executed a security agreement creating a security interest in personal property.” Section 817.562(2), Florida Statutes (1981). Appellants would have us distinguish Rosenberg v. Ryder Leasing, Inc., supra, where the defendant removed from the county and disposed of a power brake on which the plaintiff held a first mortgage, from the case sub judice on the basis that the defendant in Rosenberg was the original debtor. Contrary to appellants’ assertion, there is no indication in Rosenberg that the defendant was the original debtor, nor that the decision is so limited. Therefore, its holding that a violation of sections 818.01 and 818.03 is a tort for which compensatory and punitive damages may be awarded applies to the instant case. Although Rosenberg predates the adoption of the UCC in Florida, as stated above, we find no conflict between section 679.311 and sections 818.01 and 818.03 precluding maintenance of the present action.

Appellants further contend that even if sections 818.01 and 818.03 have not been repealed and do apply to third party purchasers, the evidence below simply does not support their application in the present case, and in any event, genuine issues of material fact remain for resolution.

We agree with appellants’ contention that the record fails to support application of section 818.03 in this case. There is no evidence that the fork lift was at any time removed beyond the county limits — a necessary prerequisite to a violation of that section. However, the elements necessary to support a violation under section 818.01 were proven by the pleadings, affidavits, admissions, and answers to interrogatories below. It is undisputed that the subject fork lift was sold by Park Lane through its duly authorized officer, Irving Littman, without the knowledge or written consent of the bank. Appellants affirmatively answered interrogatories establishing that Irving Littman handled the sale of the fork lift for Park Lane, and that the sale took place on or about December 18, 1979, at a price of $850 above the bank’s lien of $12,-057.31. Moreover, the statute itself provides that failure of the purchaser of secured property to produce or deliver said property upon demand of the secured creditor after the debt has become enforceable or the vendee has substantially defaulted shall be prima facie evidence of “concealing, selling or disposing,” of such property. § 818.01(2), Fla.Stat. As appellants sold the fork lift without the written consent of the bank, failed to produce it in response to the bank’s demand, and raised no genuine issues of material fact in their affidavits opposing the summary judgment, the necessary elements of section 818.01 were established and judgment was properly entered for the bank as a matter of law.

II

Appellants’ second contention is that the trial court erred in entering judgment against Irving Littman individually. We disagree. Individual officers and agents of a corporation are personally liable where they have committed a tort even if such acts are performed within the scope of their employment or as corporate officers or agents. Adams v. Brickell Townhouse, Inc., 388 So.2d 1279 (Fla.3d DCA 1980); Bush v. Belenke, 381 So.2d 315, 316 (Fla.3d DCA 1980); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So.2d 73 (Fla.3d DCA 1973) and cases cited; see Dade Roofing and Insulation Corp. v. Torres, 369 So.2d 98 (Fla.3d DCA 1979). Since Irving Littman personally handled the purchase and resale of the fork lift, he is individually liable for the tort alleged herein and the trial court properly denied his motion to dismiss. Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla.4th DCA 1981).

III

The third and final contention raised alleges that the trial court erred in using the unpaid balance under the security agreement as the measure of damages. As appellants have cited no authority for their assertion that fair market value is the appropriate measure of damages, and this is a case of first impression, we turn to other statutory provisions for guidance.

Section 78.19, Florida Statutes (1981), which deals with replevin of personal property, for example, provides that where the goods are redelivered to the defendant, the plaintiff prevails, and the plaintiff’s interest in the property is based on a lien or some special interest, the judgment is limited to the amount of the lien or the value of the special interest.

Similarly, section 679.504 of the UCC provides that upon default, the proceeds from sale or other disposition of collateral by the secured party shall be applied in the following manner: (1) expenses incurred in disposition of the property; (2) the satisfaction of indebtedness secured by the security interest; and (3) the satisfaction of indebtedness secured by any subordinate security interest.

Consequently, we think the proper course in the present case is to require appellants to pay the remaining balance under the security agreement as damages, particularly in light of the fact that they both purchased and resold the fork lift subject to the bank’s lien, indicating at least some knowledge and acceptance of the lien as the property’s true value. Accordingly, the trial court’s assessment of damages, which has not been shown to be clearly erroneous under the facts and circumstances of this case, is affirmed.

Affirmed.

      . 679.311 Alienability of debtor’s rights; judicial process. — The debtor’s rights in collateral may be voluntarily or involuntarily transferred (by way of sale, creation of a security interest, attachment, levy, garnishment or other judicial process) notwithstanding a provision in the security agreement prohibiting any transfer or making the transfer constitute a default.

      . 818.01 Disposing of personal property under lien, etc.—
      (1) Whoever shall pledge, mortgage, sell, or otherwise dispose of any personal property to him belonging, or which shall be in his possession, and which shall be subject to any written lien, or which shall be subject to any statutory lien, whether written or not, or which shall be the subject of any written conditional sale contract under which the title is retained by the vendor, without the written consent of the person holding such lien, or retaining such title; and whoever shall remove or cause to be removed beyond the limits of the county where such lien was created or such conditional sale contract was entered into, any such property, without the consent aforesaid, or shall hide, conceal or transfer, such property with intent to defeat, hinder or delay the enforcement of such lien, or the recovery of such property by the vendor, shall be guilty or a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      (2) It shall be prima facie evidence of concealing, selling, or disposing of such personal property whenever the person owning the property at the time the lien was created, or who bought the same under such retained title contract, fails or refuses to produce such property for inspection within the county where the lien was created, or the property delivered, upon demand of the person having such lien, or retaining such title, after the debt secured by such lien has become enforceable, or the vendee has substantially defaulted in the performance of such retained title contract.

      . 818.03 Removing such property beyond the limits of county. — Whoever shall knowingly and without the written consent of the person having such a lien thereon, as mentioned in s. 818.01, buy, take, receive or remove or cause to be removed beyond the limits of the county, any personal property subject to such lien from the owner or any person in possession thereof, and whoever shall willfully conceal such property or obstruct, delay or hinder such lienholder in prosecuting his rights against any of such property, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      . We also note that subsequent to adoption of the UCC, the First District applied section 818.-01 in a criminal setting in Helmig v. State, 330 So.2d 246 (Fla. 1st DCA 1976).

      . Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964), holding that a civil suit could be maintained based on a violation of section 818.01 and 818.03, was limited to a determination of whether the complaint therein stated a cause of action, and did not decide what evidence would be sufficient to sustain the action, or the proper amount of damages in a successful suit.

      . Appellants have made no attempt either in this court or below to show the actual value of the fork lift or that any other measure of damages would be more just. Nothing in this opinion, however, shall preclude use of fair market value as the measure of damages in future cases under these statutes where it is shown to be an appropriate recovery.


source: Caselaw Access Project

author: SCHWARTZ, Chief Judge.

license: Public Domain

text:
    Donald AIKEN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1967.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

Aiken was charged with second degree murder and found guilty of manslaughter. We reverse the conviction upon the holding that the victim’s death was an excusable homicide.

The record shows that the eventually fatal incident began when, as he had often in the past, the defendant was searching for food in the garbage containers at the rear of a Miami supermarket. He was holding a plastic milk crate which he intended to use to gain access to a garbage dumpster, when he was approached by Robert Dawson. Mr. Dawson lived nearby and was apparently incensed by the adverse effect the activities of Aiken and his compatriots were supposedly having on the neighborhood. A confrontation ensued in which both men “called each other some nasty words,” and, which, after some mutual pushing and hauling, culminated in Aiken’s using the milk crate to shove Dawson backwards away from him and onto the ground. Unfortunately for both of them, the back of Dawson’s head struck the ground and he died from the fractured skull which resulted from the impact.

Under Sec. 782.07, Fla.Stat. (1981), a killing is not manslaughter if it involves an “excusable homicide.” That is the ease here. Dawson’s unfortunate death was clearly one which occurred, as defined in Sec. 782.03, Fla.Stat. (1981), “upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.” This conclusion is supported, in fact required, by the virtually identical ease of Tipton v. State, 97 So.2d 277 (Fla.1957). There, the victim died of a heart attack after being pushed to the floor at the end of an abusive argument with the defendants. The supreme court held that the death was an excusable homicide and did not therefore constitute manslaughter. It stated

From the evidence and the charge we conclude that the jury could have found that the defendants placed their hands on deceased and that both defendants were drunk, disorderly and cursed deceased in the presence of his wife.
Sk * 5j« # %
It is clear from reading the provisions of Section 782.02, - justifiable • homicide, and Section 782.03, excusable homicide, to which one is lead by the definition of manslaughter in Section 782.07 that every act causally connected with the killing of a human being is not punished by the homicide chapter, and more specifically, not by the general manslaughter statute. There is no need to record here any of the exemptions other than the one which is broad enough to cover the situation at hand: ‘Homicide is excusable when committed * * * by accident and misfortune in the heat of passion, * * * upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.’ The noun ‘combat’ has many meanings attributed to it in dictionaries — running from, ‘an encounter or fight between two armed persons,’ to a figurative use, ‘a conflict; struggle; strife; controversy.’ Oxford English Dictionary (Oxford 1933). To most of us who translate literary terms for our own times it means, either literally or figuratively, a fight. Defendants’ conduct — a battle of vituperation, climaxed by rude pushes — falls within the connotation of a figurative combat.
The trial judge should have granted defendants’ motion for a directed verdict the denial of which has been assigned as error, since the state failed to present any evidence to prove the cause of death or, even if proper instruction had been given, to prove that these defendants were guilty of manslaughter, [e.s.]

97 So.2d at 280, 281-82, 285.

Since, like the defendants in Tip-ton, Aiken administered nothing more than a “rude push” following a “battle of vituperation” and therefore engaged only in a “figurative combat,” we must also find that Dawson’s death was excusable and not the result of manslaughter. Accord, People v. Vollmer, 299 N.Y. 347, 87 N.E.2d 291, 292-93 (1949) (no manslaughter committed when “flurry of blows from defendant’s fist sent the other man to the floor and to death”); Mead v. State, 65 Okl.Cr. 86, 83 P.2d 404, 410 (1938) (same when homicide was the result of a single blow, culminating an altercation between accused and deceased); State v. Lange, 82 S.D. 666, 152 N.W.2d 635, 638-39 (1967) (same when deceased died from “injuries sustained in an ordinary drunken street brawl in which the defendant only used his bare hands in throwing the victim once to the pavement; ... single momentary blow, or thrust to the pavement ... even when applied with considerable force” which results in death is not manslaughter). The state attempts to distinguish Tipton on the ground that Aiken used the milk crate, which it says was a “dangerous weapon,” against the victim. Since, however, the crate was used only to push Dawson backward, and his death was caused by the push and fall, and not by the crate, this position is entirely groundless. See M.M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980); Smith v. Nussman, 156 So.2d 680 (Fla. 3d DCA 1963). Under the circumstances, the crate was simply an extension of Aiken’s hands and the functional equivalent of Tipton’s.

For these reasons, the judgment is reversed and the cause remanded with directions that the appellant be discharged.

Reversed and remanded.

      . The only independent witness was a neighbor of the decedent who viewed the incident from some distance away. His testimony was not at all inconsistent with the defendant’s, which must therefore be regarded as controlling the question of the sufficiency of the evidence. McArthur v. State, 351 So.2d 972, 976-78 (Fla.1977), and cases cited.

      . The defendant claims that this evidence, see n. 3, infra, establishes that he acted in self-defense and that the death was therefore justifiable homicide under Sec. 776.012, Fla.Stat. (1981). It is unnecessary to pass upon this contention.

      . Aiken described, see n. 1, supra, the ultimate events as follows:
      A. So he had taken his hand and placed it on the plastic container which I had in my right hand, and I had taken my right hand and thought in my own mind that he was going to do some harm to me so I had taken my right hand with the plastic container and had twisted myself towards him with the plastic container, shoving it into the man’s chest and knocking the man to the ground, and he never got back up, so naturally I got scared and walked away from him.
      * * % * *
      Q. Okay, Were you scared of him?
      A. In a sense yes, and in a sense no, because neither one of us backed up from each other.
      Q. Okay. In what sense were you not afraid of him?
      A. Because I felt he was going to do some harm to me.
      Q. No. My question is: Hów were you afraid of him; what did he do to make you afraid of him?
      A. Well, it was just the way he — the expression on his face, the way he conducted himself. But then again, on the same token, I was not afraid of him because I knew I could handle myself.
      Q. Alright. What caused you to shove the milk crate into his chest?
      A. Well, when he took his right hand and placed it over the — I should say on the side of the milk crate pushing the milk crate and telling me put the milk crate down. Well, right there I figured he was going to do some bodily harm to me.
      Q. How did you figure he was going to do some harm to you?
      A. I figured he was going to haul off and hit me. So naturally I took a normal response and just plowed the milk crate into his chest knocking him backwards.

      Q. How much force did you use?
      A. I’d say I used quite a bit. I would say enough to shove him backwards and knock him on the ground, on his back.

      A. ... My impression of the whole thing, I thought he was going to hit me or harm me in some kind of a way, and that’s the reason I plowed the crate into his chest and knocked him onto the ground.
      Q. Did he raise his fists like he was going to hit you or anything?
      A. The only thing he did that made me respond the way I did, was he pushed the crate to the side and said, ‘Put it down.’

      A. ... He did not make any threats at me. But when he pushed the crate away to the side, that’s when I felt that he was going to try to harm me. So that’s when I took my response.

      . Manslaughter. — The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

      . The entire section provides

        Excusable homicide. — Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapons being used and not done in a cruel or unusual manner.

      .The fact that the Tipton court also and alternatively held that the cause of death had not been established does not affect the binding nature of this conclusion. Clemons v. Flagler Hospital, Inc., 385 So.2d 1134, 1136, n. 3 (Fla. 5th DCA 1980).

      . The medical examination of Dawson’s body revealed only minor bruises, which did not contribute to his death, at points corresponding to where the crate had been placed.


author: JORGENSON, Judge.

text:
    The STATE of Florida, Appellant, v. Israel Martin PADRON, Appellee.
    No. 81-2287.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Jim Smith, Atty. Gen., and John Roben-alt, Lima, Ohio, and Penny H. Hershoff, Miami, for appellant.
    Bennett Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   JORGENSON, Judge.

The State of Florida appeals from the trial court’s orders granting the defendant’s motion to suppress physical evidence and the defendant’s motion to suppress statements. For the reasons which follow, we affirm in part and reverse in part.

The essential facts are not in dispute. Israel Padrón concedes that he was validly stopped for a traffic infraction and, thereafter, arrested for failure to produce his motor vehicle registration and driver’s license. Padrón spoke only Spanish. The arresting officer had only a limited knowledge of Spanish. Following his arrest, the interior compartment of Padron’s vehicle was searched, including the contents of a black cloth suitcase located behind the driver’s seat. Inside the suitcase were five plastic bags containing marijuana and a Mac-10 submachine gun, together with a silencer, magazine and cartridges. Thereafter, Padrón was transported to the Coral Gables police station and given his Miranda warnings by a Spanish-speaking officer. Padrón indicated that he did not wish to give a statement without an attorney being present. The Coral Gables officers terminated their questioning of the defendant at that time.

Officers of the Coral Gables police department then contacted the Metro Dade police department to see if anyone at that agency wished to speak to the defendant. The county police authorities indicated that they did wish to talk to Padrón about the firearms violation and certain other crimes, and he was subsequently transported to Metro Dade police headquarters where a Coral Gables officer advised the county officers that the defendant, Padrón, had invoked his sixth amendment right-to-counsel privilege. Notwithstanding these advices, the county officers re-advised Padrón of his Miranda rights, after which he made certain oral and written statements.

The state first argues that the trial court erred in granting the motion to suppress the physical evidence. We agree and consequently reverse that order. We have recently considered this issue in a case with strikingly similar facts. See State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982). Relying on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), Judge Daniel Pearson, speaking for the court in Valdes, held that “the validity of the search as incident to the arrest is unaffected by the fact that the police officers classified their actions as an inventory search.” Valdes, 423 So.2d at 944. See also United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Savoie v. State, 422 So.2d 308 (Fla.1982).

The trial court correctly granted Padron’s motion to suppress statements. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state’s reliance on Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), is misplaced. Moseley does not deal with the sixth amendment right-to-eounsel. Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980), and Tuff v. State, 408 So.2d 724 (Fla. 1st DCA), petition for review denied, 413 So.2d 877 (Fla.1982), are equally inappo-site. Once a defendant invokes his right to counsel, further custodial interrogation is prohibited. Edwards, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378; Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Harris v. State, 396 So.2d 1180 (Fla. 4th DCA 1981). See also United States v. Hinckley, 672 F.2d 115 (D.C.Cir.1982).

For the reasons previously advanced, the order granting the motion to suppress physical evidence is reversed, the order granting the motion to suppress statements is affirmed, and this cause is remanded for further proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part and remanded for further proceedings.

      . There is no issue with respect to the validity of the arrest.


author: PER CURIAM.

text:
    Marvin J. RAPPAPORT, Appellant, v. Herman FINESOD and Harris Shapiro, Appellees.
    No. 82-374.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Lawrence B. Friedman and Robert B. Miller, North Miami Beach, for appellant. Sidney L. Syna, Miami, for appellees.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Scott v. City of Tampa, 158 Fla. 712, 30 So.2d 300, cert. denied, 332 U.S. 790, 68 S.Ct. 99, 92 L.Ed.2d 372 (1947); Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA 1980); Fewox v. Tallahassee Bank & Trust Co., 249 So.2d 55 (Fla. 1st DCA), cert. denied, 252 So.2d 799 (Fla.1971).


text:
    SUN BANK OF RIVERSIDE, a Florida banking corporation, Appellant, v. Gerald TAINES, Harold Z. Taines, and Sue Taines, Appellees.
    Nos. 82-640, 82-1079.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Maro & Soto and Jack Maro, Miami, for appellant.
    Smith & Mandler and Patricia M. Silver, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

The summary final judgments in favor of the defendants are reversed since there were material issues of fact remaining as to whether the renewal of the guaranty obligation sued upon was executed contemporaneously with the further extension of credit to the primary obligor. Jones v. McConnon & Co., 100 Fla. 1158, 130 So. 760 (1930); Gordon v. Corporate Insurance Services, Inc., 374 So.2d 603 (Fla. 3d DCA 1979). Cf. Brandon v. Pittman, 117 Fla. 678, 158 So. 443 (1934); Gibbs v. American National Bank of Jacksonville, 155 So.2d 651 (Fla. 1st DCA 1963), cert. discharged, 170 So.2d 821 (Fla.1964).

Reversed and remanded.


text:
    Norman DUNNELL and Bessie Lee Dunnell, individually and as husband and wife, Appellants, v. MALONE AND HYDE, INC., a foreign corporation, Appellee.
    No. 82-643.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.

      Virgin, Whittle & Garbis and Gary E. Garbis, Miami, for appellants.
    Batchelor, Brodnax, Guthrie, Armstrong & Freyer and William G. Burd, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   HENDRY, Judge.

The plaintiffs appeal the trial court’s order dismissing with prejudice their amended complaint, for failure to state a cause of action.

The amended complaint, in essence, alleged that on December 9, 1980, the plaintiff, Norman Dunnell, while working for Robbins Warehouse was required in the course of his work to make deliveries to various companies. While making delivery of merchandise on said date to the defendant/appellee Malone and Hyde, Inc., at its place of business in Dade County, Florida, the plaintiff requested from defendant suitable equipment for moving of merchandise from his truck onto the premises of the defendant since the plaintiff had no other means available to unload the merchandise.

It was further alleged that the defendant owed the plaintiff the duty of providing him with sufficient and safe equipment with which he could unload his truck and deliver defendant’s merchandise at its premises and that the defendant breached that duty by refusing to furnish the plaintiff with suitable or sufficient equipment to perform his job when it was known or should have been known to the defendant that the merchandise plaintiff was delivering was of such weight that suitable means in the form of equipment would be required for its removal from the truck to defendant’s facility. The defendant, however, denied the plaintiff’s request for an electronic jack to aid him in unloading his truck, although one was readily available and in good working order. Finally, it was alleged that after this refusal, plaintiffs required performance of his task with the inadequate equipment made available was the proximate or contributing cause of the injuries sustained by the plaintiff.

The defendant made a motion to dismiss the amended complaint for failure to state a cause of action, which motion was granted, with prejudice. It is from this order that plaintiffs have appealed. The sole question to be determined on appeal is whether the trial court was correct in dismissing with prejudice the amended complaint. We hold that the trial court erred in granting the motion to dismiss, and reverse.

Under our rules of procedure, when a court is considering the validity of plaintiff’s complaint upon the filing by the defendant of a motion to dismiss on the grounds of failure to state a cause of action, the court must “confine itself strictly to the allegations within the four corners of the complaint.” Pizzi v. Central Bank and Trust Company, 250 So.2d 895, 897 (Fla.1971); Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3d DCA 1981), and cases cited. For the purpose of this consideration, the court also must accept as true the allegations of fact contained in the complaint, Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972), and the court is without authority to speculate as to what the true facts may be or what facts will ultimately be proved in the trial of the cause. Furthermore, a motion to dismiss may not act as a substitute for a motion for summary judgment. Temples v. Florida Industrial Construction Co., Inc., 310 So.2d 326 (Fla. 2d DCA 1975).

These same limitations circumscribe the consideration of an appellate court in reviewing the trial court’s ruling on the validity of the complaint as against such motion to dismiss. What the proofs may ultimately show is not a question in the proceedings before us, nor was it a proper question to be considered by the trial court. The sole issue is and was whether the amended complaint contained sufficient allegations of ultimate fact to state a cause of action affording relief, if ultimately proved.

From our consideration of the amended complaint, we have concluded that it complies with the Rules of Civil Procedure and sufficiently states a cause of action. Accordingly, the order appealed is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

      . See Fla.R.Civ.P. 1.110.


text:
    CITY OF MIAMI BEACH, Appellant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellee.
    No. 82-650.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    John A. Ritter, Rosenberg, Reisman & Glass and R. Hugh Lumpkin, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Thomas B. Bo-urque, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Florida Board of Regents v. Fidelity & Deposit Co., 416 So.2d 30 (Fla. 5th DCA 1982).


text:
    William J. CONRAD, Jr., Appellant, v. Barbara M. Methfessel CONRAD, Appellee.
    No. 82-750.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Gars, Dixon & Shapiro and Robert Dixon, Miami, for appellant.
    Ferrell & Ferrell and Milton Ferrell, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The parties to this appeal agreed at oral argument that the second and third issues involved in this appeal had been resolved between them leaving only the question of whether the trial court abused his discretion in awarding the wife the marital home as lump sum alimony. We affirm the trial court since no clear abuse of discretion is demonstrated on this record. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    G.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-799.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., BARKDULL, J., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

Flight alone is insufficient as a matter of law to sustain a finding of delinquency. State v. Young, 217 So.2d 567 (Fla.1968); G.A.D. v. State, 340 So.2d 522 (Fla. 3d DCA 1976).

Therefore the adjudication under review is reversed with directions to discharge the respondent.

Reversed and remanded with directions.


text:
    Victor McDUGOL, a/k/a Kenny Moore, Appellant, v. The STATE of Florida, Appellee.
    No. 82-803.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.

      Bennett H. Brummer, Public Defender, and Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Lynch v. State, 293 So.2d 44 (Fla.1974); State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979); Singleton v. State, 315 So.2d 506 (Fla. 3d DCA 1975).


text:
    Steven S. KIROU, Appellant, v. OCEANSIDE PLAZA CONDOMINIUM ASSOCIATION, INC., a not-for-profit Florida corporation, Appellee.
    No. 82-1259.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Pepe & Nemire and Thomas Pepe, Coral Gables, for appellant.
    Smith & Mandler and Mitchell Mandler, Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

This case concerns the proper interpretation of the following portion of the Oceanside Plaza Declaration of Condominium:

Costs and Attorneys’ Fee. In any proceeding arising because of an alleged failure of a Unit Owner to comply with the terms of the Condominium Act, the Condominium Documents or the rules and regulations adopted pursuant thereto, the prevailing party shall be entitled to recover the costs of the proceeding and Reasonable Attorneys’ Fees as may be awarded by the court.

The monumental action which raises the issue began when the condominium association filed a complaint against one of its unit owners, the appellant Kirou, and his tenants, the Gewirtzes, seeking to cancel his “Pet Agreement” and remove the offending animals on the ground that the Gewirtzes’ dogs had disgraced themselves in and on the common elements. Kirou filed an answer and what was styled a “counterclaim” for a declaration that the rules and regulations invoked by the association did not apply to the instant situation. The trial judge granted the association’s motion for judgment on the pleadings as to the counterclaim, but, after the trial, ruled for Ki-rou on the merits, holding that the association was not entitled to evict the dogs. Accordingly, he awarded Kirou $1,500.00 in attorneys’ fees. In the order now on review, however, he also assessed $1,350.00 in fees in Oceanside’s favor because it had succeeded in respect to the counterclaim. We reverse.

It is clear to us that only Kirou was entitled to recover under the attorneys’ fees provision in question. The “proceeding” below was one in which the association sought to get the dogs out, and Kirou tried to keep them in. When the dust — or whatever— had cleared, they were still there. Thus, notwithstanding the intermediate battle, or rather skirmish, over the counterclaim, which had no effect on the ultimate result, Kirou plainly won, and the association plainly lost the war. It was therefore not the or even a “prevailing party” in the proceeding and thus should not have been awarded fees. Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980), and cases cited; see also, Steinhardt v. Eastern Shores White House Association, Inc., 413 So.2d 785 (Fla. 3d DCA 1982).

Reversed.

      . The association does not challenge this award.

      . While the appellee claims, and the trial court held that the counterclaim presented a separable controversy, there is no doubt that the position asserted could as well have been denominated an affirmative defense. If that had been the case, it would not have been even arguable that the association was entitled to fees. The result should not, however, turn upon mere questions of nomenclature. Moreover, and more important, pleading intricacies do not control the only issue before us, which is what is meant by the pertinent clause of the agreement.

      .We are not uninfluenced by the hope that this result, as well as our own additional award of $1,500.00 against the association for appellate fees, will discourage the maintenance of such actions — of which “trivial” is a hyperbolic description — in courts already overburdened by matters which, unlike this, justify their attention.


text:
    Bruce Allen MELOF, Appellant, v. Genevieve MELOF and Donald Earle Melof, Appellees.
    No. 82-1591.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Ginsberg & Goldman and Daniel Ginsberg, North Miami Beach, for appellant.
    Barranco & Kellough, and A.J. Barranco and Peter H. Kircher, Miami, for appellees.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980); §§ 61.13(1), (4), Fla.Stat. (1981).


text:
    HELEN HOMES CORPORATION, a Florida corporation for profit, and Helen Shaham, individually, and Empire Fire & Marine Insurance Company, a foreign insurance company, Appellants, v. Elizabeth HETTERLING By and Through Thelma HETTERLING, Appellees.
    No. 82-1813.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    Lanza, Sevier, Womack & O’Conner and James C. Kelley, Coral Gables, for appellants.
    Granville E. Petrie, Jr., Coconut Grove, for appellees.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. A.H. Robins Co., Inc. v. Devereaux, 415 So.2d 30 (Fla. 3d DCA 1982); Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1981).


author: WEINBERG, RICHARD G., Associate Judge.

text:
    SENTRY INDEMNITY COMPANY, a corporation, Appellant, v. HARTFORD ACCIDENT & INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 82-96.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1983.

      Patricia C. Fawsett of Akerman, Senter-fitt & Eidson, Orlando, for appellant.
    Charles Cook Howell, Jr. of Howell & Howell, P.A., Jacksonville Beach, for appel-lee.
   WEINBERG, RICHARD G., Associate Judge.

Appellant, Sentry Indemnity Co. (Sentry), seeks reversal of a declaratory judgment finding Sentry to be the primary insurer and thus liable to the secondary insurer, appellee Hartford Accident & Indemnity Insurance Co. (Hartford) for a settlement negotiated by Hartford.

Sentry provided auto insurance coverage to Murphy Rental Company (Murphy) which contained the following exclusion:

As respects coverage on automobiles rented or leased to others, it is understood and agreed that coverage hereunder is void provided there is other valid and collectible insurance against such loss.

Murphy leased an automobile to Dolime Minerals Company (Dolime) under a lease agreement that required Dolime to obtain insurance for the vehicle. Dolime carried a policy with Hartford that provided primary insurance for covered autos Dolime owned, and excess insurance for covered autos Dol-ime did not own. With regard to the vehicle in question, Hartford gave Dolime an endorsement to the policy characterizing the vehicle as “a covered auto you own and not a covered anto you hire, borrow or lease.... ” The endorsement also added Murphy as an additional insured.

The vehicle, while being driven by an employee of Dolime, was involved in an accident with a motorcycle operated by Charles Lobsiger. Lobsiger filed suit against the driver, Dolime, Murphy, and Hartford. Hartford undertook the defense. Thereafter Hartford cross-claimed for a declaratory decree that Sentry’s policy exclusion was void because of section 627.7263, Florida Statutes (1981), and therefore Sentry was the primary insurer of the vehicle and had the duty to defend. Hartford subsequently settled Lobsiger’s claims and the cause proceeded on Hartford’s cross-claim. The trial court ultimately ruled that Sentry’s coverage was primary and Hartford’s coverage was secondary and held Sentry liable to Hartford for the full amount of the settlement. We reverse.

Section 627.7263 provides that insurance for a lessor shall be primary unless otherwise stated in “bold type” on the face of the rental or lease agreement. The lease agreement between Murphy (lessor) and Dolime (lessee) contained a paragraph which required the lessee to provide insurance. A substantial portion of the argument in this appeal by both sides was directed to the issue whether or not the insurance paragraph was in “bold type,” to make lessee the primary insurance provider in derogation of Florida Statute 627.7263. In reviewing the trial court’s decision it is unnecessary to become embroiled in this contention. Resolution lies elsewhere.

We have held that section 627.7263 provides a means by which the lessor may shift the obligation for primary coverage to the lessee. P & H Vehicle Rental, Etc. v. Garner, 416 So.2d 503 (Fla. 5th D.CA 1982). See also Racecon, Inc. v. Mead, 388 So.2d 266 (Fla. 5th DCA 1980) (construing section 627.7263 prior to its amendment in 1977, providing that lessee’s insurance would be primary). The legislature intended to protect unwary lessees of motor vehicles from responsibility of providing insurance unless their liability was conspicuously designated in “bold type” under requirements of the present section 627.7263. The sole question which we must answer on this appeal is whether or not one insurer (Hartford in this case) may provide insurance coverage for both the lessor and the lessee under the same motor vehicle lease? In Raeecon, this court discussed the right of parties to contract freely to provide insurance coverage required by applicable statutes. Such right to contract was held to be proper if the public policy of the state was satisfied. Section 627.7263 was construed so as to permit the lessor to provide primary coverage through the doctrine of contractual freedom. The “bold type” provision was to advise the lessor of this requirement.

It is not necessary for us to determine whether or not the lessor properly shifted its obligation to the lessee for primary coverage by use of the “bold type” mandate. P & H Vehicle Rental, Etc. v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982); Patton v. Lindo’s Rent-A-Car, Inc., 415 So.2d 43 (Fla. 2d DCA 1982). The record is clear Hartford contractually undertook to provide both the primary coverage mandated to be furnished by the lessor (Murphy) and the lessee’s contractual obligation to furnish insurance under the lease agreement. Obligatory features of section 627.-7263 were met by Hartford’s policy of insurance covering both lessor and lessee. The statute cannot be the basis for shifting responsibility from the insurer of both obligations to other available coverage. Accordingly, it is unnecessary to address other points on appeal.

The final judgment is reversed and remanded with directions to enter judgment for Sentry.

REVERSED AND REMANDED.

SHARP and COWART, JJ., concur.

      . Section 627.7263 provides, in part:
      (1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736.


author: ORFINGER, Chief Judge.

text:
    Charles Sheppard DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-260.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1983.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

The trial judge did not err in denying appellant’s motion for judgment of acquittal because there was competent evidence identifying appellant as the perpetrator of the crime charged. The fact that the evidence is in conflict does not entitle appellant to a judgment of acquittal because the weight of the evidence and the credibility of the witnesses is for the jury. Tibbs v. State, 397 So.2d 1120 (Fla.1981); Streeter v. State, 400 So.2d 504 (Fla. 5th DCA 1981). Error, if any, in rejecting the deposition testimony of a witness to contradict the witness’ testimony at trial is harmless, because the witness testified to substantially what the deposition testimony would have shown. The judgment of conviction is

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Charles Earl SMITH, Appellee.
    No. 82-396.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

An affidavit charging appellant with a violation of probation was dismissed by the trial court for the reason that the probationary period had expired one day prior to the time the affidavit was filed. The State appeals. We affirm.

On February 9, 1979, appellee was placed on probation for three years. Because of criminal activity in which he was allegedly involved, an affidavit for violation of probation was filed February 9, 1982. The State contends that under Florida Rule of Criminal Procedure 3.040, the day of the probation order is not counted, thus the three-year period would end February 9, 1982. Using this analysis, the State contends that the probation order was still in effect on the day the affidavit for violation was filed.

Appellee contends, however, that to sustain this position, we would have to agree that appellee was not subject to the probation order on February 9, 1979, the date on which it was imposed. Appellee contends that this result is obviously illogical and incorrect and we agree. To determine when this probation period ended, we must determine when it began. Here, the period of probation began on February 9, 1979, and the defendant was subject to the order from the moment it was imposed. Without a doubt, the probation could have been revoked for a violation which occurred that day. Therefore, each full year of the probationary period ended on the next succeeding February 8, and the three year probation period here ended on February 8, 1982. See Gardner v. State, 412 So.2d 10 (Fla. 2d DCA 1981).

A court may only revoke probation for violations which occur during the term of that probation. Swift v. State, 362 So.2d 723, 724 (Fla. 2d DCA 1978). Once a probation term has expired, the court is divested of all jurisdiction over the probationer unless prior to that time the processes of the court have been set in motion for revocation or modification of probation. Kimble v. State, 396 So.2d 815 (Fla. 4th DCA 1981); Bouie v. State, 360 So.2d 1142 (Fla. 2d DCA 1978).

The order of dismissal is

AFFIRMED.

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


author: DELL, Judge.

text:
    Frank DARNABY, as Personal Representative of the Estate of John W. Darnaby, deceased, Appellant, v. GREENSTEIN TRUCKING COMPANY, a Florida corporation, and Protective Insurance Co., a foreign insurance corporation, Appellees.
    No. 81-2194.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.

      R. Thomas Farrar of Holland & Knight, Coral Gables, for appellant.
    Robert F. Jordan of Conrad, Scherer & James, Fort Lauderdale, for appellee.
   DELL, Judge.

Appellant seeks review of an order granting a final summary judgment in an action for damages for breach of contract arising out of a wrongful death.

The decedent, John W. Darnaby (Darna-by), died from personal injuries which he sustained while riding as a passenger in a truck which collided with an underinsured motorist in the State of Illinois. Darnaby owned the truck, but did not have an Interstate Commerce Commission (ICC) license to haul in interstate commerce. He leased the truck to appellee, Greenstein Trucking Company (Greenstein), which holds such a license, and operated the truck on behalf of Greenstein in exchange for a percentage of the profit. The lease agreement contained the following provision:

It is understood that the leased equipment during the term of this agreement, is in the exclusive possession, control and use of the lessee and that the lessee assumes full responsibility for its operation during term of said lease. (Emphasis added.)

Greenstein provided liability insurance for the tractor and for the trailer. He did not provide uninsured motorist coverage, since he had executed a written rejection of such coverage.

Appellant alleged that Greenstein assumed responsibility for providing uninsured motorist coverage on the decedent’s vehicle, but he failed to offer any direct evidence that the parties intended that the lessee provide uninsured motorist coverage or that there was any other undertaking outside of the contract to provide such coverage. The trial judge found that the lease did not create an obligation or duty to provide uninsured motorist coverage and entered summary judgment in favor of ap-pellee.

Appellant contends the trial court erred in granting summary judgment because the words “full responsibility” as used in the lease created an ambiguity as to the contractual intent of the parties.

The lease provided for the rental of the truck for use in interstate commerce. The Interstate Commerce Code provides:

(e) Subject to the provisions of subsection (f) of this section, the Commission is authorized to prescribe, with respect to the use by motor carriers (under leases, contracts or other arrangements) of motor vehicles not owned by them, in the furnishing of transportation of property—
(2) Such other regulations as may be reasonably necessary in order to assure' that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof, which requirements may include but shall not be limited to promulgation of regulations requiring liability and cargo insurance covering all such equipment.

49 U.S.C. § 804(e) (now amended by 49 U.S.C. § 11107) (emphasis added).

We are persuaded by appellees’ argument that ICC regulations require the language contained in the lease. The Code of Federal Regulations provides:

Other than equipment exchanged between motor common carriers interchange service as defined in § 1057.5, authorized carriers may perform authorized transportation in or with equipment which they do not own only under the following conditions:
(a) Contract Requirements. The contract, lease or other arrangement for the use of such equipment:
(4) Exclusive Possession and Responsibilities. Shall provide for the exclusive possession, control and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement, except:

49 C.F.R. § 1057.4 (emphasis added). The Court in Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975), stated that enforcement of safety requirements and the fixing of “financial responsibility for damage and injuries to shippers and members of the public were significant aims and guideposts in the development of the comprehensive rules.” 423 U.S. at 37, 96 S.Ct. at 234. Appellant has failed to cite any applicable federal statute or regulation which requires uninsured motorist coverage. On the other hand, 49 U.S.C. § 315 (now amended by 49 U.S.C. § 10927) and 49 C.F.R. § 1043.1(a) require motor carriers to maintain minimum limits of liability insurance.

It is well established that uninsured motorist coverage may be rejected by the lessor of a rental vehicle and that such rejection binds the lessee even though he is unaware of it. Morpurgo v. Greyhound Rent-A-Car, Inc., 339 So.2d 718 (Fla. 1st DCA 1976); Kohly v. Royal Indemnity Company, 190 So.2d 819 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967); Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla. 3d DCA 1977). Appellant argues our decision should be controlled by Mackenzie v. Avis Rent-A-Car Systems, Inc., 369 So.2d 647 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla.1979) and Riccio v. Allstate Insurance Co., 357 So.2d 420 (Fla. 3d DCA 1978). In Mackenzie, supra, the lease expressly stated that the lessee would provide insurance coverage “in accordance with the standard provisions of an automobile liability insurance policy.” The court found the lease contained an ambiguity regarding the question of whether uninsured motorist coverage is a standard provision in an automobile policy. In Ric-cio, supra, the insured had asked that he be furnished with coverage up “to the legal limits” and that he be provided with “full coverage.” The court determined that a jury issue existed as to the meaning of full coverage.

Our review of the record satisfies us that appellee simply promised to provide “liability insurance” and that the phrase “full responsibility for its operation” complies with ICC requirements. The lease contains no language referring to insurance and appellant failed to show that appellee expanded or qualified his promise to provide liability insurance in any way which would lead appellant to believe that the lessee would furnish uninsured motorist coverage.

Therefore we find that the trial court properly determined that no genuine issue of material fact existed which would preclude granting summary judgment and properly entered same in favor of the appel-lee. Accordingly, the judgment is affirmed.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    Virgil STEFFENS, individually and as Trustee, Appellant, v. George URGO, Appellee.
    No. 82-261.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.

      J. Stockton Bryan, Stuart, for appellant.
    James M. Stuckey, of Stuckey & Rutland, P.A., Stuart, for appellee.
   LETTS, Chief Judge.

Appellee entered into a sales agreement to buy a parcel of real estate from appellant. Said agreement provided that it was “contingent on the buyers’ ability to secure a building permit from the City of Stuart for an office building and warehouse complex within 60 days.” The agreement made no reference to any specific office building and warehouse complex of any particular size, nature or description. As it turned out, the buyer was unable to get a permit for a complex as large as he desired. Therefore, when the sixty days for obtaining a permit passed, he sued for recovery of his deposit made pursuant to the agreement. The lower court entered a final summary judgment in his favor, granting him a return of the deposit. We affirm.

The seller suggests that what we have here is a purchaser who placed a vague contingency in a sales agreement and then designed his proposed building «so as to insure that the contingency could not be fulfilled. However the record does not support any such course of conduct. All the record reveals is that the plans presented for the building were rejected by the city because of insufficient parking spaces (we are not told the number). The record then shows a resubmission of the plans with an increase from twelve to eighteen parking spaces and a decrease in area of the proposed building from 15,000 square feet to 11,700 square feet. There is no showing why this amended set of plans was rejected. In fact, there is not even an allegation or a showing that the original plans presented were anything other than those contemplated when the contingency was written into the agreement.

When a sales agreement contains a contingency such as this, the buyer has to make a showing of a good faith effort to comply with it. The timely submission of plans to the building department is in and of itself evidence of such good faith, particularly so in this instance because of evidence of resubmission of an amended plan with less square footage and fifty percent more parking. At that juncture the seller had the burden of demonstrating some bad faith which was not done here. There is no allegation nor any evidence that the purchaser did not proceed in good faith. Ergo, under the terms of the sales agreement he is entitled to a return of his deposit.

This case is distinguishable from Lee v. Bowlerama Enterprises, Inc., 368 So.2d 913 (Fla.3d DCA 1979), relied on by the seller. In Lee the court carefully pointed out that there was no attempt to get approval for a smaller building and no attempt to secure a readily available alternative liquor license. Thus in Lee there was evidence to support a showing of lack of good faith, while in the case now before us there is none.

AFFIRMED.

DOWNEY and WALDEN, JJ., concur.


text:
    Donald M. NARRON, Appellant, v. STATE of Florida, Appellee.
    No. 82-347.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Donald M. Narron, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review we conclude that the appellant had a fundamental right to receive credit for the time he served in jail applied against the sentence imposed upon his conviction. Accordingly, we reverse and remand this cause with directions that an order be entered granting the appellant credit against his sentence for jail time served prior to sentencing.

ANSTEAD, DELL and WALDEN, JJ., concur.


text:
    Anne J. TRINKA k/n/a Anne J. Bunfield, Appellant, v. Joseph TRINKA, Appellee.
    No. 82-847.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Martin L. Haines, III, of Haines & D’An-gio, Chartered, North Palm Beach, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

ANSTEAD, DELL and WALDEN, JJ., concur.


text:
    The MOORING CONDOMINIUM ASSOCIATION OF PINE CREST, INC., Appellant, v. Albert V. TOOMEY, Appellee.
    No. 82-1107.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Andrew D. Kaplan and Michael L. Hy-man of Michael L. Hyman, P.A., Miami, for appellant.
    Welcom H. Watson, Jr. of Watson, Hubert & Clark, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the dismissal of appellant’s complaint but remand with instructions for the trial court to amend its order to provide leave for appellant to amend its complaint within a specified reasonable time.

ANSTEAD, DELL and WALDEN, JJ., concur.


author: CAMPBELL, Judge. OTT, Chief Judge,

text:
    STATE of Florida, Appellant, v. Robert Lynn MURRAY, Appellee.
    No. 82-271.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellee.
   CAMPBELL, Judge.

The state charged appellee in Count I of an information with leaving the scene of an accident without fulfilling the requirements of section 316.062, Florida Statutes (1980), contrary to section 316.027, Florida Statutes (1980). Pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure, appellee filed a motion to dismiss Count I of the information. The sworn statements in support of the motion to dismiss reflected that the testimony of all available witnesses revealed the following undisputed facts:

(a) On September 3, 1981, the Defendant was operating a Honda motorcycle, license number 227825, which contained one passenger, Linda M. Moneymaker. Linda Moneymaker is a friend of the Defendant’s brother who was living in Nokomis, Florida.
(b) The motorcycle was traveling on Albee Road in Nokomis, Florida, and overtook an automobile traveling in the same direction on that road. After passing the automobile, the motorcycle went onto the right shoulder of Albee Road, then veered back into the right lane of Albee Road. The passenger, Linda Moneymaker, was thrown onto the right shoulder of Albee Road. The motorcycle continued through the right lane into the left lane and went onto its side on the left shoulder of Albee Road.
(c) Cornelia Buster of 107A Sunair Terrace, Nokomis, Florida, testified in depositions that she observed the events described in paragraph B and walked up to the scene. At that time she saw Joe Feguer talking to Linda Moneymaker who was on the ground. The Defendant was attempting to pick up Linda Moneymaker at which time Cornelia Buster told him to leave her alone and that she had called an ambulance.
(d) Rudy Rost of 405 West Albee Road, Nokomis, Florida, observed the Defendant run back to Linda Moneymaker [and] attempt to pick her up[.] [H]e also observed that Linda Moneymaker appeared to be limp and that Defendant appeared to drop her. He also observed the Defendant pick up the motorcycle and place it into the back of a red Datsun pickup truck.
(e) All witnesses then observed the Defendant go back across the road, restart the motorcycle, and travel away from the scene.
(f) C.E. Abbott, of the Florida Highway Patrol, was called to Nokomis at approximately 5:50 p.m. on September 3, 1981. When he arrived, an ambulance was on the scene and Linda Moneymaker was inside of the ambulance. He interviewed the above-mentioned persons at the scene and also attempted to speak to Linda Moneymaker at the hospital. He observed that Linda Moneymaker appeared to be intoxicated and that she indicated that she did not know what happened, that she also gave her name and where she lived, and that the person who was driving the motorcycle was a friend of hers named Bob. Officer Abbott also indicated that Linda Moneymaker appeared to be uncooperative; and that she had been unconscious for approximately two hours.
(g) Defendant, Robert L. Murray, called the Florida Highway Patrol approximately a day and a half later to turn himself in. He stated that the motorcycle ran off the edge of the road and overturned and that he himself was in considerable pain from road burns. He also stated to Officer Abbott or someone at the Florida Highway Patrol that he went to Linda Moneymaker, she told him that she was okay and that he could go.

The state filed no traverse or demurrer, averring instead that the undisputed facts as alleged by the appellee did, in fact, establish a prima facie case of guilt against him. The trial court granted appellee’s motion to dismiss and the state appealed. We reverse.

While most of the argument concerns whether or not appellee rendered all assistance necessary or requested by his injured passenger, we feel that even that was likely a jury question. However, we need not reach that question in order to sustain the charge as set forth in Count I of the information. Section 316.062, among other things, requires that the driver of the vehicle involved in an accident resulting in injury or death to any person shall give the information required in the statute and ex-Mbit his driver’s license, if any, to any police officer at the scene of the accident or who is investigating the accident. Admittedly, there was no police officer at the scene when appellee determined that he should leave. However, the statute goes further in section 316.062(2) and provides that if no police officer is present, the driver involved shall forthwith report the accident to the nearest office of a duly authorized police authority. Here, the appellee did not await the arrival of the police officer and, in fact, waited an additional day and a half to comply with section 316.062(2). We consider those circumstances sufficient to constitute a prima facie case of guilt against the appellee as charged in Count I of the information.

REVERSED and REMANDED.

RYDER, J., concurs.

OTT, C.J., dissents, with opinion.

OTT, Chief Judge,

dissenting.

I dissent.

I would affirm the trial court’s dismissal of the charge. The admitted facts do not establish a prima facie case against appel-lee.

The undisputed facts are that appellee took his brother’s girlfriend on a motorcycle ride. Appellee passed an automobile, lost control of the motorcycle, and the passenger was thrown onto the right shoulder of the road, appellee and the motorcycle coming to rest on the left shoulder. Appellee went back to render aid to the injured passenger, but bystanders advised him not to move her and that an ambulance had been called. Appellee was suffering pain caused by “road burns,” and he did not possess a valid driver’s license. When he inquired of the injured passenger, she advised appellee that she was okay and he could go. Appellee took the motorcycle and left the scene. No police officer had arrived on the scene prior to appellee’s departure.

Section 316.027(1), Florida Statutes (1981), requires the driver of any vehicle involved in an accident resulting in personal injury or death to remain at the scene of the accident until the requirements of section 316.062 are fulfilled. Section 316.062 requires the driver to give his name, address, and vehicle registration number to the owner of damaged property or any injured person, and, if requested, exhibit his driver’s license. Further, such information must be given to any police officer at the scene, and the driver is required to render or secure reasonable assistance to the injured person. Finally, if the injured party is not in condition to receive the information and no police officer is on the scene, the driver should report the accident and give the same information to the nearest police authority.

Under section 316.027(2), any person willfully failing to stop or comply with the foregoing requirements is guilty of a felony.

It is well settled that a statute should be construed so that the result is not absurd or unreasonable, but rather to effectuate the obvious purpose and objective of the legislature. E.g., George v. State, 203 So.2d 173 (Fla. 2d DCA 1967). Applying this principle to section 316.027, it is apparent that the objective of the legislature in enacting this statute was the protection of persons who suffered personal injury caused by a driver unknown to them who could not be located and held responsible for the injury in the absence of the statute.

Requiring appellee to provide the injured passenger with his name, address, and vehicle registration number is unreasonable in this case. It was neither requested nor required. The passenger was the girlfriend of appellee’s brother, and the passenger knew appellee; therefore, it was unreasonable and unnecessary for appellee to literally provide the specified identifying information. Under these facts, appellee did not willfully fail to comply with the statutory requirements.

Additionally, appellee was in the process of attending to the injured passenger when he was advised an ambulance was on the way. Thus, appellee complied with that portion of the statute requiring him to render or secure reasonable assistance to any person injured in the accident.

Section 316.062(2) required appellee to “forthwith” report the accident to the nearest police authority only if the injured party was in no condition to receive the specified information and if no police officer was present. Both conditions must be satisfied. Because the injured party possessed sufficient information (as previously discussed), and further, the facts did not demonstrate she was unable to receive it, it was not necessary that appellee report the accident and supply the information, although he actually did so a day and a half later.

Based on the foregoing reasons, I would AFFIRM the trial court’s dismissal of the charge.


author: HOBSON, Judge.

text:
    James Manford PECK, Appellant, v. STATE of Florida, Appellee.
    No. 82-279.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

The state charged James Manford Peck in a two-count information with 1) kidnapping (of six persons), in violation of section 787.01, Florida Statutes (1981), and 2) robbery with a firearm (of one of the six persons), in violation of section 812.13, Florida Statutes (1981).

After a bench trial, the court orally adjudged appellant guilty as charged and orally sentenced him “for a term of 20 years on kidnapping, and 20 years on the robbery with a weapon, with a minimum of three years mandatory.” Thereafter, it rendered a written order convicting him of both crimes and sentencing him to concurrent terms of imprisonment of 20 years with three-year mandatory minimums. Further, its order required him to pay $102 in court costs and $10 to the Crimes Compensation Fund.

Appellant argues that the trial court erred in sentencing him in the written order to a three-year mandatory minimum on the kidnapping conviction. Also, he contends that the court erred in imposing court costs and in requiring him to make payments to the Crimes Compensation Fund. We agree with both assertions.

In order for a three-year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a “firearm” or “destructive device” during the commission of the crime. See Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981). Here, the information did not charge appellant with possession of a firearm during the commission of the kidnapping and the trial court did not so find. Thus, we remand with directions to strike from the order the three-year mandatory minimum on the kidnapping, conviction.

The trial court adjudged appellant indigent prior to trial and appointed the public defender to represent him. Therefore, we further instruct the court, on remand, to strike the portion of the order requiring him to pay $102 in court costs and $10 to the Crimes Compensation Fund. Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).

Accordingly, we affirm the convictions and the robbery sentence but remand for correction of the kidnapping sentence and for deletion of the costs.

OTT, C.J., and SCHEB, J., concur.

      . We note that these directions may actually comport with the court’s oral pronouncements at the sentencing hearing. See Benefield v. State, 351 So.2d 56 (Fla. 2d DCA 1976).


text:
    Richard H. JONES, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AN-83.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.
    Richard H. Jones, pro se, appellant.
    Earl H. Archer, Acting Gen. Counsel Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Britt v. Florida Parole & Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Lopez v. Florida Parole & Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Vzella SCOVILLE, Appellee.
    No. 82-152.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.

      Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

Reversed. See State v. Sokos, 426 So.2d 1044 (Fla. 2d DCA 1983).

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


text:
    Arthur PEARLMAN, as Personal Representative of the Estate of Harry Pearlman, Deceased, Appellant, v. Helen PEARLMAN, Appellee.
    Nos. 80-2011, 82-1971.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Cypen & Cypen, Miami Beach, Horton, Perse & Ginsburg and Mallory Horton, Miami, for appellant.
    Heller & Kaplan and Daniel Heller and Robert Golden, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Case No. 80-2011 is held in abeyance pending final determination by the circuit court, in accord with this court’s directions, of the defendant’s rule 1.540(b) motion.

On the authority of Pelekis v. Florida Keys Boys Club, 302 So.2d 447 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 751 (Fla.1975), case no. 82-1971 is reversed and remanded for further proceedings as follows: in reaching its final determination the trial court is directed (1) to permit full discovery of the plaintiff, her attorneys and any other party relative to the defendant’s rule 1.540(b) motion and (2) thereafter conduct an evidentiary hearing on the defendant’s rule 1.540(b) motion. See also Seven-Up Bottling Co. of Miami v. George Construction Corp., 166 So.2d 155 (Fla. 3d DCA 1964) (motion for relief from a final judgment grounded upon fraud merits a full opportunity to present all available facts to the court).

No. 80-2011 held in abeyance. No. 82-1971 reversed and remanded with directions.

      . We note that no privilege attaches to a communication or transaction between an attorney and client with respect to their perpetration of fraud. Kneale v. Williams, 158 Fla. 811, 30 So.2d 284 (1947); Anderson v. State, 297 So.2d 871 (Fla. 2d DCA 1974); Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964).


text:
    Thomas Stevenson GAUSE a/k/a Howard Isiah Gause, Appellant, v. The STATE of Florida, Appellee.
    No. 82-333.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Bennett H. Brummer, Public Defender and Jay M. Levy, Sp. Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen. and Paul Mendel-son and William P. Thomas, Asst. Attys. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff’d, - U.S. -, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); White v. State, 377 So.2d 1149 (Fla.1979); Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981); State v. Bolton, 383 So.2d 924 (Fla. 2d DCA 1980); Thomas v. State, 356 So.2d 827 (Fla. 4th DCA 1978).


text:
    Enrique ACOSTA, Appellant, v. Louise ACOSTA, Appellee.
    Nos. 82-696, 82-923 and 82-982.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    James F. Dougherty, II, Miami, for appellant.
    Jill D. Touby, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

By virtue both of the controlling- and unanimous cases, e.g., Erspan v. Badgett, 659 F.2d 26 (5th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982) and a subsequently enacted statute, the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408(c)(1) (1982), the Supreme Court decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) may not be retroactively applied. We therefore reject the appellant’s primary contention. His other points merit neither reversal nor discussion.

Affirmed.


text:
    Alvin FISHER, M.D., Appellant, v. Edward I. HEILBRONNER; Sparber, Zemel, Roskin & Heilbronner, P.A.; Sparber, Shevin, Shapo & Heilbronner, P.A.; and American Bankers Insurance Company of Florida, Appellees.
    No. 82-757.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Arky, Freed, Stearns, Watson & Greer and Bradford Swing, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Louise H. McMur-ray, Miami, for appellees.
    Before HUBBART and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Guided by the well-established principles that in determining the propriety of the entry of a summary judgment, we must view the facts in a light most favorable to the party against whom judgment has been entered, McGahee v. Dade County Board of Public Instruction, 279 So.2d 87 (Fla. 3d DCA 1973), and indulge all proper inferences in favor of such party, Thermo Air Contractors, Inc. v. Travelers Indemnity Co., 277 So.2d 47 (Fla. 3d DCA 1973), we are compelled to conclude that the appellees have failed to show conclusively, as they must, Visingardi v. Tirone, 193 So.2d 601 (Fla.1967), that there were no genuine issues of material fact as to whether the appellees undertook to represent or did in fact represent the appellant; the appellees breached the duty which arose out of that representation; and the appellees’ breach proximately caused damage to the appellant. Accordingly, the summary judgment entered in favor of the appellees is reversed and the cause remanded.

Reversed and remanded.


text:
    M.E.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-922.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Bennett H. Brummer, Public Defender and Robert L. McKinney, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. L.J. v. State, 421 So.2d 198, 199 (Fla. 3d DCA 1982).


text:
    Frederick W. KOEBRICH, Appellant/cross-appellee, v. Gertrude Kahn KOEBRICH, Appellee/cross-appellant.
    No. 82-1954.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 1983.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant/ cross-appellee.
    Gordon C. Brydger of Brydger & Levitt, P.A., Sunrise, for appellee/cross-appellant.
   PER CURIAM.

This is a non-final appeal from an award of temporary alimony. The dissolution proceeding involves substantial assets with conflicting claims by both parties against jointly and individually owned real estate. The trial court awarded a total of $17,500 in temporary benefits. The trial court has great latitude in awarding temporary alimony and support and we find no abuse of discretion in this case. This dissolution proceeding is now in its sixth year and we urge that the matter be brought to its conclusion.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    USI FINANCIAL, INC., Appellant, v. Harold SCOTT, Appellee.
    No. 82-329.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.
    James A. Moreland of Moreland, Palmer & Marshall, P.A., Winter Park, for appellant.
    Craig M. Spanjers of Stanley, Wines, Bennett, Murphy & Spanjers, P.A., Auburn-dale, for appellee.
   PER CURIAM.

Based upon the authority-of Health Applications Systems v. Hartford Life, 381 So.2d 294 (Fla. 1st DCA 1980), we affirm the trial court’s order granting the appel-lee’s motion to dismiss.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.


author: CAMPBELL, Judge.

text:
    TOWN OF BELLEAIR, Florida, Appellant, v. Bonnie L. TAYLOR, Appellee.
    No. 82-1236.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.

      Ted R. Manry, III, and Stephen H. Sears of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Edward D. Carlson of Woodworth, Carlson, Meissner & Webb, Clearwater, for ap-pellee.
   CAMPBELL, Judge.

On August 23, 1977, while riding her motorcycle down a street known as “The Mall,” Bonnie Taylor struck an automobile driven by Genevieve Joyner as it pulled out onto the street. The Mall has a median planted with grass and shrubbery that was built and is maintained by the Town of Belleair. Taylor sued the town alleging various theories of recovery, and the case finally went to trial over the issue of whether the median had been negligently designed and maintained.

At trial, appellant moved for directed verdict at the close of appellee’s case-in-chief and at the close of all the evidence. These motions were denied, and the jury found for appellee. Appellant moved to have the verdict set aside stating that the “subject shrubbery cannot be a legal cause of the subject accident....” The court denied this motion, and appellant then filed a timely notice of appeal.

It is true that traditionally there is no duty in Florida on the part of a landowner to affirmatively maintain his property in such a manner that a motorist’s view of intersecting traffic is unobstructed. Stevens v. Liberty Mutual Insurance Co., 415 So.2d 51 (Fla. 3d DCA 1982); Pedigo v. Smith, 395 So.2d 615 (Fla. 5th DCA 1981); Evans v. Southern Holding Corp., 391 So.2d 231 (Fla. 3d DCA), petition for review denied, 399 So.2d 1142 (Fla.1981). See 39 Am.Jur.2d Highways, Streets & Bridges § 462 (1968). This rule applies to both natural, Pedigo, and artificial conditions on the landowner’s property. Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980). These cases, however, are distinguishable since they concern the duties of*a private, not a government, landowner.

It is clear, especially since our supreme court’s, decision in City of St. Petersburg v. Collum, 419 So.2d 1082 (Fla.1982), that once a governmental entity creates a condition that it knows or should know is dangerous, it must avert the danger or notify the public. Failure to do so results in liability. Here, the town constructed and maintained the median and the foliage upon it, and that being so the town knew or should have known that failure to maintain it properly would create conditions dangerous to the public. Foley v. State Department of Transportation, 422 So.2d 978 (Fla. 1st DCA 1982). Whether the town discharged its responsibilities properly or improperly was for the jury to decide, and the trial court did not err in denying the town’s motion for directed verdict and in refusing to overturn the jury’s final verdict insofar as it relates to the town’s liability. See City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981).

During trial, the court admitted evidence of a prior accident that occurred four years earlier on the opposite side of the intersection where this accident occurred. Later, appellant called Chief Yaitanes, its police chief, as part of its case-in-chief. On direct, Yaitanes testified that he was the supervisor on duty at the time of the accident but that one of his officers actually investigated the accident. He also testified that he later conducted his own investigation of the accident scene.

This testimony on direct prompted cross-examination about the contents of the accident report prepared by the other officer. Over appellant’s objection, the court required Yaitanes to reveal that the report stated that the bushes on the Mall should be trimmed. The court should have sustained appellant’s objection on grounds of hearsay. Nevertheless, this testimony, standing alone, was not so prejudicial as to constitute reversible error. However, when coupled with the earlier testimony about the prior accident, it is clear that reversible error occurred. Because the prior accident occurred on the opposite side of the intersection and four years before the accident giving rise to this lawsuit, we believe that the prior accident was too remote to be legally relevant in the instant case. On retrial, the trial judge must make sure that any admission of the statements contained in the accident report to the effect that the bushes needed trimming must be supported by a proper predicate. There should be no evidence of the prior accident admitted at the new trial. Because we have concluded that a new trial is required, we also conclude that it is unnecessary to reach the final point raised by appellant.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIMES, A.C.J., and SCHOONOVER, J., concur.


text:
    John T. HUBERT, Jr., Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 82-1815.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.
    Robert J. Shapiro, Tampa, for appellant.
    Alan E. DeSerio and John H. Beck, Tallahassee, for appellee.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM.

This court previously denied a motion to dismiss the above-styled appeal without opinion. We deny rehearing but think that the issue raised merits this opinion.

The motion to dismiss this appeal alleged that the appeal was untimely because the notice was filed more than 30 days from the order appealed from. Although there was a timely motion for rehearing, appellee contended that the motion was not an authorized motion and, thus, did not toll the time for filing the appeal. See Rule 9.020(g), Fla.R.App.P. Appellee relies on the general rule that rehearings are not authorized as to interlocutory or nonfinal orders. Wagner v. Bieley, 263 So.2d 1 (Fla.1972).

The order involved in this case was a post-judgment order on attorneys’ fees and costs. More specifically, appellee alleges conflict with Craft v. Clarembeaux, 162 So.2d 325 (Fla. 2d DCA 1964). Craft held that a cost order after final judgment was reviewable by interlocutory appeal. However, in Clearwater Federal Savings and Loan Assoc, v. Sampson, 336 So.2d 78, 79 (Fla.1976), the Florida Supreme Court made the following distinction:

Post-decretal orders are not true interlocutory orders, and perhaps the term “interlocutory” is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post-decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment, and, therefore, a Petition for Rehearing could be properly directed to such a post-decretal order which constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment.

Additionally, eases more recent than Craft have squarely held that an attorneys’ fee order entered after final judgment is a final order sufficient to support a full appeal and subject to a motion for rehearing. Saul v. Basse, 399 So.2d 130 (Fla. 2d DCA 1981); State, Dept. of Citrus v. Griffin, 332 So.2d 54 (Fla. 2d DCA 1976); Kucera v. Kucera, 330 So.2d 36 (Fla. 4th DCA 1975). We see no logical distinction between attorneys’ fees and costs in this context and orders entered on either or both after final judgment are final orders. Therefore, the motion for rehearing is denied.

SCHEB, A.C.J., and GRIMES and CAMPBELL, JJ., concur.

      . We have not overlooked our recent decision in Potucek v. Smeja, 419 So.2d 1192 (Fla.2d DCA 1982). That case dealt with an order granting relief under Fla.R.Civ.P. 1.540. See, Fla.R.App.P. 9.130(a)(1) & (5).