author: HENDRY, Judge.

text:
    Barry L. COVIN, Appellant, v. Judith R. COVIN, a/k/a Judith Stone, Appellee.
    No. 80-987.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 30, 1981.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Hall & Hauser and Richard F. O’Brien, III, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

The husband appeals a post-judgment order directing that the former marital residence of the parties be sold.

A final judgment of dissolution was entered on September 19, 1975, granting the wife custody of the children and exclusive use of the marital home until the youngest child reached eighteen, or until the wife remarried or occupied the premises with a male adult. The trial court retained jurisdiction to determine the amount of attorney’s fees to be awarded to the wife’s attorney. Several years after the divorce, the wife filed a motion for permission to sell the house, stating as grounds therefor that extensive repairs were needed on the house and the potential danger to the children’s safety since the house was located on a canal. On July 13, 1979, the court ordered the parties to sell the house, and provided for the appointment of a special master in the event that the house was not sold within a certain time. When the husband refused to participate in the sale, he was cited for contempt and the matter referred to a master. The general master reported that the house had finally been sold and suggested that contempt proceedings were no longer viable. The trial court approved the master’s report and withheld contempt charges. Subsequently, the final order under review was entered on March 4, 1980, distributing the proceeds of the sale between the parties and directing the husband to pay the special master’s fee and sixty percent of the wife’s attorney’s fees. It is from this order that the husband has appealed.

Appellant challenges the court’s jurisdiction to direct a sale of the marital home, and further alleges that in light of the lack of jurisdiction the court abused its discretion in requiring him to pay the special master’s fee and attorney’s fees in the amount of $10,465.14.

The issue, then, is whether the court had the authority to enter a post-dissolution order partitioning the former marital home in the absence of a reservation of jurisdiction in the final judgment of dissolution. We find that it did not.

While the court is authorized by statute to modify the provisions of a final judgment of dissolution pertaining to the care, custody and maintenance of children of the marriage [§ 61.13, Florida Statutes (1977)] and to modify alimony provisions under certain circumstances [§ 61.14, Florida Statutes (1977)], there is no statutory authority for the court to retain jurisdiction to enter post-judgment orders determining the property rights of the parties. Sistrunk v. Sistrunk, 235 So.2d 53 (Fla. 4th DCA 1970). Generally, a court has no jurisdiction to modify property rights after an adjudication of those rights has been made in the judgment of dissolution. Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979); Pruitt v. Pruitt, 370 So.2d 813 (Fla. 3d DCA 1979).

Property rights not adjudicated on dissolution can be determined at a later time if jurisdiction to do so has been specifically retained, Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976). The court also retains jurisdiction to enforce any executory provisions contained in a final judgment of dissolution. Hoskin v. Hoskin, 349 So.2d 755 (Fla. 3d DCA 1977); Sapp v. Sapp, 275 So.2d 43 (Fla. 2d DCA 1973); cf. Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979) (general reservation of jurisdiction in dissolution order insufficient to preserve court’s jurisdiction to subsequently alter property rights where dissolution order is self-executing).

Sub judice, the trial court did not retain jurisdiction to make a later determination with respect to the marital residence since this matter was fully adjudicated in the final order, and the specific reservation of jurisdiction contained therein was for the sole purpose of awarding attorney’s fees. Additionally, the provision in the dissolution order pertaining to the marital home was self-executing, requiring no further judicial labor of the court.

When their marriage was dissolved, the parties became tenants in common of their real property, formerly held as an estate by the entireties, by virtue of Section 689.15 and Florida case law. Margolis v. Margolis, 343 So.2d 938 (Fla. 3d DCA 1977); Harder v. Harder, 264 So.2d 476 (Fla. 3d DCA 1972); Sistrunk v. Sistrunk, supra. To obtain partition of real property, a complaint requesting partition and containing the essential allegations and notice requirements of Section 64.041 is necessary. Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980); Muhlrad v. Muhlrad, 375 So.2d 24 (Fla. 3d DCA 1979); Wischman v. Wischman, 310 So.2d 428 (Fla.2d DCA 1975); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972). Here, appel-lee-wife’s motion requesting permission to sell the house did not conform to these requirements. Absent appropriate pleadings complying with Chapter 64, we find that the court below lacked authority to order the property to be sold. Appellee raises the issue of appellant’s seeming acquiescence to the sale since he did not actually contest the partition below. As appel-lee concedes, however, the parties cannot mutually confer jurisdiction on the court where none exists, and such defects may be raised for the first time on appeal. Groover v. Groover, 383 So.2d 280 (Fla. 5th DCA 1980); Hadley v. Hadley, 140 So.2d 326 (Fla. 3d DCA 1962).

Although we hold that the court below lacked authority to order the former marital home partitioned, we are nonetheless unable to provide appellant with a remedy since we have been presented with a fait accompli — the house has been sold and the proceeds therefrom distributed. Appellant, moreover, has not complained about the division of the proceeds nor requested any express relief in this regard. Under the circumstances, we have no choice but to affirm the portion of the final order granting partition. However, since the fee awarded to the wife’s attorney was based in part on the time expended seeking partition of the home, we reverse and remand for a reduction in said fee. The special master’s fee which was charged to the appellant must also be reversed with directions to assess this charge against the wife.

That portion of the final order under review directing partition of the former marital residence is affirmed; the portion of the order directing the appellant to pay the master’s fee is reversed and the order amended to require the wife to pay this fee. The fee awarded to the wife’s attorney shall be reduced to reflect only those services relating to matters other than partition of the home.

Affirmed in part; reversed in part, and remanded.

      . Without attacking the sale of the house per se, appellant protested an initial order by the trial court which would have given the wife all the proceeds from the sale contrary to the terms of the final judgment of dissolution. That order was vacated by the court and the proceeds ultimately split between the parties.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Edward KLEINSCHMIDT, Appellant, v. SUN BANK OF MIAMI, Personal Representative of the Estate of Eleonora B. Kleinschmidt, Deceased, Appellee.
    No. 80-1173.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Sept. 30, 1981.
    William Edward Kleinschmidt, in pro. per.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and R. Owen Ricker, Jr., Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. In Re Perlman’s Estate, 381 So.2d 248 (Fla. 4th DCA 1979); Radiation, Inc. v. Campbell, 200 So.2d 192 (Fla. 4th DCA 1967); Staley v. Jackson, 154 So.2d 349 (Fla.2d DCA 1963); Ross v. Florida Sun Life Insurance Company, 124 So.2d 892 (Fla.2d DCA 1960); Cooey v. Cooey, 132 Fla. 716, 182 So. 202 (1938); Section 733.-702, Florida Statutes (1975).


author: HURLEY, Judge.

text:
    SOUTH PUERTO RICO SUGAR COMPANY and Aetna Casualty & Surety Co., Appellants, v. TEM-COLE, INC., Talisman Sugar Corporation and Home Insurance Company, Appellees.
    No. 78-1308.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Edna L. Caruso and Schuler & Wilkerson, West Palm Beach, for appellants.
    Don Beverly of Beverly & Freeman, West Palm Beach, for appellee-Tem-Cole, Inc.
    Majorie D. Gadarian of Jones & Foster, West Palm Beach, for appellees-Talisman Sugar Corporation and Home Insurance Company.
   HURLEY, Judge.

This appeal results from a jury verdict finding that defendant/appellant South Puerto Rico Sugar Company negligently sprayed a herbicide known as “2,4-D” on plaintiff/appellee Tern-Cole, Inc.’s radish crop thereby causing $375,000 in damages. Our review of the record leads us to conclude that the verdict is based upon substantial competent evidence and that appellant has failed to demonstrate reversible error. Thus, we affirm.

One procedural aspect of the case, however, merits discussion and requires a brief factual sketch. Tern-Cole brought suit against two principal defendants, South Puerto Rico Sugar Company and Talisman Sugar Corporation, and their insurers. The complaint alleged that a portion of Tern-Cole’s radish crop had been destroyed by the defendants’ negligent spraying of 2,4-D. Defendants apparently viewed this as an “either or” allegation, for neither defendant filed a cross-claim against the other for contribution. Thus the case proceeded to trial.

At the conclusion of the plaintiff’s case, both defendants moved for directed verdicts. Each defendant limited its argument to an analysis of the deficiencies in the evidence introduced against it Then, in the course of responding to both motions, Tern-Cole’s counsel made the following statement:

To be very frank about it in my mind at this point based on the record I have got to conclude that the 2,4-D damage came from across the road, came from the . . . [South Puerto Rico Sugar Company] property.
Neither I nor my client have any desire to hold the Defendant in just because we might have some slight reason for doing so if we don’t feel that they are generally responsible. That is really all I can say.

The trial judge invited further argument from South Puerto Rico’s attorney. After an initial reference to a deposition which had not been introduced into evidence, counsel confined his comments to the evidence adduced against his client. At no point did South Puerto Rico’s counsel voice an objection to the granting of Talisman’s motion for a directed verdict, or inform the court how his client’s interest would be prejudiced if the motion were granted. At the conclusion of all of the argument, the trial court granted Talisman’s motion and entered a directed verdict in its favor. The trial proceeded with South Puerto Rico as the principal defendant and resulted in a plaintiff’s verdict of $375,000.00.

Now for the first time on appeal, South Puerto Rico questions the propriety of the trial court’s decision to grant a directed verdict in favor of the co-defendant, Talisman Sugar Corporation. It urges that the ruling was incorrect and, relying upon Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), it claims a right to assert the error on appeal. The flaw in this argument is that appellant failed to register an objection in the trial court. Thus, it cannot raise the error on appeal.

The Supreme Court in Pensacola Interstate Fair, Inc. v. Popovich, supra, ratified the First District Court of Appeal’s decision in Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), and held that the right of one co-defendant to appeal a judgment which exonerates another co-defendant is mandated by Florida’s Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1979). We applied this rule to the case at bar in denying South Puerto Rico’s motion to dismiss. See South Puerto Rico Sugar Co. v. Tem-Cole, Inc., 370 So.2d 1170 (Fla. 4th DCA 1979). Yet none of these cases speak to the question of what procedural requirements must be satisfied in order to appeal a judgment exonerating a co-defendant. Our analysis impels us to hold that appellant is subject to the general rule which precludes a party from complaining on appeal of errors which were not raised or objected to in the trial court. “One of the firmest principles of appellate procedure is that in order to hold a trial court in error, that trial court must have had an opportunity to rule upon the question presented to the appellate court for review.” Paul v. Ranter, 155 So.2d 402, 403 (Fla. 3d DCA 1963). Accord, Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); Walker v. Hampton, 235 So.2d 325 (Fla. 1st DCA 1970); Florida Livestock Board v. Hygrade Food Products Corp., 141 So.2d 6 (Fla. 1st DCA 1962).

The foregoing rule is “founded on considerations of practical necessity and fairness to the trial court and the opposite party.” 3 Fla.Jur.2d Appellate Review § 92 (1978). Bearing this in mind, we believe that the case at bar graphically demonstrates the necessity for strict compliance. Plaintiff’s counsel virtually conceded the correctness of Talisman’s motion. Nonetheless, counsel for South Puerto Rico failed to object or to state how his client’s interests might be adversely affected. Faced with a concession by one party and silence by another, the trial court granted the motion. To allow South Puerto Rico to change its stance at this point in the proceedings would not only be unfair and at odds with basic principles of appellate review, but would put a premium on tactics aimed at lulling a trial court into error. This we cannot permit. Thus, we hold that appellant is precluded from contesting Talisman’s directed verdict and the judgment entered thereon because of its failure to object below.

Accordingly, the judgment is

AFFIRMED.

ANSTEAD, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . Sometime in 1968, Gulf & Western Corp. acquired South Puerto Rico Sugar Co. The two corporate names were used intérchangeably throughout the trial and on appeal. However, for the sake of clarity and consistency we refer to appellant by its former name.


author: PER CURIAM. HURLEY, Judge,

text:
    STATE of Florida ex rel., Roger C. SLORA, Petitioner, v. John D. WESSEL, as Circuit Judge of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent.
    No. 81-1386.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Aug. 21, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Edna L. Caruso, West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. Motion for rehearing, if any, must be filed by noon, Friday, August 21, 1981.

LETTS, C. J., and HERSEY, J., concur.

HURLEY, Judge,

concurring specially.

I concur with the court’s determination because, in my view, the petitioner has failed to demonstrate that the trial judge is a “material witness,” i. e., that he possesses relevant information “going to some fact affecting the merits of the cause . . . about which no other witness might testify.” Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934) (emphasis supplied). Rule 8.220(b)(1)(viii), Fla.R.Crim.P., provides a mechanism by which the state may obtain a handwriting exemplar from the defendant. Thus, through the use of expert testimony, there exists an alternate but well-recognized method for establishing the authorship and integrity of the document in question without requiring testimony from the trial judge.


text:
    D. Syvelle PORTER, Individually and as Personal Representative of the Estate of Sheila U. Porter, Deceased, Appellants, v. SUNSHINE JUNIOR STORES, INC., a Florida Corporation, and Edward Harrington, Appellees.
    No. ZZ-394.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Rehearing Denied Oct. 2, 1981.
    Roy L. Glass, Tallahassee, for appellants.
    Thomas J. Maida of McConnaughhay & Roland, Tallahassee, for appellees.
   PER CURIAM.

AFFIRMED. See Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978).

McCORD and SHIVERS, JJ., and MASON, ERNEST E. (Retired), Associate Judge, concur.


author: SHAW, Judge. WENTWORTH, Judge, THOMPSON, Judge,

text:
    METHODIST HOSPITAL FOUNDATION, INC.; Florida Physicians’ Insurance Reciprocal and Gary Dopson, Appellants, v. Elysabeth D. IRVIN, et vir., Appellees.
    No. ZZ-433.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Rehearing Denied Oct. 2, 1981.

      Bruce S. Bullock and Glenn E. Cohen of Bullock, Sharp, Childs, Mickler & Cohen, P. A., Jacksonville, for Methodist Hospital Foundation, Inc., appellant.
    H. Franklin Perritt, Jr. of Marks, Gray, Conroy & Gibbs, P. A., Jacksonville, for Florida Physicians’ Ins. Reciprocal, and Gary Dopson, appellants.
    Wayne Hogan of Brown, Terrell & Hogan, Jacksonville, for appellees.
   SHAW, Judge.

The appellees, Elysabeth D. Irvin and Earl 0. Irvin, instituted suit in Duval County, Florida against the appellants for acts of medical malpractice which allegedly occurred at the Ed Fraser Memorial Hospital, a public hospital located in Baker County, Florida and operated by Methodist Hospital Foundation, Inc. (Methodist), by virtue of a management contract between Methodist and the Baker County Hospital Authority.

Methodist, upon its assertion of inconvenience, moved for a change of venue to Baker County pursuant to Section 47.122, Florida Statutes (1979), and argues that while the statute is discretionary, in this instance the judge abused his discretion. In support of its position, Methodist points out that the alleged negligence occurred in Baker County; all professional contact between the Ed Fraser Memorial Hospital and the appellee took place in Baker County; Dr. Dopson resides and practices in Baker County; the nurses involved in the hospital care of the appellee Elysabeth Irvin reside or work in Baker County, and to compel their attendance at trial in Duval County would inflict great hardship upon the patients of the Ed Fraser Memorial Hospital, severely handicapping the Baker County Hospital Authority in the provision of medical services during the trial of the cause. Affidavits from the supervisor of nursing at the Ed Fraser Memorial Hospital, the administrator of the hospital, and Dr. Dopson attest to the hardships and inconvenience that a trial in Du-val County would occasion. Counterbalanced against the appellants’ affidavits are their answers to interrogatories which show that Mrs. Irvin’s leg was amputated in Gainesville, Florida, that certain laboratory studies were performed in Jacksonville at Methodist Hospital, and that the administrator of the Ed Fraser Hospital during the time that Mrs. Irvin was hospitalized now works in Jacksonville, Florida as does the administrator of Methodist. We take judicial notice of the fact that Baker County is adjacent to Duval County and we are disinclined, under the circumstances, to hold that the denial of the motion for change of venue was an abuse of discretion.

Appellant Dopson argues that as an individual defendant residing in Baker County he is entitled to be sued in that county and the privilege cannot be defeated by the fact that his corporate co-defendant enjoys residency in Duval County. We disagree. Section 47.021, Florida Statutes (1979), makes it quite clear that in Florida actions against two or more defendants residing in different counties may normally be brought in any county in which any defendant resides. For purposes of this section, a domestic corporation resides in the county where such corporation has or usually keeps an office for the transaction of its customary business. A foreign corporation doing business in this state resides in the county where such company has an agent or other representative. Section 47.051, Florida Statutes (1979); Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). Methodist reminds us that where defendants enjoy mutual residence within one county, Section 47.021 does not apply even though one of the defendants may also reside in another county. Commercial Carrier Corp. v. Mercer, 226 So.2d 270 (Fla. 3d DCA 1969). It is this mutuality of residence that distinguishes Mercer from the instant case. In the case before us there is no assertion that Methodist is a resident of Baker County or maintains an office in Baker County for the transaction of its customary business. Where there is a request for change of venue, the burden is upon the movant to establish its entitlement to a change. Birdsall Shipping, S. A. v. Gallardo, 390 So.2d 437 (Fla. 3d DCA 1980). We conclude that the appellants Gary Dopson and Methodist Hospital reside in different counties and therefore the plaintiffs’/appellees’ choice of forum controls. The phrase “forum shopping” is simply inappropriate under such circumstances. Houchins v. Florida East Coast Railway Co., 388 So.2d 1287 (Fla. 3d DCA 1980).

The order denying change of venue is accordingly affirmed.

WENTWORTH, J., concurring, with opinion.

THOMPSON, J., dissenting, with opinion.

WENTWORTH, Judge,

concurring.

I concur in the majority opinion. As the opinion notes, no record documents or evidence establishes or asserts that Methodist is a resident of Baker County by maintaining an office for the transaction of its customary business, as distinguished from merely furnishing employees in its subcontractor relationship with the Baker County Hospital Authority. And the change of venue was sought upon an allegation of inconvenience pursuant to § 47.122, Florida Statutes, rather than a joint residence allegation pursuant to § 47.011, Florida Statutes, and Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). The present case is thus unlike Inter-Medic Health Centers v. Murphy, 400 So.2d 206 (Fla. 1st DCA, 1981), and, as the majority opinion indicates, the judge did not err in denying the request for a change of venue.

THOMPSON, Judge,

dissenting.

I would reverse and remand with directions to transfer venue.

The cause of action accrued in Baker County. The plaintiffs are residents of Baker County. The defendant, Dr. Gary Dopson, is a resident of Baker County. The Ed Fraser Memorial Hospital is located in Baker County and is owned and operated by the Baker County Hospital Authority. The defendant Methodist Hospital Foundation, Inc. (“Methodist”) is a non-profit domestic corporation having offices in both Duval County and Baker County for the customary transaction of its business.

Methodist contends it is entitled to a change of venue to Baker County under the provisions of § 47.122, Fla.Stat. for the convenience of the parties and filed several affidavits in support thereof. The trial judge’s denial of the motion based on § 47.122, Fla.Stat., was not such an abuse of discretion that would warrant reversal on appeal.

Dr. Dopson timely moved for a change of venue on the grounds that he was entitled to be sued in the county of his residence under § 47.011, Fla.Stat. The plaintiffs claims that § 47.021, Fla.Stat., gives them the right to bring the action in any county in which any defendant resides. Although § 47.021, Fla.Stat., provides that where there are multiple defendants residing in different counties the action may be brought in any county in which any defendant resides, that provision is not applicable in this case.

Under § 47.051, Fla.Stat., Methodist resides in both Baker and Duval Counties by virtue of the fact that it “has, or usually keeps, an office for transaction of its customary business” in both of these counties. Notwithstanding the fact that the corporate defendant resides in the county in which the suit is filed, if the corporate defendant also resides in the same county as the individual defendant and the individual defendant moves for a change of venue pursuant to § 47.011, Fla.Stat., venue lies only in the county where the individual defendant resides and the motion should be granted. Enfinger v. Baxley, 96 So.2d 538 (Fla.1957).

This rule enunciated by the Supreme Court in Enfinger, supra, has been followed by this Court in Inter-Medic Health Centers, Inc. v. Murphy, 400 So.2d 206 (Fla. 1st DCA 1981), the Second District Court of Appeal in Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (Fla. 2d DCA 1969), the Third District Court of Appeal in Allen v. Summers, 273 So.2d 13 (Fla. 3d DCA 1973), and the Fourth District Court of Appeal in Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975). The majority opinion finds that these cases are not applicable because there was no mutuality of residence of Dopson and Methodist in Baker County and that there was no assertion that Methodist is a resident of Baker County or maintains an office in Baker County for the transaction of its customary business. I disagree with that finding. A domestic corporation is a resident of every county in this state in which it has, or usually keeps, an office for the transaction of its customary business. Methodist had an “office” in Baker County for the transaction of its customary business. Methodist was in the business of hospital management and operation. It had a long-term contract with the Baker County Hospital Authority to furnish certain management services on a regular daily basis, including the services of a full-time resident administrator for the sum of $5,000 per month initially and later for $6,000 per month. In the case of Tribune Company v. Approved Personnel, Inc., 115 So.2d 170 (Fla. 1st DCA 1959), this Court said:

To strain the definition of an “office for the transaction of business” to embrace only separate rooms or buildings would do violence to the fair meaning and intent of the statute. Space in a building which is furnished with the type of office furniture and equipment normally used in the transaction of the occupant’s customary business has been held to satisfy the definition of “office” as used in statutes dealing with service of process. The same is equally applicable to statutes dealing with the matter of venue. It has been early recognized that the expression “an office for the regular transaction of business” does not necessarily mean one who carries on some business at some particular place of which he is a proprietor. The place where one is regularly employed to render services, where he attends every business day, is a place or office for the regular transaction of business, regardless of the character of the business which one may transact at that place.

Methodist has unquestionably satisfied this definition of “office” as used in the statutes dealing with venue.

There is a sufficient assertion in the complaint that Methodist maintains an office in Baker County for the transaction of its customary business. Although the plaintiff attempts to allege that Methodist managed the hospital from Jacksonville, that is contradicted by further allegations in the complaint that Methodist supervised nurses and “hired, trained and supervised other personnel and workers at Ed Fraser Memorial Hospital” (emphasis supplied). The plaintiff also attached to and made a part of the complaint, the management contract between Methodist and the Baker County Hospital Authority. This contract sets forth the obligation of Methodist to furnish management services at the hospital including a full-time resident administrator.

As this Court said in Inter-Medic Health Centers, Inc. v. Murphy, supra :

Dr. Shelley did file a timely objection, by way of motion to dismiss and transfer venue, citing § 47.011 and alleging St. Johns County as his only residence and the appropriate place of venue. Although Dr. Shelley did not specifically allege that Inter-Medic also resides in St. Johns County, this fact was alleged in both the complaint and Inter-Medic’s answer. We conclude that in these circumstances Dr. Shelley’s venue objection was sufficiently pleaded. (Emphasis supplied)

The change of venue motion filed by Dr. Dopson should have been granted.

      . Change of venue; convenience of parties or witnesses or in the interest of justice. — For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.

      . Actions against defendants residing in different counties. — Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.


author: BOARDMAN, Acting Chief Judge. GRIMES, Judge,

text:
    COUNTY OF SARASOTA, Petitioner, v. Leolus L. WALL, Respondent.
    No. 81-705.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1981.
    Robert C. Widman of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for petitioner.
    J. W. Cullis of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for respondent.
   BOARDMAN, Acting Chief Judge.

Sarasota County filed a petition for writ of common law certiorari seeking review of the trial court’s orders denying petitioner’s motion to dismiss respondent Leolus L. Wall’s complaints against it. Concluding that the issue before us is properly reviewable by certiorari, we grant the petition for writ of certiorari.

Respondent filed a civil action for damages against petitioner and other defendants, alleging the wrongful death of his wife and bodily injury and property damage to himself. Petitioner moved to dismiss the complaint, one ground being that under Metropolitan Dade County v. Hicks, 323 So.2d 590 (Fla. 3d DCA 1975), a cause of action accruing to a plaintiff individually cannot be joined with one accruing to a plaintiff in a representative capacity although they arise out of the same occurrence because the respective causes of action are not “in the same right.” The trial court dismissed the complaint and respondent then filed two amended complaints, one seeking recovery in his representative capacity for the wrongful death, the other seeking recovery in his individual capacity for his own physical injuries and property damage. However, he filed the two separate causes of action using the same case number and did not obtain new service of process for either amended complaint. In response, petitioner filed motions to dismiss the amended complaints, contending that respondent’s procedure was highly irregular and improper, not being in accordance with Florida Rule of Civil Procedure 1.110(g). The trial court agreed that respondent’s method was unusual, but stated that it liked this novel approach and denied the motions to dismiss after hearing. This petition for writ of certiorari followed timely.

Respondent filed both amended complaints under the same case number because his counsel did not deem it necessary to acquire new service of process when he had already obtained proper service upon petitioner. While this logic is not unreasonable, our supreme court held in Pensacola Electric Co. v. Soderlind, 60 Fla. 164, 53 So. 722 (1910), that the proper procedure in a case such as this is for the plaintiff to elect which of the improperly joined claims he wishes to proceed on in the original suit.

In Soderlind, the case had proceeded to final judgment prior to the taking of the appeal. Here, however, only the plaintiff’s initial pleadings have been filed. Under these circumstances, since the four-year statute of limitations on the personal injury claim will not expire until September 13, 1981, we know of nothing that would preclude respondent from electing to proceed on the wrongful death claim in this suit and filing a separate suit (and obtaining new service of process) as to the personal injury claim. See General Dynamics Corp. v. Hewitt, 225 So.2d 561 (Fla. 3d DCA 1969).

One additional collateral point merits discussion. Section 768.28(6), Florida Statutes (1979) requires that a claimant present any claim against the state or one of its agencies or subdivisions in writing to the appropriate agency within three years after the claim accrued before the claimant may institute an action on the claim. The complaint and each of the amended complaints filed in the trial court alleged compliance with this notice requirement. However, the parties are in disagreement as to whether a new written claim would be necessary should petitioner prevail on appellate review. We think not. While case law has established that court proceedings on separate claims must be separate, we see no reason to require separate notices of claim to the same state agency as long as the fact that more than one claim is being made is apparent on the face of the notice and the agency is not prejudiced. Consequently, respondent may be able to pursue both claims in issue here, depending on the form and clarity of the notice of claim he previously presented, assuming he did in fact present such notice.

Accordingly, the writ of common law cer-tiorari is granted and the cause remanded with directions to dismiss the amended complaint filed in respondent’s individual capacity and for further proceedings consistent with this opinion.

In view of the fact that the statute of limitations will expire shortly, the time for filing a motion for rehearing is limited to five days and the time for filing a response to three days.

RYDER, J., concurs.

GRIMES, J., concurs specially with opinion.

GRIMES, Judge,

concurring specially.

I concur with the foregoing opinion except that I believe that any reference to the notice requirements of section 768.28(6), Florida Statutes (1979), is premature because that issue is not now before us.

      . Petitioner also filed an interlocutory appeal, Case No. 81-702, which is being dismissed by separate order in view of our conclusion that the issues raised are properly reviewable by certiorari.

      . He subsequently filed a second amended complaint in the personal injury action; the changes made are immaterial to the issue before us.

      . There is no dispute that proper service of process was had upon the named defendants on the original complaint.


author: ANSTEAD, Judge.

text:
    COUNTY NATIONAL BANK OF NORTH MIAMI BEACH, Appellant, v. SHERIDAN, INC., a Foreign Corporation, and William H. Blacker, Appellee.
    No. 80-1690.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Craig D. Savage of Mamber, Epstein & Savage, North Miami Beach, for appellant.
    Stephen J. McDonald of Hodges, Gossett, McDonald & Gossett, P.A., Hollywood, for appellee Sheridan, Inc.
   ANSTEAD, Judge.

This is an appeal from an order denying appellant’s motion to vacate a final judgment entered upon a default. At issue is whether the default should have been set aside.

The facts are not in dispute. In 1977, Sheridan, Inc. obtained a final summary judgment against William H. Blacker in the amount of $2,873.36. On May 6, 1980, Sheridan filed a motion for the issuance of a writ of garnishment after judgment, seeking to levy upon funds maintained by Blacker in a bank account at County National Bank of North Miami Beach. The writ issued and was served on the Bank on May 15, 1980; however, the Bank failed to appear of serve an answer. A default was entered against the Bank on June 10, 1980 and a final judgment in garnishment was entered on June 18, 1980 in the full amount of the Blacker judgment, $2,873.76.

The Bank received a copy of the judgment on June 23, 1980, and on June 30, 1980, served a sworn motion to set aside the final judgment in garnishment along with supporting affidavits and exhibits, and an answer. The motion and answer averred that the Bank had a meritorious defense to the writ with regard to any funds in excess of $274.09, since that was the balance in Blacker’s account at the time the writ of garnishment was served, and further alleged that its failure to respond to the writ was caused by mistake and excusable neglect. The affidavits and exhibits attached to the motion revealed that the Bank, after receiving service on May 15th, immediately transferred Mr. Blacker’s funds in the amount of $274.09 then on hand into a garnishment escrow fund and notified the office of the Bank’s attorney of the proceedings the next day. On May 19th or 20th, the secretary of 20 years to the Bank’s attorney picked up the writ shortly before lunch and temporarily placed it into an unlabeled file until she could prepare a new file upon her return from lunch. However, during lunch the secretary became ill; her illness prevented her from returning to work until May 27th, when she became involved in preparing for a complicated real estate closing and forgot to open a file and calendar the garnishment papers. The Bank’s attorney did not actually learn of the writ until June 23,1980, when a copy of the final judgment was received.

We must first observe that we believe the case law on the subject of vacating default judgments appears to be in a state of hopeless confusion. In the first instance trial courts are advised that they should follow a policy of liberality in exercising their discretion to vacate default judgments. On the other hand appellate courts are advised that they must find a gross abuse of discretion by the trial court before disturbing its ruling on a motion to vacate. Both of these principles are set out in the case of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), the case most frequently cited in subsequent appellate opinions on this subject. Most appellate courts are naturally reluctant to announce that a trial court has “grossly” abused its discretion even though it may be clear that the trial court did not apply a policy of “liberality” in considering the motion to vacate. Hence, there is a great deal of straining apparent in appellate opinions holding that the trial court erred in refusing to set aside a default. Our views are not unlike those expressed by Judge Ott in the case of Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977) although we are not as certain as he that the seemingly competing concepts of “liberality” and “gross abuse of discretion” are always consistent with sound decision making in this area.

Initially, we must review the trial court’s action to determine if the appropriate standard for determining motions to vacate default judgments was followed. In Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975), we held that a defendant is entitled to relief from a default if he can demonstrate that his neglect to respond was excusable and that he had a meritorious defense:

It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense. . . . However, the absence of either of these elements will defeat an attempt to set aside a default.

At 871.

Later cases suggest a third element should be considered, that of due diligence on the part of the defendant in seeking relief upon learning of the default. Garcia Insurance Agency, Inc. v. Diaz, supra.

It is undisputed here that the Bank has a meritorious defense since it has established by sworn affidavit that the judgment debt- or Blacker had only $274.09 in the bank at the time the writ of garnishment was served, whereas the amount sought to be collected and for which a garnishment judgment was entered was $2,873.76.

The issue of mistake or excusable neglect is not as easy. It is undisputed that the mistake and neglect was principally that of the secretary for the Bank’s attorney. She failed to set up a file and calendar the garnishment proceedings for a proper response. Her excuse was that she was ill. That too is undisputed. Under all the circumstances presented we believe the Bank’s neglect in failing to respond was excusable. In Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977), we held that an attorney’s failure to appear at a hearing because of an error on his calendar constituted excusable neglect. In other cases, clerical or secretarial error has also been held to constitute excusable neglect. Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); North Shore Hospital, Inc. v. Barber, supra; Stevens-Davis Co. v. Stock, 141 Fla. 714, 193 So. 745 (1940); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977). Of course, each of these cases turn upon its own complete set of facts, but we believe they adequately demonstrate the point that an unintentional mistake such as the one involved herein may be excused where no substantial prejudice to the plaintiff has resulted. As to prejudice, we note that upon receipt of the garnishment writ, the Bank immediately set aside the funds in the judgment debtor’s account, and those funds remained available for collection throughout the proceedings below. In addition, there is no indication that the plaintiff lost any opportunity to collect its judgment against the debtor because of the delay caused by the Bank’s mistake in failing to timely respond to the garnishment writ.

As to due diligence in responding once the mistake was discovered, the record reflects that the Bank was served with the default judgment on June 23, 1980, and on June 30, 1980, a verified motion to set aside the judgment was filed along with detailed affidavits and exhibits setting out completely the events that led up to the entry of default. Had the Bank timely responded to the garnishment writ initially, the plaintiff would no doubt have been entitled to a judgment on the pleadings or summary judgment in the sum of $274.09 on or about June 5, 1980. In all likelihood, it would have taken some further time to actually secure such a judgment by a motion and hearing thereon. As it was, the Bank served its motion to vacate the default on June 30, 1980. It is clear that there was no substantial delay in the prosecution of the garnishment proceedings or attendant prejudice to the plaintiff. Under the circumstances we believe the appellant has demonstrated due diligence. Garcia Insurance Agency, Inc. v. Diaz, supra. Of course, the plaintiff may be deprived of recovering the entire judgment from this garnishee, who didn’t have funds of the debtor’s on hand in the first place to cover the entire judgment. But, we do not believe that is the kind of prejudice that the plaintiff may show as a bar to the default being set aside. Otherwise, virtually no defaults would be subject to judicial excision since such is the initial result of vacating a default judgment in every case.

Finally, we would like to reaffirm the policy of the courts of this state to liberally set aside defaults under the standards set out by the Supreme Court in North Shore Hospital, Inc. v. Barber, supra, wherein that court observed toward the end of its opinion:

In the Waterson case, the defendant had moved to set aside a default decree entered against him, asserting by affidavit that he had placed the complaint in the hands of his attorneys, who, for reasons unknown to him, never filed an answer. The Circuit Court denied the motion and this court reversed, holding that the defendant was not guilty of culpable negligence. In a headnote by the court, the following rule was laid down:
“Whether a default should be opened, must depend on all the facts and circumstances connected with the case. If the party be guilty of gross negligence, the default will not be opened.” (Emphasis supplied.)
The court also stated that “ * * * it is the tendency of the courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.” Those lines were penned in 1853. When they are compared with the decision of the District Court herein, it gives cause to wonder how much progress we have made in the last hundred years toward liberalizing rules of procedure so as to achieve substantial justice.

At 853 to 854.

In short, we believe the main lesson to be learned from the Barber decision is that the rules of procedure should be construed liberally, at least in regard to vacating defaults, to achieve substantial justice in the case.

Accordingly, having concluded that the trial court erred in failing to grant the motion to set aside the default judgment, we reverse and remand this cause for further proceedings consistent herewith.

HERSEY and HURLEY, JJ., concur.

      . Unlike the defaulted parties involved in two other recently decided cases out of this court. See Kar Kare Owners Group of Florida v. Chason, 356 So.2d 851 (Fla. 4th DCA 1978) and Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978).


author: PER CURIAM. LETTS, Chief Justice,

text:
    Joan L. CUNDY, Appellant, v. Thomas Carroll CUNDY, Appellee.
    No. 78-1706.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 30, 1981.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

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

ANSTEAD and HURLEY, JJ., concur.

LETTS, C. J., dissents with opinion.

LETTS, Chief Justice,

dissenting.

I dissent.

It is precisely because of the Canakaris decision that I think the Supreme Court would find error here.

This long time marriage with three children, involves a wife and mother who is most unwell and cannot go out and make a decent living. Their standard of living during the marriage was lavish and the wife is now in very reduced circumstances under the terms of the periodic award, not remotely comparable to the style she enjoyed during the marriage.

The husband argues that their style of living was too lavish and that they lived beyond their means, but the record adequately reflects a continuation by him of the same old excessive standard since the separation. His continued expenditures include a Mercedes Benz car for his new paramour, an apartment at the Jockey Club and a house and car for his mother, to name but a few examples.

Perhaps the husband is overspending his income, but the record reflects a very significant accumulation of wealth during the marriage which would justify a lump sum award under Canakaris, especially since there are indications of him overspending his income which may well make him give unreliable response to a periodic award. I recognize that a wife does not normally obtain a special equity in a martial home held as a tenancy by the entirety. See Duncan v. Duncan, 379 So.2d 949 (Fla.1980). However, a $200,000 mortgage was placed on this one, signed by the wife, to provide the funds used to further the husband’s financial maneuverings which have made him a rich man and which have reduced the equity in the home place.

As I see it, such conduct as I have outlined by way of a few examples, clearly would mandate the trial judge to award either a lump sum award or a special equity in view of the relatively low periodic award in this case. In this regard, the majority has cited Canakaris backwards. At the time of the trial of this cause neither Canakaris nor Duncan had been decided. Accordingly under the old line of decisions controlling at the trial, the trier of the fact had practically no discretion to grant lump sum alimony and only very limited special equity powers. As I see it Canakaris calls not for an affirmance, but for a reversal.

This wife has been reduced from prosperity to misfortune while the husband continues unabated to satisfy his appetite for the very best in life. I would reverse.


text:
    John A. RUSLING, III, Appellant, v. R. C. A. SERVICE COMPANY, a Division of R. C. A. Corp., a foreign corporation, Appellee.
    No. 79-1283.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 28, 1981.
    H. Bryant Sims of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.

      Alan Douglas Greene, Coconut Grove, for appellee.
   PER CURIAM.

Appellant contests the trial court’s order granting appellee’s motion for summary judgment. We affirm.

Appellant initiated this action for breach of employment contract. In his complaint he alleged that the parties had entered into a written employment agreement on September 29,1977, whereby he was hired commencing on that date as an engineer for appellee and that three days later appellant was discharged. Pursuant to the agreement, a copy of which was attached to and incorporated by reference in the pleading, appellant further averred that appellee agreed to pay him $19,500 annually, payable at the rate of $750 every two weeks. Appellant claimed damages based on his discharge without cause.

The employment contract provided in pertinent part:

This offer and your compensation is based upon the terms of RCA’s current contract with the U. S. Navy. Accordingly, RCA reserves the right to make such adjustments in employment policies, conditions and compensation as necessary in order to perform under contract with the U. S. Navy. This assignment is not to be construed as a guarantee of employment for any specific period of time or specific type of work. All assignments and continued employment will depend upon your satisfactory performance and the Company’s determination of the need for your services.

We believe the clear language of the contract is susceptible to but one conclusion— that the contract was terminable at will by either party. Wynne v. Ludman Corp., 79 So.2d 690 (Fla.1955); Savannah, F. & W. Ry. v. Willet, 43 Fla. 311, 31 So. 246 (1901). See also Knudsen v. Green, 116 Fla. 47, 156 So. 240 (1934). Therefore, summary judgment was properly awarded. Wynne, supra.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.

MOORE, J., concurs in conclusion only.


author: MOORE, Judge.

text:
    Keith C. STEVENS, Jr. and Ruth Stevens, his wife, Appellants, v. LEN-HAL REALTY, INC., a Florida Corporation, Appellee.
    No. 80-1175.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Oct. 5, 1981.

      Sam Costa, Jr. of Sam Costa, Jr., P.A., Pompano Beach, for appellants.
    Monroe Gelb of Gelb & Spatz, Miami, for appellee.
   MOORE, Judge.

This is an appeal from a final summary judgment entered in an action to foreclose a mortgage on real estate. In entering the final summary judgment, the trial court relied upon the doctrine of res judicata. The issue before us is whether the doctrine of res judicata precludes relitigation of issues raised in affirmative defenses and a counterclaim when the same issues had been litigated in a prior proceeding. We affirm in part and reverse in part.

The appellants were the purchasers of a portion of property on which was constructed a motel. They executed a purchase money mortgage in favor of the appellee. The appellants intended to operate the motel in conjunction with a restaurant and marina which was to be constructed on the remaining portion of the real estate and which was to be operated by the appellee. In a previous suit, the appellee sought declaratory relief to determine the various rights of the parties regarding the subject property and an injunction from certain alleged wrongful activities of the appellants. The appellants counterclaimed in that suit, seeking to enjoin the appellee from certain alleged wrongful conduct. In the previous suit, the trial court entered a final judgment enjoining both parties from physically or emotionally harassing each other. No appeal was taken from that final judgment. In the mortgage foreclosure action before us, the appellants filed affirmative defenses and a counterclaim alleging the same wrongful conduct as they alleged in the prior suit.

The doctrine of res judicata applies when there exists: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the actions, and (4) identity of the quality or capacity of the person for or against whom the claim is made. If these four elements exist, the doctrine of res judicata acts to bar absolutely a subsequent suit on the same cause of action. Seaboard Coast Line Railroad v. Industrial Contracting Company, 260 So.2d 860 (Fla. 4th DCA 1972). The counterclaim in the present case asserts the same cause of action for injunc-tive relief as in the prior case. The four identities for res judicata are present. Therefore, the adjudication in the prior case constitutes an absolute bar to appellants’ counterclaim here.

On the other hand, the prior case did not resolve the issues raised by appellants’ affirmative defenses to the mortgage foreclosure. The appellants alleged that the ap-pellee interfered with their business by harassing their customers and destroying their property so as to inhibit their ability to make the mortgage payments. Res judica-ta does not apply because the prior case was not a foreclosure action.

Furthermore, the doctrine of es-toppel by judgment does not apply. This doctrine applies when the two causes of action are different, in which case the judgment in the first suit estops the parties from litigating in the second suit issues common to both causes of action which were actually litigated in the prior action. See, Seaboard Coast Line Railroad, supra. In the present case, the issue of whether the appellee interfered with appellants’ business, thereby hindering appellants’ ability to make mortgage payments, was not litigated in the prior case. The trial court there merely enjoined the parties from harassing each other and did not address the question of whether the alleged acts interfered with appellants’ ability to make mortgage payments. Therefore, summary judgment was improper in that material issues of fact remain to be determined regarding appellants’ affirmative defenses to the mortgage foreclosure.

Accordingly, we affirm the final summary judgment against the appellants on their counterclaim and reverse the final summary judgment of foreclosure. In doing so, we do not express an opinion on the validity of the allegations as a defense to the mortgage foreclosure proceedings.

AFFIRMED IN PART and REVERSED IN PART.

DOWNEY, J., and BARKETT, ROSEMARY, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Edith Darleen PETERSEN, Appellee.
    No. 81-28.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Melvin S. Black, Miami, for appellee.
   PER CURIAM.

The order granting Petersen’s Motion to Dismiss is reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981). The cause is remanded for further proceedings.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


author: COWART, Judge.

text:
    Dennis VAN PROOYEN and Jean Van Prooyen, his wife, Appellants, v. Roy S. MAPLES, d/b/a Better Air & Heating, and Huber Construction Company, Appellees.
    No. 81-162.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 17, 1981.

      Bernard D. Sommers, Maitland, for appellants.
    John C. Briggs of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P.A., Orlando, for appellee.
   COWART, Judge.

A subcontractor who had furnished material and labor toward the construction of a house for the Van Prooyens brought an action to enforce a mechanics’ lien to recover for the work, against Huber, as general contractor, and the Van Prooyens. Huber cross-claimed against the Van Prooyens for the sums due under its contract with them. In their answer to this cross-claim, the Van Prooyens demanded trial by jury “on all issues triable by a jury.” The trial judge struck the demand upon Huber’s motion, because no issues were triable by jury at that time. Striking the demand was improper; issues triable by jury could, and in fact did, later arise. Subsequently, the Van Prooyens filed a cross-claim against Huber for negligent performance of the construction contract. All issues were tried without a jury.

Jury trial should have been held on the Van Prooyens’ cross-claim, even though, at the time the demand for jury trial was filed, no issues in the cause were triable by jury. The demand was timely as to this claim under Florida Rule of Civil Procedure 1.430(b), which provides that a demand may be served at any time after commencement of the action and ten days after service of the last pleading directed to the issue to be so tried.

Furthermore, the Van Prooyens did not waive their demand by their subsequent failure to request jury trial within the cross-claim itself or their acquiescence in non-jury trial of their cross-claim. Once jury trial has been demanded, it can be waived only by affirmative act, such as a specific waiver in writing or an announcement of the waiver in open court. Barth v. Florida State Constructors Service, Inc., 327 So.2d 13 (Fla.1976).

Since the Van Prooyens’ cross-claim against Huber was improperly tried without a jury, the final judgment is reversed insofar as it adjudicates the claim and the cause is remanded for jury trial of that claim alone.

AFFIRMED IN PART; REVERSED IN PART.

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


author: COBB, Judge.

text:
    Evelyn H. GOLDMAN, individually and as the Personal Representative of the Estate of Russell J. Goldman, Appellant, v. Jack MANDELL, individually, Jack Mandell and Doris Mandell, his wife, and Flagship Bank of Tampa, a Florida banking corporation, as the Personal Representative of the Estate of Roald A. Jacobsen, Appellees.
    No. 81-119.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 14, 1981.
    Ted R. Manry, III, and Charlie Luckie, Jr., of MacFarlane, Ferguson, Allison & Kelly, and Richard W. Reeves, Tampa, for appellant.
    Ronald A. Cyril and Omer S. Causey of Nelson, Hesse, Cyril, Weber, Smith & Wid-man, Sarasota, for appellees.
    Patrick T. Christiansen and Robert W. Wattwood of Akerman, Senterfitt & Eid-son, Orlando, for amicus curiae, The Real Property, Probate and Trust Law Section of The Florida Bar, John Arthur Jones, Chairman.
   COBB, Judge.

The issue raised in this appeal is whether the assignment of an interest in an Illinois land trust created in accordance with section 689.071, Florida Statutes, must be witnessed by two witnesses in accordance with the provisions of section 689.06, Florida Statutes. We hold that section 689.06 does not apply and no witnesses are required.

On December 15, 1965, Roald Jacobsen executed a land trust agreement in which he agreed to hold the title to certain real property for the benefit of Russell Goldman and Jack Mandell. On the same day, Russell and Evelyn Goldman and Jack and Doris Mandell executed a deed in trust conveying certain real property to Roald Jacobsen as trustee. These documents created what is known as an Illinois land trust, which was provided for by section 689.071, Florida Statutes. On February 11, 1967, Jack Man-dell executed an unwitnessed assignment of his interest in the trust property to Russell Goldman.

In 1975, both Roald Jacobsen and Russell Goldman died. Evelyn Goldman, as personal representative of her husband Russell Goldman’s estate, became involved in a dispute with Jack and Doris Mandell over the ownership of the trust property. Evelyn Goldman brought a declaratory judgment action seeking to resolve the ownership issue. The Mandells answered and then moved for summary judgment. The trial court granted the motion for summary judgment and found in favor of the Man-dells on the ground that the assignment was invalid as a matter of law. It is this summary final judgment that Evelyn Goldman is appealing.

Basically, Evelyn Goldman contends that since section 689.071 was enacted subsequent to section 689.06, section 689.071 supersedes; and since section 689.071 allows for a trust interest in real property to be deemed personal property, that means that section 689.06 no longer applies to the transfer of an interest in a land trust. Therefore, she argues that the trial court erred in ruling that the assignment was invalid.

On the other hand, the Mandells argue that if the Legislature had intended for section 689.071 to be outside of the requirements of section 689.06, it would have expressly so worded section 689.071. Since the Legislature did not expressly exclude section 689.071 from the provisions of section 689.06, the Mandells argue that the two statutes should be read in pari materia with the two-witness requirement of section 689.06 applying to the land trust created by section 689.071.

Sub-section (4) of section 689.071, which was enacted in 1963, provides:

(4) In all cases where said recorded instrument, as hereinabove provided, contains a provision defining and declaring the interests of beneficiaries thereunder to be personal property only, such provision shall be controlling for all purposes where such determination shall become an issue under the laws or in the courts of this state.

The “recorded instrument” in the instant case was the trust deed from the Goldmans and the Mandells to Jacobsen. That deed specifically declared the interests of the beneficiaries thereunder to be personal property only. That provision, in accordance with the clear statutory language, controls the determination in the instant case.

In this type of land trust, both the legal and equitable title are vested in the trustee. The beneficiary has no interest in either. The rights, privileges and obligations of the beneficiaries are not interests in real estate, but are expressly characterized as personal property. Taylor v. Richman’s New Approach Ass’n, Inc., 351 So.2d 1094 (Fla.2d DCA), cert. denied, 363 So.2d 885 (Fla.1978); Ferraro v. Parker, 229 So.2d 621 (Fla. 2d DCA 1969); Florida Real Property Practice II § 11.32, The Florida Bar Continuing Legal Education (2d ed. 1975); Kenoe on Land Trusts § 1.3, Illinois Institute for Continuing Legal Education (1978). The beneficial interest under a land trust, which is personal property, is transferable by a simple assignment. Shefner v. University Nat’l Bank, 40 Ill.App.3d 978, 353 N.E.2d 126 (1976); Kenoe on Land Trusts § 5.6, Illinois Institute for Continuing Legal Education (1978). This transfer can be effected by any form of assignment adequate to transfer an interest in intangible personal property. Kenoe on Land Trusts § 311, Illinois Institute for Continuing Legal Education (1978).

Accordingly, the summary judgment entered below is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: LARRY G. SMITH, Judge.

text:
    Arnett GIRARDEAU, Appellant, v. STATE of Florida, Appellee.
    No. AF-151.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1981.
    Rehearing Denied Oct. 2, 1981.
    Wm. J. Sheppard and Elizabeth L. White, of Sheppard & Carithers, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Appellant, Arnett Girardeau, a member of the Florida House of Representatives, appeals a judgment of contempt entered by the Circuit Court for his refusal to answer questions before a Union County grand jury. The issue presented for our consideration, simply stated, is whether appellant may lawfully assert a privilege of non-disclosure of information received by him in connection with the discharge of his duties as a legislator, when that information is sought by a grand jury in connection with its investigation of a crime. We conclude that the trial court correctly rejected the claim of privilege and therefore did not err in ordering appellant to answer questions propounded to him before the grand jury, nor did the court err in adjudicating and sentencing appellant for contempt of court for his refusal to answer after being so ordered. We affirm.

Appellant was Chairman of the House Committee on Corrections, Parole and Probation, and a member of the Ad Hoc Subcommittee on Management and Oversight. The committee and subcommittee were investigating the management of the Department of Corrections, including inmate allegations of abuse, and allegations involving the death of inmate Vertís Graham, at Union Correctional Institution. In order to facilitate this investigation, appellant and other committee members received information from inmates and correctional officers at various correctional institutions. Among those interviewed by appellant was one Johnny Fort, an inmate at Union Correctional Institution.

The Union County grand jury also began an investigation of the death of Vertís Graham. A subpoena duces tecum was issued directing appellant to appear and to bring any tapes, documents or materials in his possession relating to the Graham death. Appellant’s motion to quash the subpoena, heard and ruled upon by the circuit judge prior to appellant’s appearance before the grand jury, was denied. Upon being questioned before the grand jury regarding the Graham death and information received by appellant from Johnny Fort regarding the death, he refused to testify, asserting a legislative privilege. The circuit judge, ruling against the asserted privilege, directed appellant to testify. When appellant continued to refuse to testify he was adjudged in contempt of court and sentenced to thirty days in the Union County jail, provided that appellant could purge himself of contempt at any time by testifying as ordered. This court stayed the execution of the sentence for contempt and ordered an expedited briefing schedule and oral argument to allow full consideration of the claim of privilege.

Appellant concedes the absence of any express constitutional or statutory provision authorizing the invocation of the privilege asserted. In this connection we note Section 90.501 of the recently adopted Florida Evidence Code which specifically provides for the non-existence of any privilege in a legal proceeding to refuse to be a witness, to disclose any matter, or produce any documents or writings, except as provided by the Code, any other statutes, or the Constitution of the United States or of the State of Florida. Neither the Code, the statutes, nor either Constitution expressly provides for a legislative privilege as claimed by appellant.

Appellant’s assumptions concerning the existence of the privilege are based primarily upon premises extracted from two Florida constitutional provisions, aided by principles drawn from federal and state constitutional law dealing with inherent authority and separation of powers, and the federal constitutional “Speech or Debate Clause.” Appellant argues first that inherent in the Florida Legislature’s investigative function, pursuant to Article III, Section 5 of the Florida Constitution, is the ability of that body to maintain confidentiality with regard to its investigations. That provision of the Constitution is as follows:

SECTION 5. Investigations; witnesses. —Each house, when in session, may compel attendance of witnesses and production of documents and other evidence upon any matter under investigation before it or any of its committees, and may punish by fine not exceeding one thousand dollars or imprisonment not exceeding ninety days, or both, any person not a member who has been guilty of disorderly or contemptuous conduct in its presence or has refused to obey its lawful summons or to answer lawful questions. Such powers, except the power to punish, may be conferred by law upon committees when the legislature is not in session. Punishment of contempt of an interim legislative committee shall be by judicial proceedings as prescribed by law.

Appellant refers us to the constitutional law principle that specific grants of power to one branch of government carry with them inherent powers which facilitate the exercise of its express powers. McCulloch v. Maryland, 17 U.S. 316, 4 L.Ed. 579 (1819); Amos v. Mathews, 99 Fla. 1, 126 So. 308 (1930). For example, although the United States Constitution contains no express provision permitting congressional investigations, the United States Supreme Court has ruled that inherent in the power of congress to legislate is the power to investigate any matter which may result in the development of future legislation. Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 471, 73 L.Ed. 938 (1928); McGrain v. Daughtery, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed 580 (1926). Similarly, although thie United States Constitution has no separation of powers clause it is firmly established that the power of one branch of government cannot be usurped or interfered with by a different branch. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Appellant notes, however, that the United States Constitution, unlike the Florida Constitution, does expressly provide protection to members of Congress, specifically, Article I, Section 6, clause 1, the so-called “Speech or Debate Clause.”

Conceding the absence from the Florida Constitution of a “Speech or Debate Clause” appellant nevertheless submits that an express speech or debate clause is unnecessary in Florida because of the interplay between Article II, Section 3, of the Florida Constitution, the “Separation of Powers Clause,” and Article III, Section 5 (above quoted), providing for legislative investigations. Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Appellant then urges this court to adopt what he refers to as an “expansive interpretation” of these two constitutional provisions and to conclude that the express power to conduct legislative investigations, when considered in connection with the express separation of powers doctrine embodied in the Florida Constitution, implies the ability of the legislature to refuse to disclose its findings “when necessary.” Appellant argues for a broad construction of Article III, Section 5, absent which, in appellant’s view, the ability of the legislature to conduct its investigations would be severely diminished and legislative integrity would be disrupted by the judicial branch of government, through its grand jury.

These arguments, briefly summarized above, would merit serious consideration were we called upon in this case to sanction the invocation of privileges and immunities similar to those which have been found to exist under the federal speech or debate clause. However, in the context of this case, they are not compelling.

In reaching our decision we are not called upon and do not decide the scope or even the existence of a “legislative privilege” similar to that provided to members of Congress under the speech and debate clause. There is every reason to believe that all due deference will and should be extended by the judicial branch to any properly asserted legislative claim of privilege, and it is imperative that it be kept in mind that such claims of privilege are supported by substantial authority. “Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good.” Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1931); and see 72 Am.Jur.2d, States, etc., § 55. However, even assuming (without deciding) the existence of a legislative power to conduct confidential investigations and a generalized privilege on the part of a member to refuse to disclose evidence received in the course of such an investigation, any such claim of confidentiality cannot override or defeat the pressing need of the criminal justice system, of which the grand jury is an integral part, for evidence of a crime alleged to have been committed in the state.

If there is one principle that emerges clearly from the now legendary “Watergate” episode, it is that even the power of the President of the United States cannot override the power of the judicial branch to compel a full disclosure of the facts in a criminal investigation. In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the court sustained the denial, by the lower courts, of the President’s motion to quash a subpoena duces tecum served upon him for production before trial of certain tapes and documents relating to conversations and meetings of the President with others. This material was being sought in connection with a pending indictment alleging violation of federal statutes by certain White House staff members. Many of the same arguments made to justify the President’s refusal to comply with the subpoena are made here, notably, the asserted necessity for confidentiality of communications, and the independence of the Chief Executive flowing from the constitutional doctrine of separation of powers. While acknowledging the existence of a “presumptive privilege” for presidential communications, which is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution . . .,” the court nevertheless ruled in favor of disclosure, stating (94 S.Ct. at 3110):

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

We fully appreciate the fact that United States v. Nixon, deals with nondisclosure by a member of the executive branch, while here we deal with the legislative branch. We conclude, however, that regardless of whether the executive or legislative branch is concerned, when the controversy involves the specific issue of disclosures pertinent to a criminal trial or investigation, the principles upon which a decision must be based would be the same. On this point we need not speculate, however, for it is clear from the court’s decision in Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), decided prior to the Nixon case, that the protections afforded to members of the legislative branch, i. e., Congress, under the speech or debate clause does not extend to investigations concerning third-party crime. We apply the holdings of these cases to the issues before us, although they are based on federal, not state law, because we can conceive of no reason, and indeed none has been presented, why the same principles would not be applicable on the state level to an issue so fundamental as the need for a full disclosure of all evidence relating to criminal acts. Significantly, appellant’s brief does not cite either Nixon or Gravel, nor does appellant’s reply brief attempt to distinguish, or even mention, either case, although cited by ap-pellee.

Finally, appellant’s reliance upon Kirk v. Baker, 229 So.2d 250 (Fla.1969), in support of his plea for an “expansive” interpretation of the Florida Constitution so as to imply the privilege he seeks to invoke is unavailing. The Kirk case held that, under the facts presented, the Governor and his subordinate agent were immune from the attempted assertion of jurisdiction and control of their actions by way of contempt proceedings instituted by the Criminal Court of Record of Dade County. Appellant’s brief erroneously refers to Judge Baker as a “circuit court judge,” although he was actually a judge of the Criminal Court of Record, a factor which, from our reading of the entire opinion, may have been of considerable significance. Appellant has also overlooked the court’s observation that although the Governor was “cloaked with immunity” as to the actions of the court, “the proper forum for such charges is the House of Representatives . . ., or a grand jury” (229 So.2d at 252, emphasis supplied). In a footnote to the opinion the court observed that both the Governor and his subordinate did appear before a grand jury, which took no action. Footnote 11 of the opinion (Id. at 249) cites numerous cases dealing with limitations or restraints upon judicial intervention with respect to a Governor’s exercise of administrative, discretionary or “political” functions, none of which are pertinent to the case before us. However, in the interest of a “workable government,” with “separateness but interdependence, autonomy but reciprocity” as to each of its branches, we commend to those concerned (including ourselves) the observation by Mr. Justice Drew in Kirk, speaking with reference to the difficulty of finding relevant authorities on the subject (Id. at 252-253):

. . . Unquestionably the dearth of authority is occasioned by the fact that the respective branches of government in our country have throughout our history assiduously avoided any encroachment on one another’s authority. In those few instances where difficult cases have arisen, each branch has had enough foresight and respect for the orderly functioning of the governmental processes to avoid a confrontation.

The judgment appealed is AFFIRMED.

MILLS and ERVIN, JJ., concur.

      . In McGrain, discussing the policy considerations requiring a finding of implied investigatory powers, the court said: “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; ...” The court further observed that at the time the Constitution was adopted the power of inquiry, with enforcing process, "... was regarded and employed as a necessary and appropriate attribute of the power to legislate —indeed, was treated as inhering in it.... ” (273 U.S. at 175, 47 S.Ct. at 329).

      . The “Speech or Debate Clause” of Article I, Section 6, Constitution of the United States, provides:
      The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
      In United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), the court found from the history of the clause that it was not primarily intended to avoid private suits, but rather, “to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” (Id. at 181, 86 S.Ct. at 755). For a more recent discussion of the history, purpose and rationale underlying the clause see United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980). It has been held, however, that the Speech or Debate Clause of the United States Constitution is not applicable to state legislatures. Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979).

      . Appellant’s brief informs us that forty-three State Constitutions contain provisions conferring a speech or debate privilege upon state legislators, and another five specifically exempt legislators from arrest during a legislative session, but do not provide a speech or debate privilege. Only the Florida and North Carolina Constitutions confer no constitutional protection upon members of the legislature. The State’s brief informs us that thirty-nine states have a separation of powers clause in their State Constitutions, yet many of those also have explicit legislative privilege clauses, so that apparently as to states having both it was not considered that the “separation of powers” clause implied the existence of a speech or debate clause. It is also noted that Florida’s 1865 Constitution contained a speech and debate clause in language substantially similar to that found in the United States Constitution; however, the clause was omitted from the 1868, 1885, and the current (1968) Florida Constitutions.

      . The question of when it is “necessary” for the legislature to refuse to disclose its findings clearly raises a question of law and, as firmly reaffirmed by the court in United States v. Nixon, 418 U.S. 683, 704, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974), it is the province and duty of the judicial branch to “say what the law is.” However, the question also implies the need for a “balancing” process, much as undertaken by the court in United States v. Nixon, supra, and, in another context, by the Florida Supreme Court in Morgan v. State, 337 So.2d 951 (Fla.1976).

      . Appellant’s brief notes the absence of any express Florida constitutional provision “authorizing the actions of the grand jury in question.” This somewhat casual reference, although not pursued or argued to any extent, suggests the existence of some doubt or confusion as to the exact place of the grand jury in matters of this kind. We see no reason for doubt or confusion.
      “. . . A grand jury is an agency of the state, and a part of its judicial system. It has been variously referred to as a coordinate branch of the judiciary, and as an arm, appendage, or adjunct of the circuit court. In essence, it is a creature of the court since it cannot constitute itself on its own initiative but can act as a grand jury, in accordance with the law, only when summoned, impaneled, and convened by the court . . ..”
      15 Fla. Jur., Grand Jury, § 2, quoted in In Re: Grand Jury Investigation, Frank Cobo, Movant, 287 So.2d 43 (Fla.1973). Since the Florida grand jury system is derived from the common law, except as otherwise modified, the 1968 revision of the Florida Conslitution eliminating authorization for a grand jury as previously contained in Section 10, Declaration of Rights, Florida Constitution of 1885, F.S.A., has no effect upon the existence or validity of the grand jury system. Portee v. State, 253 So.2d 866 (Fla.1971); and Reed v. State, 267 So.2d 70 (Fla.1972). See, additionally, Section 2.01, Florida Statutes, declaring the common and statute laws of England as of July 4, 1776, as the law of this state, where not inconsistent with the Constitution and laws of the United States and the acts of the legislature of this state. See further, Article I, Section 15, Florida Constitution, 1968, recognizing the institution of the grand jury, although without provisions as to its constitution, powers or duties, in the provision “(a) no person shall be tried for capital crime without presentment or indictment by a grand jury. ..."

      . No statute or rule provides for confidential hearings or investigations by the legislature. Rule 6.25, The Rules Governing The Florida House of Representatives (1980-1982) provides: “6.25 — Open Meetings. All meetings of all committees shall be open to the public at all times, subject always to the authority of the presiding officer to maintain order and decorum.”
      Further, as previously noted in this opinion, Section 90.501 of the Florida Evidence Code mandates a finding of no such privilege of nondisclosure. “Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges.” United States v. Nixon, 418 U.S. 683, 709, footnote 18, 94 S.Ct. 3090, 3108, fn. 18, 41 L.Ed.2d 1039. As recently restated in Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972), and again in Nixon, “. . . the public . . . has a right to every man’s evidence, except for those persons protected by a constitutional, common-law, or statutory privilege, ...” (citations omitted). We are not, however, insensitive to the need for freedom of communication, which often means confidentiality and freedom from compelled disclosure, such as it is accorded to judicial deliberations. This has been translated, as to Presidential communications, by the Nixon court, as the freedom “. . . to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” United States v. Nixon, 418 U.S. at 708, 94 S.Ct. at 3107.

      . The Nixon case drew a clear distinction between the “presumptive privilege” based upon the generalized need for confidentiality of high level communications and the privilege absolute, or nearly so, as to communications relating to military, diplomatic or sensitive national security secrets.

      . Referring to the speech and debate clause, the Gravel opinion states (408 U.S. at 622, 92 S.Ct. at 2625):
      ... Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act... ***** But the clause has not been extended beyond the legislative sphere. ... Id at 624, 92 S.Ct. at 2626.
      Legislative acts are not all-encompassing. The heart of the Clause is the speech or debate in either house. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which members participate in committee and house proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the court of appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either house, but only “when necessary to prevent indirect impairment of such deliberations.” (citation omitted) Id. at 625, 92 S.Ct. at 2627.

      . Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635, 72 S.Ct. at 870, quoted in United States v. Nixon, 418 U.S. at 707, 94 S.Ct. at 3107.


text:
    Richard HICKS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-310.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin and Anthony C. Musto, Asst. Attys. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 22, 1980, 378 So.2d 1342, affirming the judgment and sentence of the circuit court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed June 25, 1981, 400 So.2d 955, and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on February 6, 1980 is withdrawn the judgment of this court filed January 22, 1980 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 9.400(b) Florida Rules of Appellate Procedure).


text:
    MINI-HOSPITAL, INC., a Florida corporation, and Rafael Huguet, Appellants, v. J. P. REALTY, INC., and Joann Pena, Appellees.
    Nos. 80-1631, 80-1875.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Fieldstone, Oliver, Kluger, Sumberg & Mondre and Samuel I. Burstyn, Miami, for appellants.
    Joe N. Unger, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

We reverse a judgment, notwithstanding the verdict entered immediately after a verdict was returned, with instructions to reinstate the verdict and then permit the appellants to file such post trial motions as they may be advised. If there is any evidence tending to prove the issues, the matter should be submitted to the jury. McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969); McQueen v. Atlantic Truck Service, Inc., 215 So.2d 325 (Fla. 1st DCA 1968); Cutchins v. Seaboard Air Line Railroad Company, 101 So.2d 857 (Fla.1958). A trial judge who properly denies a motion for directed verdict may still grant a new trial because the verdict is against the manifest weight of the evidence. Atlantic Aircraft Corp. v. English, 198 So.2d 862 (Fla. 3d DCA 1967); Florida Power Company v. Cason, 79 Fla. 619, 84 So. 921 (1920); Gravette v. Turner, 77 Fla. 311, 81 So. 476 (1919).

Reversed and remanded, with directions.

      . The cost judgment, based on the recovery by the plaintiff, is also reversed.