author: DOWNEY, Chief Judge.

text:
    KING PEST CONTROL, Appellant, v. Robert Dennis BINGER and Beverly A. Binger, his wife, Michael Wade Garrison, Unigard Insurance Group and “John Doe” Insurance Company, Appellees.
    No. 78-1495.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 29, 1980.

      Edna L. Caruso, West Palm Beach and Thomas C. Heath of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Harry A. Gaines, Miami, for appellees.
   DOWNEY, Chief Judge.

In this appeal from a final judgment arising out of an automobile accident appellant contends the trial court erred in 1) allowing appellees to call an unlisted witness during rebuttal, and 2) in denying a motion for new trial because of improper conduct of opposing counsel during the trial and closing argument.

The individual appellees sued appellant in 1976 for damages sustained as a result of an auto accident. The jury assessed appellees’ damages at a total of $50,000, but the award to appellees was reduced to $37,500 because of appellees’ comparative negligence.

During the pretrial stage of the case the trial court ordered the parties, among other things, to exchange witness lists at least 20 days prior to trial. This order was complied with. However, on March 7, 1978, over a month prior to trial, appellant filed an amended pretrial catalog naming as a witness “Burton Morrow (sic), Ph.D., School of Engineering & Design, Univ. of Miami.” On April 13, 1978, four days prior to trial, appellees took Murrow’s deposition.

At trial during the presentation of its defense appellant called Murrow as an expert witness in accident reconstruction and he testified to various aspects of the accident, including speed of the vehicles and distances travelled. After appellant had rested, appellees called Daniel R. Wells, a professor of physics, as an expert witness. Appellant objected to the witness because he had not been listed on appellees’ pretrial catalog, although he had been employed by appellees several weeks prior to trial and had been afforded an opportunity to study Murrow’s deposition testimony.- After considerable argument the trial court allowed Wells to testify. The thrust of his testimony was that, given the information and facts which Murrow had pertaining to the accident, Wells could not render an expert opinion regarding distance travelled or the speed of- the vehicles.

It is appellant’s contention that the trial court committed reversible error in allowing Wells to testify, since appellees had failed to give appellant any notice he might be called. In addition, appellant contends that Wells was not a proper rebuttal witness because his testimony was substantive and should have been adduced during appel-lees’ case in chief. Appellees, on the other hand, assert that Wells’ testimony was impeaching rather than substantive testimony and as such it was proper rebuttal and not subject to the requirement that he be listed.

First of all, we disagree with appellant’s characterization of Wells’ testimony as substantive and thus not proper rebuttal. The entire thrust of Wells’ testimony was that the facts and information furnished to Dr. Murrow were insufficient as a predicate to form an expert opinion regarding speed and distance. Thus, his testimony was limited to impeachment of Murrow’s opinion. Wells did not testify to any issue made by the pleadings, which is the test to determine whether testimony is substantive and properly adduced during one’s case in chief. Hartstone Concrete Products Company v. Ivancevich, 200 So.2d 234 (Fla. 2d DCA 1967).

It appears to us there is still a great deal of confusion regarding the necessity to divulge the names of witnesses. Some authorities seem to suggest that a witness need not be disclosed if he is an “impeachment” witness; others suggest notification of the witness is unnecessary if he is a rebuttal witness; yet others hold that notice of the witness is not required if he is used to respond to new matters or surprise testimony which comes out at trial. In our judgment, none of these characterizations is adequate to furnish practical rules which can be used by the Bench and Bar to resolve this thorny problem in the midst of a trial.

In an effort to articulate workable guidelines we would first look to the rules of procedure. In criminal cases, Florida Rule of Criminal Procedure 3.220 requires the State to furnish the defendant, upon demand, the names and addresses of all persons known to the prosecutor to have information relevant to the offense charged and any defense thereto. Then within seven days after receipt of that list defense counsel must furnish the prosecutor the names and addresses of all witnesses which the defense expects to call. Unlike the current Rules of Civil Procedure there is a continuing duty under the criminal rules to divulge new witnesses or materials. Fla.R.Crim.P. 3.220(f). Under the civil procedure rules the names and addresses of witnesses are obtained either by depositions, interrogatories or pretrial court order. But, regardless of the vehicle used to obtain names of pertinent witnesses, it is now clear that the current rules were enacted “to eliminate surprise, to encourage settlement, and to assist in arriving at the truth.” Corack v. Travelers Insurance Company, 347 So.2d 641 (Fla. 4th DCA 1977), cert. denied 352 So.2d 175 (Fla.1977); Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975), cert. denied 314 So.2d 590 (Fla.1975); Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970). To paraphrase one court, trial by ambush is a thing of the past, or as the Third District concluded, “. . . litigation should no longer proceed as a game of ‘blind man’s bluff’ ”. We attempted to comply with the spirit of those rules in Corack, supra, and Spencer, supra, in holding that surveillance movies are subject to discovery if they are to be used at trial. The Third District followed suit in Reynolds, supra, in holding that a tape recording of a meeting was subject to discovery — over objection that the recording was work product only to be used for impeachment.

In this case we are not dealing with a discovery motion, or an inquiry by way of a deposition or interrogatory. We have a court order requiring the parties to exchange the names and addresses of witnesses. It is contended that such an order means disclose only witnesses who will testify to substantive matters, i. é., testimony which bears upon the issues made by the pleadings and does not apply to impeachment or rebuttal witnesses. However, we see no reason why the spirit of the discovery rules should not apply as well to court orders requiring parties to exchange information. Rhetorically, one might ask, if a party must produce a tape or a movie pursuant to a discovery motion even though he intends to use it only for impeachment, why should a party be able to secrete the names of a likely witness because he intends to use him only for impeachment. The purpose of the rule is more nearly accomplished by divulging the information which may likely cause the other parties to settle the case or at least desist from using some questionable evidence than it is by allowing a party to withhold notice of the impeaching witness and then bring him on to obliterate the opponent’s case.

Therefore, rather than east the question in the negative and describe the categories of witnesses who need not be listed on a court ordered witness list, we suggest the list should contain the names and addresses of all persons who, within reason, a party might call as a witness, be they for impeachment, corroboration or to adduce substantive proof, and regardless of the part of the trial in which they might appear. As we see it, the key to the proper administration of such a rule is the trial judge, clothed as he is, with a broad discretion in resolving questions arising during a trial. Williamson Truck Lines Inc. v. Kellar, 301 So.2d 818 (Fla. 3rd DCA 1974); Green v. Shoop, 240 So.2d 85 (Fla. 1st DCA 1970); County of Brevard v. Interstate Engineering Company, 224 So.2d 786 (Fla. 4th DCA 1969); Atlas v. Siso, 188 So.2d 344 (Fla. 3rd DCA 1966). Should either party offer an unlisted witness, objection by the opposition requires the trial judge to determine whether the witness should be allowed. If no prejudice will accrue to the objecting party, the witness should be heard. On the other hand, if the objector will be prejudiced, then the court must determine whether the party offering the witness should have foreseen the eventuality of needing to call the witness. Prejudice, of course, does not mean that the witness will testify favorably to the side calling him. Rather, it means that the objecting party might well have taken some action to 'protect himself had he timely notice of the witness and that there exist no other alternatives to alleviate the prejudice as suggested in the dissenting opinion in Kilpa-trick v. State, supra.

In the case at Bar it appears to us that appellees should have listed Wells on an amended pretrial catalog and that their failure to do so prejudiced appellant. Wells certainly was a witness “within reason” ap-pellee should have foreseen might be called as a witness. He had been employed by appellees several weeks prior to trial, he had reviewed Murrow’s deposition testimony, and we have no doubt advised appellee of his conclusion that the facts did not support Murrow’s opinion. Had Murrow known what Wells would say he no doubt could have explained more fully how he was able to reach a valid opinion based on the information at hand, which in turn could have made a substantial difference in the jury’s conclusion as to fault in this case.

We will only briefly address appellant’s other two points, since we have decided the case must be reversed. Appellant complains bitterly about the conduct of ap-pellees’ trial counsel both during the trial proper and in final argument. Our examination of the transcript reflects many vitriolic remarks made by appellees’ counsel, which resulted in both counsel engaging in extended vituperation. The picture presented by the transcript is a classic example of how lawyers should not conduct themselves in the courtroom. And unfortunately, the trial judge did little to prevent it. Lawyers should be allowed to try their case without undue interference by the presiding judge as long as they conduct themselves appropriately within the confines of ethics and accepted courtroom decorum. But when counsel resort to stump speeches in speaking motions and objections and engage in petulant quarreling with each other they distract the jury from its mission and the trial judge should exercise that degree of control necessary to prevent such unseemly and unprofessional conduct. In these two appellate points reversible error has not been demonstrated because appellant’s counsel participated in the offensive conduct during the trial and failed to object during appellees’ final argument.

The judgment appealed from is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

ANSTEAD and LETTS, JJ., concur.

      . In Kilpatrick v. State, 376 So.2d 386, Florida Supreme Court 1979, the Supreme Court recently pointed out there is no exception in the rules of criminal procedure for rebuttal witnesses.

      . Reynolds v. Hofmann, 305 So.2d 294 (Fla. 3rd DCA 1974).


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    Sheldon D. WOODWARD, Appellant, v. STATE of Florida, Appellee.
    No. 79-338/T2-13.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 15, 1980.
    Milton M. Ferrell, Jr. of Ferrell & Ferrell, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   DAUKSCH, Chief Judge.

On appeal is a conviction of possession of more than one hundred pounds of cannabis, a proscribed drug under section 893.03(l)(c), Florida Statutes (1977). In Hamilton v. State, 366 So.2d 8 (Fla.1978), our Supreme Court ruled this statute constitutional when it was attacked by an allegation that it is arbitrary, irrational and against the best scientific evidence to classify it as a proscribed drug. Here the appellant has attacked Section 893.03(l)(c), Florida Statutes, by alleging that statute is so vague as to be unconstitutional. If we were not of the opinion that appellant’s contentions regarding constitutionality are merely colorable, without substance and essentially frivolous, we would lack jurisdiction and would be required to transfer this case to our Supreme Court. Article 5, Section 3(b)(1), Florida Constitution. Because our Supreme Court at least implicitly found the statute not unconstitutionally vague in Hamilton; Bourassa v. State, 366 So.2d 12 (Fla.1978); Town v. State ex rel. Reno, 377 So.2d 648 (Fla.1979); State v. Cheatham, 376 So.2d 1167 (Fla.1979) and Cilento v. State, 377 So.2d 663 (Fla.1979), we find no substance in the constitutional argument. We thus suppress our initial desire to send this case up to our Supreme Court. State v. Opitz, 357 So.2d 469 (Fla.2d DCA 1978); Simmons v. State, 354 So.2d 1211 (Fla.1978).

As to the following remaining points appellant raises alleging error, we find the evidence was sufficient to support the conviction, the alleged search and seizure question was not properly preserved for appellate review, the alleged discovery rule violation does not require reversal, the insubstantial attempt to disqualify the trial judge warrants no further comment and the error alleged in regard to the procedure in court regarding certain evidence lacks the prejudicial effect to warrant reversal.

Finally, and most interestingly, the appellant alleges a lack of proof he possessed more than five grams of marijuana because the chemist expert witness did not separate the stems and stalks from the leaves before determining there was more than five grams so as to warrant a felony conviction, or in this case the more serious felony of possession of more than one hundred pounds. In Purifoy v. State, 359 So.2d 446 (Fla.1978), it was held that the state has the burden of proving the weight of the marijuana the accused possessed, and must prove that the measurement excluded the plants’ stalks and stems because it is not illegal to possess stalks and stems. We do no violence to the rule announced in Puri-foy when we uphold the conviction of this appellant for possession of more than one hundred pounds when it was proved he and others possessed approximately thirty-eight thousand pounds. In that gross weight we are certain at least one hundred pounds were the prohibited drug. It defies logic to assume that a midnight off-loading of bales of marijuana from a large ship to a small boat and then into vans on shore is the legal delivery of stems and stalks for the manufacture of hemp rope rather than the delivery of the leaves for their consumption in an illegal manner. Some of the contents of various bales were removed and analyzed and found to contain prohibited cannabis. The evidence is legally sufficient to prove appellant and others possessed all of the nineteen tons so it follows from the proof that appellant was properly convicted.

AFFIRMED.

COBB and SHARP, JJ., concur.


author: PER CURIAM.

text:
    Crispina RUENES and Rogelio Ruenes, her husband, Individually and as natural parents of Lazara V. Ruenes, a minor, Carolyn Broadwater Lima and Severino Dacosta Lima, Appellants, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, a foreign corporation, Appellee.
    Nos. 79-327, 79-714.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and Alan R. Dakan, Kaplan, Lev-inson, Kenin & Richards and Peter H. Leavy, Miami, for appellants.
    Broad & Cassel and Patricia Lebow, Bay Harbor Island, Goodhart & Rosner, Myers, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Garrote v. Liberty Mutual Insurance Company, 496 F.2d 1168 (5th Cir. 1974).


author: SCHWARTZ, Judge.

text:
    Jose P. BARED et al., Appellants, v. Jose COBO, Appellee.
    No. 79-538.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Murai, Wald & Biondo, Susan Goldman, Miami, for appellants.
    Therrel, Baisden, Stanton, Stillman, Brown & Wood and Howard A. Setlin, Miami Beach, Alfred Manheim, Miami, for ap-pellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Jose Bared appeals from a “final order for release of tax refunds,” rendered after a non-jury trial, which provided for the distribution of $233,690.87 in Internal Revenue Service drafts. The checks represented tax refunds to a corporation, Bared & Cobo Company, Inc., a mechanical engineering firm, of which Bared and the appellee Jose Cobo had each owned 50% of the stock. The trial court ordered that approximately 82% of the refund, about $191,000; be paid to a successor corporation owned by Cobo, and 18%, $42,000, to one controlled by Bared. On this appeal, Bared contends that, under a proper interpretation of the parties’ agreements concerning the dissolution of the company and the winding up of its affairs, he is entitled to 54.55%, and Cobo only 45.45%, of the amount in question. We agree with the appellant’s position and therefore reverse the judgment under review.

The refunds in question were remitted because of losses sustained by Bared & Cobo Company on projects in which it was engaged on May 31,1977. It was as of that date that the corporation, by mutual agreement, was divided into two separate and equal Divisions. On June 9, 1977, Bared and Cobo signed a written agreement to that effect which stated that

“the jobs and assets of the Company shall be divided equally between the Bared Division and the Cobo Division according to a current allocation to be made by the [accounting] firm of Peat, Marwick, Mitchell and Company.”

Peat, Marwick undertook the task provided in this agreement, which involved primarily the problem of allocating several large and long-term construction contracts which were in various stages of completion on May 31, 1977. It is undisputed — because the Peat, Marwick partners who actually did the work each so testified at the trial— that, specifically in order to achieve equality between the Divisions in the post-May 31 period, the contracts were divided into two groups of equal value on a “percentage-of-completion,” rather than a gross value basis; that is, a $200,000 contract which was half-completed on May 31 was assigned the same value, $100,000, as a $1,000,000 project which was 90% finished on that date. The agreements were placed into two groups each with the same gross post-May 31 value, as so calculated. Bared and Cobo then literally flipped a coin to determine which had the choice of the two “piles” of contracts.

In a November 12, 1977 agreement, the parties supplemented the June 9 contract by providing for the dissolution of Bared & Cobo Company, Inc. through a spin-off of two newly-created subsidiaries into which the parent’s assets and liabilities were to be transferred. The November 12 agreement carefully provided that all pre-May 31,1977 gains and losses were to be divided equally, while those which were subsequently incurred would accrue to the advantage or disadvantage of the particular Division in question. In paragraph 1(C), which controls the issue in the case at bar, the parties made it clear that the same principle was to be applied to the tax consequences of the split. That provision states:

Each division is to pay the taxes due by the Corporation as a result of the profits of those divisions from May 31, 1977, and each division shall be entitled to a portion of prior taxes paid by the Corporation as a result of the losses of that division since May 31, 1977. Refunds obtained by the Corporation because of losses prior to such date shall be paid by the Corporation in equal amounts to the subsidiaries being spun off in accordance with the provisions hereunder . . . [e. s.]

The contracts in progress thereafter were divided in the manner which has been described, and each Division continued the work required to complete the group of projects to which it had been assigned. The present controversy arose largely because of two characteristics of the Bared & Cobo Co., Inc. tax accounting procedures: (a) while the division of the company was effective May 31, 1977, the corporation was on a November 1, 1976-October 31, 1977 fiscal year, and (b) the corporation computed its income based upon the “completed contract” method of reporting. As it also happened, the “pile” of agreements which became the responsibility of the Cobo Division included several which had large face amounts, but which had been substantially completed by May 31 and therefore had been given a relatively low valuation in the splitting of the contracts effected by Peat, Marwick. Although substantial losses had been sustained on these contracts, which were completed by the Cobo Division prior to October 31, the end of the fiscal year, the bulk of those losses were attributable to the period before May 31, when most of the work upon them had been performed by the original parent corporation. The refunds from the IRS in question in this case were almost all the result of these losses, as reported under the “completed contract” method in the 1977 Bared & Cobo Co., Inc. corporate income tax returns.

In the court below, the appellant Bared contended that these funds should be divided as the contracts had been, with the losses, and consequent refunds attributable to pre-May 31 operations on all the contracts split 50-50, and with post-May 31 losses and refunds distributed to the Division which had been responsible for them. If calculated in this way, 54.55% of the refund would go to Bared and 45.45%, to Cobo. Cobo, on the other hand, claimed that each party’s Division was entitled to receive the benefits of all the losses (or profits), no matter when incurred, on any contract assigned to that Division, regardless of what proportion of the contract in question had been completed by May 31. Since this theory resulted in the 82%-Cobo, 18%-Bared split of the IRS checks reflected in the final order, it is clear that the trial judge accepted the latter contention. This was error.

Simply stated, we find nothing in the record to support the lower court’s in-‘ terpretation of the agreement of the parties as to the distribution of the tax refund in question. It is apodictic that the main, indeed the only, issue really involved in the construction of contracts is the determination of the intention of the parties, as primarily reflected in the specific language which they themselves adopted. Holmes v. Kilgore, 89 Fla. 194, 103 So. 825 (1925); L’Engle v. Overstreet, 61 Fla. 653, 55 So. 381 (1911); J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So.2d 38 (Fla. 3d DCA 1978); 11 Fla.Jur.2d Contracts, Sections 107-108 (1979). Paragraph 1(C) of the November 12, 1979 agreement expresses, with what we think is complete clarity, the intention of the parties that any income tax benefits (or obligations) were to be distributed jufet as the contracts in progress had been — with the consequences of the pre-May 31 operations divided equally, and with only the post-May 31 profits and losses of a particular contract attributed to the Division which was charged with its completion. See Welsh v. Carroll, 378 So.2d 1255 (Fla. 3d DCA 1979).

Any uncertainty as to this conclusion is dissipated by the undisputed showings that (a) the entire purpose of the parties was to effect an equal division of Bared & Cobo Company and that (b) equality would not exist if each Division were completely responsible for all the tax consequences of a contract assigned to that Division which was incomplete on May 31, 1977. See Welsh v. Carroll, supra. As one of the Peat, Marwick partners who was directly involved unequivocally testified:

Q. Mr. Fernandez, was it ever the contemplation of Peat, Marwick in making this equal division, that each Division of the Company would be responsible for the entire income tax consequences of those continuing contracts which were partially performed prior to May 31, 1977?
A. Certainly not.
******
Q. Mr. Fernandez, if each Division of the Bared & Cobo Company were responsible for the entire tax consequences of all contracts including the portion of the contract performed prior to May 31,1977, would the division of the company which you effectuated in fact have been equal?
A. No [T]he divisions do not take a whole contract, they only basically take the unperformed portion of the contract from May 31st on, therefore, the profits earned, or losses incurred in a particular contract prior to May 31st are the responsibility of the company, and that is supposed to be divided 50-50.
Q. Now, I ask you once again, was it ever contemplated by Peat, Marwick that each division of the company would be responsible for the entire income tax consequences of continuing contracts that were partially performed prior to May 31, 1977?
A. No, never.
Q. And could there be an equal division if that were the case?
A. Couldn’t be an equal division because if you give one division contracts on half more accumulated profits through May 31, they certainly would have a larger tax liability when that contract is complete .

Moreover, under the trial court’s interpretation, as reflected by the 82%-18% division provided by the final order, Cobo reaps the benefit of large refunds through losses incurred before May 31 on contracts his Division completed thereafter, while Bared would incur the entire tax liability of any profitable contracts assumed by his Division. Since the entire purpose of the parties’ understanding was to achieve equality in line with their 50-50 interest in the corporation, the order below therefore plainly runs afoul of the basic rule that contracts should, if possible, be construed to avoid an unconscionable or oppressive result. See James v. Gulf Life Ins. Co., 66 So.2d 62 (Fla.1953); Bouden v. Walker, 266 So.2d 353 (Fla. 2d DCA 1972); Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514 (Fla. 2d DCA 1967), cert. denied, 210 So.2d 870 (Fla.1968).

In fact, the only thing which may be adduced in support of the judgment under review is that it reflected the “completed contract” method of tax accounting employed by the corporation. It is well-settled, however, that this method of accounting is simply that: an artificial, fictional means of reporting income to the IRS. Its use does not affect otherwise-existing legal rights to the distribution of profits or losses. See Dillard-Waltermire, Inc. v. Campbell, 255 F.2d 433 (5th Cir. 1958); Palmer v. Commissioner, 29 T.C. 154 (1957), affirmed, 267 F.2d 434 (9th Cir. 1959), cert. denied, 361 U.S. 821, 80 S.Ct. 66, 4 L.Ed.2d 66 (1959).

For these reasons, the final order under review is reversed and the cause remanded with directions to enter a judgment distributing 54.55% of the funds in dispute to the interest of Bared, and 45.45%, to that of Cobo.

Reversed and remanded.


text:
    Elton EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1554.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied Feb. 25, 1980.
    Elton Edwards, in pro. per.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ. •
   PER CURIAM.

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

Affirmed.


author:
PER CURIAM.
      LETTS, Judge,

text:
    Joyce Mathew HUBSHMAN, Appellant, v. Louis HUBSHMAN, Jr., Appellee.
    No. 78-1433.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1980.
    Rehearing Denied Feb. 29, 1980.
    H. C. Feige of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant.
    James H. Walden of Walden & Walden, Dania, for appellee.
   PER CURIAM.

After nineteen years of marriage and four children, the appellant-wife obtained a Mexican divorce in 1967, which incorporated a comprehensive separation agreement previously entered into by the parties. Thereafter, for a number of years appellee made substantial alimony payments to the appellant. However, prior to filing her suit in 1975, appellee’s financial situation changed dramatically, his alimony payments became erratic, and this litigation ensued.

Appellant filed a multi-count complaint in the Circuit Court of Broward County, which, in pertinent part, prayed that the Mexican decree be enrolled as a judgment of the Circuit Court and that the alimony arrearages be determined and appellant’s rights enforced. The trial court entered a judgment favorable to the appellant, but on petition for rehearing that judgment was vacated and a new judgment entered which is the subject of this appeal.

Appellant poses five points in her brief for our consideration, all of which we have fully treated. However, in our judgment only one of those points requires any extended discussion. In that point appellant contends the trial court erred in giving the appellee a credit of $56,305 toward future alimony for overpayments which the husband made prior to the institution of this suit.

In the judgment under review the trial court, among other things, directed the ap-pellee to pay to the appellant a maximum annual alimony payment of $24,000 for any year in which his adjusted gross income is $100,000 or more. Should his adjusted gross income fall below $100,000, appellee is directed to pay 40% thereof to appellant. The judgment, however, further provided that appellee should first apply toward his alimony obligation a credit of $56,305. The credit arose as a result of the court’s determination that during the years since the Mexican divorce appellee had paid appellant more alimony than was due under their separation agreement.

The evidence reflected that during the marriage and the early post marriage years appellee had been a very successful investment broker. Between 1967 and 1974 the court found appellee had paid $167,000 in alimony, when only $110,695 was due; thus the $56,305 credit. With regard to the overpayments, the husband testified that he often did not compute the exact amount due, but rather simply sent a check for the maximum amount which could be owed, i. e. $2,000 per month. When things got tight he began to compute the amount due. Referring to the more prosperous days when he was making overpayments, the appellee stated:

“My purpose was to give her the money. The money was that which she said she needed. In those days, I had a lot of money, Bob, and I didn’t care. I wanted the deduction but I didn’t care so much about money in those days.”

It is quite obvious from the testimony that neither of' the parties considered the over-payments as advances on future alimony payments. They were more in the nature of gifts. As appellee said, in those days he had plenty of money and he wanted the deduction. To allow a husband to offset-monthly alimony payments due in 1979 by overpayments generously made in 1970 without any agreement to that effect could leave an erstwhile wife destitute. That is no doubt why the general rule seems to be that “it is the obligation of a divorced husband to pay the ■ specified amounts according to the terms of the decree and he should not be permitted to vary these terms to suit his own convenience.”

Most of the cases which have considered a claimed set off against delinquent alimony or other support payments have to do with the husband’s advancing money for the wife’s debts or furnishing her with other goods or services. However, in Corbett v. Corbett, 116 Ariz. 350, 569 P.2d 292 (Ct.App.1977), the husband sought to set off against his indebtedness to his wife for past due alimony sums which he had previously overpaid in prior years. In rejecting such a set off the court said:

The trial court also found, however, that during that period respondent paid petitioner twice the amount he was obligated to pay for child support and alimony. But, since there had been no agreement between the parties that the excess payments were advanced as future alimony or child support, the court refused to permit respondent to set these payments off against arrearages accruing between 1970 and 1975. The evidence supports this decision.
Where one purports to pay an obligation prior to the time he is obligated to pay it, and the obligee receives his tender for the purpose of extinguishing all or part of the debt, then there is “payment.” Oklahoma Tax Commission v. Oven, 338 P.2d 1095 (Okl.1959). In the present case there was no agreement that the excess payments made by respondent between 1967 and 1970 were to satisfy or to constitute “payment” of his future support obligations. Absent such an agreement or acknowledgment this excess cannot be considered payment of respondent’s support obligations and may not be used to offset his support arrearages between 1970 and 1975. 569 P.2d at 294.

In the situation presented by this record we find no equities which would justify allowing appellee the credit in question. Accordingly, the judgment appealed from is affirmed in all respects except that portion thereof which allows appellee a credit of $56,305 for overpayments of alimony. As to the provision allowing the credit, the judgment is reversed and the cause is remanded with directions to delete that provision from the judgment.

AFFIRMED IN PART; REVERSED IN PART, with directions.

DOWNEY, C. J., and ANSTEAD, J., concur.

LETTS, Judge,

concurring specially.

I agree with the majority but think it worth-while to note a further reason why the husband is not entitled to any credit.

Under the intricate and confusing property settlement agreement, specifically Article III thereof, the husband was required to produce a federal tax return no later than April 30 of each year “if the maximum is not paid.” To me this language would require annual attention for any years in which the husband seeks a rebate especially under the prior paragraphs of said article which calculate varying amounts to be paid based on fluctuating income. The husband failed to produce these returns and should not now be heard to complain.

      . Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969).

      . Chappell v. Chappell, 253 So.2d 281 (Fla. 4th DCA 1971).


author: PER CURIAM. RIVKIND, LEONARD, Associate Judge,

text:
    James INGRAM, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-1638, 78-1693.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1980.
    Rehearing Denied March 5, 1980.
    Gary S. Israel and Richard W. Springer of Kohl, Springer, Springer & Garrison, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

LETTS and MOORE, JJ., concur.

LEONARD RIVKIND, Associate Judge, specially concurring in part and dissenting in part, with opinion.

RIVKIND, LEONARD, Associate Judge,

specially concurring in Case No. 78-1693 and dissenting in Case No. 78-1638.

Case No. 78-1693

I concur in the affirmance of the conviction for direct criminal contempt. Appellant was removed from the courtroom for disruptive conduct after repeated warnings by the trial judge. See Illinois v. Alien, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Electronic equipment was installed in a room adjacent to the courtroom in order that appellant could hear the proceedings while the trial for armed robbery continued. See Florida Rule of Criminal Procedure 3.180(b). At the conclusion of the trial the court held appellant in direct criminal contempt for his disruptive conduct committed in the presence of the court. Appellant contends (1) the judgment of contempt does not contain a sufficient recital of facts upon which it is based and (2) the contempt hearing should have been conducted before another judge. The record reflects strict compliance with Florida Rule of Criminal Procedure 3.830 including sufficient findings in the judgment of contempt. Regarding appellant’s second point, there is no requirement for disqualification of trial judges in cases of direct criminal contempt albeit the hearing is held at a later time rather than contemporaneous with the event. This is especially so where the trial judge does not become “personally embroiled” with a contemner. See Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977). While appellant was guilty of disruptive conduct during the trial, there was no personal affront to the court nor did the trial judge become personally embroiled with appellant. There is nothing in this record to show disqualification and a judgment of contempt is clothed with a presumption of correctness. Belote v. Slye, 206 So.2d 276 (Fla. 1st DCA 1968).

Case No. 78-1638

I respectfully dissent. Appellant should receive a new trial on the armed robbery charge because of the use of “Williams rule” evidence. See Williams v. State, 110 So.2d 654 (Fla.1959). Appellant was convicted for armed robbery the second time around. The first trial ended in a hung jury. During the second trial the State was allowed to introduce, over objection, evidence that appellant had participated in a burglary of a residence in Belle Glade on the same day of the armed robbery. The trial court permitted this evidence to rebut an “alibi defense” arising from the testimony of the sole defense witness, Betty Jean Motley. The robbery was committed in Belle Glade on May 10, 1977. Ms. Motley’s testimony as to that date was:

DIRECT TESTIMONY
Q. Now, we are here today concerning charges against your brother, robbery charges, robbery that occurred on May 10, 1977. To your knowledge, was your brother, James Ingram, living in Belle Glade at that time?
A. No, he wasn’t.
Q. Okay. And when was the last time that he lived in Belle Glade?
A. On about the second or third week of April, 1977.
Transcript 110
* * * * sfc sfc
Q. All right. When was the last time you had seen your brother there in Belle Glade at your mother’s home? A. April of 1977.
Transcript 112
* * * * * *
Q. I think you indicated that your brother had left Belle Glade. Do you know where he went at that time? A. He was leaving to go to Crestview, Florida.
* * * * * *
Q. When did, after he left, when did you next see your brother?
A. In August of 1977.
Q. Where was that?
A. In Belle Glade.
Transcript 113
CROSS-EXAMINATION
Q. Miss Motley, how far is it from Belle Glade to Crestview, Florida?
A. I don’t know.
Q. Never been there before?
A. I have been through there, but I have never been there.
Transcript 114
Q. Has your brother ever come to Belle Glade while your brother was living in West Palm Beach or in Riviera Beach?
A. Uh-huh.
Q. Did he come to visit you frequently in Belle Glade?
A. Yes.
Transcript 115
Q. Would you say once a week?
A. No.
Q. Twice a week?
A. No. No. About every other week or so.
Q. And when he came back from wherever he had been in August, 1977, he popped in for a couple of hours?
A. Beg your pardon.
Q. He came by your house, and stayed a couple of hours?
A. Yes.
Q. All right. Then he left. Did he leave Belle Glade, as far as you know?
A. As far as I know, yes.
Q. Uh-huh. Did you have any contact with your brother in May, 1977, at all?
A. Yes. He would call from Crestview.
Q. Call long distance?
A. Yes, he would.
Transcript 116
* * * * * *

The foregoing is the sum and substance of the “alibi” testimony. The only witness who identified appellant as the robber was Tom Williams, a customer in the convenience store during the robbery, who was acquainted with appellant and his family. Mr. Williams testified he had spoken to appellant two days prior to the robbery at appellant’s grandmother’s house in Belle Glade and that he believed Ms. Motley was inside the house at the time. Williams was the only witness who had identified appellant as the robber at the first trial. The burglary was an extra-added attraction to the State’s case at the second trial.

Defense counsel specifically objected to the introduction of testimony of a burglary which was unconnected with the instant offense. Counsel contends here as he did in the trial court that Ms. Motley’s testimony was not for the purpose of establishing an alibi but was to attack Mr. Williams’ credibility concerning his alleged contact with appellant during this period of time and his ability to recognize and identify appellant. Counsel for appellant further argued he had not filed a notice of alibi. See Florida Rule of Criminal Procedure 3.200.

At no time did any defense witness testify to appellant’s whereabouts on the date or at the time of the robbery. At no time did the appellant’s whereabouts on the date of the offense become a contested issue of fact before the jury.

I do not believe Ms. Motley’s testimony “opened the door” to the admission of evidence concerning the burglary and I believe that its introduction was contrary to the principles of law established by Williams v. State, supra, and its progeny. If the State believed that Ms. Motley’s testimony was to establish an alibi, it could have raised an objection because of non-compliance with Rule 3.200 and the trial judge could have excluded any alibi testimony. Chester v. State, 276 So.2d 76 (Fla. 2d DCA 1973); Cox v. State, 219 So.2d 762 (Fla. 3d DCA 1969). If Ms. Motley’s testimony can be characterized as alibi evidence its probative value is a “riddle wrapped in a mystery inside an enigma”. There was no necessity or justification to allow rebuttal evidence of an unconnected burglary. There was simply no alibi to rebut. The evidence tending to show that appellant was guilty of a burglary on the same date, a charge not covered in the information, could only have the effect of leading to the conclusion that appellant is a person likely from his criminal conduct or character to have committed the armed robbery for which he was being tried. The test is relevancy. “If found to be relevant for any purpose save that of showing bad character or propensity, then it [evidence of collateral crimes] should be admitted”. Williams v. State, 110 So.2d 654, 662 (Fla.1959). (bracketed material supplied). The Williams Court also stated: “The matter of relevancy should be carefully and continuously considered by the trial judge.” 110 So.2d at 663. The Williams rule was thoroughly analyzed in Green v. State, 190 So.2d 42, 46 (Fla. 2d DCA 1966), where the court stated:

We analyze Williams to mean that evidence of other offenses is admissible if—
—it is relevant and has probative value in proof of the instant case or some material fact or facts in issue in the instant case; and
—its sole purpose is not to show the bad character of the accused; and
—its sole purpose is not to show the propensity of the accused to commit the instant crime charged; and
—-its admission is not precluded by some other specific exception or rule of exclusion.

There are only two reported cases in Florida in which- Williams rule evidence was used to rebut an alibi defense. One such case is Thomas v. State, 132 Fla. 78, 181 So. 337 (1938), and the other is Hannah v. State, 356 So.2d 1340 (Fla. 3d DCA 1978). In Thomas, the Supreme Court affirmed the trial court’s admission of evidence of defendant’s participation in another robbery where defendant, several neighbors and friends testified defendant was a mile or so from the scene at the time in question. In Hannah the court found evidence of a collateral crime was relevant to a claimed alibi. The defendant had offered testimony that he was out of the State during a certain material time or period. A witness for the State testified that defendant participated in a robbery of his store on a date within said period. In Thomas and Hannah the relevancy was demonstrated. In the instant case Ms. Motley never testified that appellant was not or could not have been in Belle Glade at the time of the robbery. Her testimony is a far cry from an alibi defense.

No limiting instruction to the jury was given in the case sub judice either at the introduction of the evidence of a collateral crime or in the court’s final instructions. I might add that none was requested. In Green v. State, 228 So.2d 397, 398 & 399 (Fla. 2d DCA 1969) the court stated:

The testimony as to the prior crime was not commensurate with that concerning the crime in the instant case in view of the fact that at the introduction of that evidence no limiting instruction was given. Since the record fails to show it, perhaps none was given for the jury to consider. In any event, a limiting instruction as to the use of that testimony should have been given when such evidence was introduced. See Roberson v. State, 1898, 40 Fla. 509, 24 So. 474. In itself the mere volume of testimony concerning the prior crime would not necessarily make it a “feature” in the second case. However, when considered with the additional fact that no limiting instruction was given, the prior crime could well become a “feature instead of an incident” of the instant case in the jury’s mind. They could not be expected to know for what limited purpose the evidence of the prior crime was admitted.

I believe the evidence of a burglary became a “feature instead of an incident” of the instant case particularly when the jury was not told the reason for the admission of the collateral crime.

This court in Marion v. State, 287 So.2d 419, 421 (Fla. 4th DCA 1974) cautioned against use of Williams rule evidence unless it has substantial relevancy. The court stated:

. We cannot help but express our profound concern about the increasing reliance upon similar fact evidence in circumstances where such evidence has, at the most, “borderline relevancy”.

The later cases exclude evidence of other criminal acts unless the evidence is substantially relevant for some other purpose than that of bad character or criminal propensity. McCormick on Evidence, § 190. The author states:

Accordingly, some of the wiser opinions (especially recent ones) recognize that the problem is not merely one of pigeon-holing, but one of balancing, on the one side, the actual need for the other — crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other— crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
At page 453.

I recognize that the question of admissibility of this type of evidence is left to the sound discretion of the trial judge but it does not mean that the trial court’s decision is immune from review. United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969). The trial court must balance its tendency to unduly prejudice the accused against its tendency to prove a material fact. United States v. Phillips, 401 F.2d 301 (7th Cir. 1968). I have not overlooked nor do I believe it makes any difference that at the charge conference the appellant “requested” an alibi instruction which was given in the court’s final instructions to the jury. See United States v. Fierson, 419 F.2d 1020 (7th Cir. 1969).

In the case sub judice the probative value of the evidence concerning the collateral crime of burglary is greatly outweighed by its prejudicial effect and I believe its admission constitutes an abuse of discretion. The use of Williams rule evidence under these circumstances constitutes unfair surprise, confusion of issues and undue prejudice. If evidence of the unconnected crime of burglary has a “peg of relevance” then I submit it is “entirely obscured by the dirty linen hung around it.” I would reverse and remand for a new trial.

      . Mr. Williams failed to identify appellant as the robber during the investigation at the scene. He explained later that he was reluctant to identify appellant because he “hated to, you know, be the one that pinned it on him. . .".

      . See footnote 4 infra.

      . I do not suggest that, standing alone, the failure to give a limiting instruction, when not requested, would require a reversal. The Florida Evidence Code (not applicable to the instant case) provides: “2. When the evidence [other crimes] is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. After the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received, and that the defendant cannot be convicted for a charge not included in the indictment or information.” 90.404(2)(b)(2). (Bracketed material and emphasis supplied). It should be noted that the Code which provides for a limiting instruction when the evidence is admitted, if requested, further provides for such instruction at the close of the evidence but omits the words “if requested”. In both instances the mandatory “shall” is employed.

      . The Court: “ . All right. Now, getting back to the Court’s instructions on the law, previously when we tried this case we had a charge conference. Can we go by those same instructions, but in this case including the instructions on alibi?
      Defense Counsel: I don’t know technically whether it’s an alibi or not.
      The Court: Well, if you don’t want me to charge them on it I will not do it, but he’s called a woman whom I believe has testified that said he was in Crestview, Florida, at the time of this alleged offense, for whatever it’s worth.
      Defense Counsel: She didn’t say that, your Honor.
      The Court: No, I mean she just said he wasn’t in the Belle Glade area at the time of the, of the alleged robbery.
      Defense Counsel: To her knowledge.
      The Court: To her knowledge, but if you don’t want me to charge them on alibi, I won’t charge them. But if they believe her testimony or if her testimony creates a reasonable doubt in their mind, then, of course, they can acquit him. They don’t have to find that he was in fact in Crestview. Only that he was not in Belle Glade at the time of the alleged robbery.
      Defense Counsel: I guess it should be. I guess it should be instructed on, your Honor.
      The Court: Have you seen the instructions on alibi? Do you have a copy?
      Defense Counsel: Yes, your Honor. I was just thinking about it.
      The Court: I’m not trying to put words in your mouth. What I’m trying to do is, see when we come back I would like to have as much of the charge conference behind us as possible. We have already been through this to some extent.
      Defense Counsel: Well, the regular instructions, your Honor, says one of the defenses in this case is alibi, that is to say, that at the time of the alleged crime the defendant was not at the place of the crime.
      The Court: Right.
      Defense Counsel: And actually her testimony is not that, your Honor.
      The Court: Yeah, right.
      Defense Counsel: Her testimony really is that, as far as it goes, more to whether Tom Williams saw him during this period of time. Goes to his credibility than it does alibi. She really didn’t say he wasn’t there.
      The Court: Right. I understand. So you do not want me to charge them on alibi; your defense is mistaken identity in other words? Defense Counsel: I guess it should be instructed on, your Honor, because there is enough there.
      The Court: So you want me to charge them on alibi?
      Defense Counsel: Yes, your Honor.
      Transcript 123-125

      . United States v. Bradwell, 388 F.2d 619, 622 (2d Cir. 1968), citing State v. Goebel, 36 Wash.2d 367, 379, 218 P.2d 300, 306 (1950).


author: PER CURIAM. BERANEK, Judge,

text:
    Charles Edward BLEWS, Appellant, v. STATE of Florida, Appellee.
    No. 79-263.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Rehearing Denied March 5, 1980.
    Roy E. Black of Black & Denaro, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mary E. Marsden and Russell S. Bohn, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have carefully reviewed the record and the numerous points raised by appellant. Finding, as we do, that none of the points have merit, we affirm.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. This was a prosecution under Section 847.07(4)(c), Florida Statutes (1975), for the wholesale promotion of obscene materials. Since the materials in question were seized without a warrant, I believe a prompt judicial determination of probable cause should have occurred. I would reverse the conviction.


author: HOBSON, Judge.

text:
    Beatrice Ann MATTESON, Appellant, v. Bobby C. MATTESON, Appellee.
    No. 78-2139.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1980.

      Frederick J. Damski, Hauppauge, N. Y., for appellant.
    Norman Bie, Jr., Largo, for appellee.
   HOBSON, Judge.

Appellant Beatrice Matteson brings this appeal from a final order rendered in the Circuit Court of Pinellas County. The order awarded appellee Bobby Matteson permanent and sole exclusive care, custody and control of the parties’ two minor children. Appellant argues that under the guidelines of the Florida Uniform Child Custody Jurisdiction Act, Sections 61.1302 through 61.-1348, Florida Statutes (1977), the Florida court erred in assuming jurisdiction over the cause. We agree and reverse the final order.

The parties were granted a dissolution of marriage in Pinellas County, Florida on August 13, 1975. The final judgment awarded custody of the two minor children to appel-lee Bobby Matteson. Pursuant to a joint stipulation approved by the court, custody was subsequently awarded to appellant Beatrice Matteson on December 12, 1975. Soon afterwards, Beatrice Matteson moved with her children to the State of New York where they have continuously resided since.

In July, 1977, Bobby Matteson filed a motion with the Circuit Court of Pinellas County for visitation rights and enforcement of the executory provisions of the final judgment of dissolution pertaining to visitation rights. The ensuing order awarded him temporary custody of the children during certain specified periods of time each year. The order further stated that the children could be transported at appel-lee’s expense to Florida, unaccompanied, on a nonstop commercial airline flight.

At the time agreed on for the children’s summer visit, Beatrice Matteson received airline tickets from her former husband for the children’s transportation. She inquired of the airline as to the advisability of allowing a four-year old child and a nine-year old child to travel alone from New York to Florida. The airline advised her that it was disallowed and appellant so informed appel-lee and asked him to make more suitable arrangements. He did not respond.

In September, 1977, the Circuit Court of Pinellas County issued an order abating child support payments until such date as Beatrice Matteson complied with the previous visitation order.

In August, 1978, Bobby Matteson filed a motion for modification of the order approving the December, 1975, joint stipulation which gave custody to Beatrice Matte-son. The modification motion sought permanent custody of the minor children. Appellant submitted her affidavit in opposition to appellee’s motion; however, the Circuit Court of Pinellas County entered an order awarding permanent custody to Bobby Matteson. Appellant then filed an order to show cause on petition for determination of custody in Special Term Part V of the Supreme Court of New York pursuant to the Uniform Child Custody Jurisdiction Act. On December 15,1978, the New York Court entered an order granting Beatrice Matte-son temporary, exclusive care, custody and control of the children and further staying and restraining Bobby Matteson from removing the children from the jurisdiction of the court and from enforcing the October 5, 1978 order of the Pinellas County Circuit Court.

The jurisdictional problem presented in this case is facilitated by reference to the Uniform Child Custody Jurisdiction Act. Section 61.1308, Florida Statutes (1977):

61.1308 Jurisdiction.—
(1)A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state:
1. Is the home state of the child at the time of commencement of the proceeding, or
2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is availablé in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(c) The child is physically present in this state and:
1. The child has been abandoned, or
2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
(d) 1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
2. It is in the best interest of the child that a court of this state assume jurisdiction.
(2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

First, we note that the Act applies to modification orders as well as initial custody decrees. Second, subsection (l)(a) 1 and 2 cannot vest exclusive jurisdiction in Florida because both of the children have resided in New York for more than three years. Therefore, Florida is not the children’s “home state.”

Third, subsection (l)(b) 1 requires “significant connection” between the State of Florida and the children and their parents). As stated above, both children and the custodial parent have lived in New York for three years. Only Bobby Matteson resides in Florida. The fact that the original divorce decree and subsequent modification thereof was obtained in Florida does not constitute “sufficient connection” to satisfy the requirement of this subsection.

Fourth, under subsection (l)(b) 2, we recognize that the Matteson children have an established home in New York and it is there that the courts have access to school and medical records as well as information concerning their home life.

Subsection (l)(c) 1 and 2 does not apply to the instant case because the children are obviously not abandoned or in an emergency situation.

Although the Act states that the physical presence of the children in a state is not the deciding factor in and of itself, we have determined that the continual residence of the Matteson children with their mother in the State of New York over a three-year period and the willingness of the New York courts to assume responsibility in this matter, clearly satisfy the purpose and spirit of the Uniform Child Custody Jurisdiction Act.

For the reasons stated above, we hold that the Pinellas County Circuit Court should have declined jurisdiction over the instant case and erred in entering the final custody order. We, therefore, reverse the order from which this appeal is taken.

GRIMES, C. J., and OTT, J., concur.


author: ULMER, RAY E., Jr., Associate Judge.

text:
    Dianne HAMMOND, Appellant, v. Nan BICKNELL, a/k/a Mrs. James M. Bicknell, Appellee.
    No. 79-1278.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1980.

      Carl J. Robie, III, Sarasota, for appellant.
    No appearance for appellee.
   ULMER, RAY E., Jr., Associate Judge.

This is an appeal from a summary judgment entered for the plaintiff in a suit on an oral loan contract.

Nan Bicknell filed a complaint against Dianne Hammond in which she alleged that she had loaned Miss Hammond $5,000. She further alleged that she had made a demand upon Miss Hammond but that Miss Hammond had refused to repay the loan. In subsequent pleadings, Miss Hammond admitted the existence of her $5,000 debt to Mrs. Bicknell, but she denied that she presently owed the money, alleging that under an oral agreement she had made with Mrs. Bicknell, she was to make periodic payments over an unspecified period of time in accordance with her ability to pay.

Mrs. Bicknell moved for summary judgment. The trial court granted the motion and entered a final judgment in her favor. Miss Hammond thereafter instituted this timely appeal.

As always, in matters dealing with the propriety of summary judgment, we must begin our consideration with the rule that a court may grant summary judgment only when the pleadings, discovery and affidavits on file affirmatively demonstrate that there are no genuine issues of material fact left to be decided in the case. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla. 2d DCA 1979). After a careful review of the record in this cause and the relevant law, we have concluded that at the time the court granted Mrs. Bicknell’s motion, there were genuine issues of material fact. Accordingly, we hold that the court erred in granting the motion for summary judgment.

As we noted above, Miss Hammond raised the defense that she had agreed to repay the loan only as she had the financial ability to do so. Although we have been unable to locate any cases in Florida on the effect of such a promise on a contract, it appears that the majority view and the one which we think is the better rule is that this type of agreement creates only a conditional promise to pay so that the creditor is not entitled to recover on the promise unless the promisor is in fact able to pay the debt. Van Buskirk v. Kuhns, 164 Cal. 472, 129 P. 587 (1913); Draper v. Patterson, 156 Cal.App.2d 606, 319 P.2d 694 (1958); Tebo v. Robinson, 100 N.Y. 27, 2 N.E. 383 (1885); Lorenzo v. Bussin, 7 A.D.2d 731, 180 N.Y.S.2d 625 (1958); Annot., 94 A.L.R. 721 (1935); 17 Am.Jur.2d Contracts § 341 (1964). Consequently, Miss Hammond’s pleadings created an issue of fact as to whether she was to repay the loan on demand or according to her financial ability. Moreover, if the trier of fact were to find that she was to pay according to her financial ability, there would be a further issue of fact as to whether she presently had that financial ability.

In view of what we have said, we reverse the judgment of the court and remand the case for further proceedings consistent with this opinion.

GRIMES, C. J., and BOARDMAN, J., concur.

      . At the time of the hearing on Mrs. Bicknell’s motion, the record did not contain an affidavit executed by her, in which she attested to the truth of the allegations in her complaint. We note, however, that the complaint made no reference to any agreement concerning the time at which repayment of the loan was to occur. Also, although Mrs. Bicknell did file a request for admissions, asking Miss Hammond to admit that she was to repay the loan on demand, Miss Hammond refused to make this admission.

      . If we had adopted the minority view that a promise to pay when able creates an obligation to pay within a reasonable time, Annot., 94 A.L.R. 721 (1935), the result we have reached would not be different. There would still be issues of fact as to whether Miss Hammond promised to pay on demand or within a reasonable time, and, if the latter, what constituted a reasonable time under these circumstances.


author: DANAHY, Judge.

text:
    Donald W. STOWE, Petitioner, v. Margaret Elizabeth Williams SHULTS, as Personal Representative of the Estate of George D. Shults, Deceased, Respondent.
    No. 79-1389.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1980.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for petitioner.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for respondent.
   DANAHY, Judge.

Donald W. Stowe, defendant below, petitions for a writ of common law certiora-ri to review two orders of the trial court. One order denied the petitioner’s motion for a protective order. The second order struck the petitioner’s pleadings for failure to comply with an order compelling discovery. The motion for protective order was addressed to the sound discretion of the trial court and we find no abuse of that discretion on this record. Hence, there was no departure from the essential requirements of the law with respect to the disposition of that motion.

However, we-do find the trial judge abused his discretion when he struck petitioner’s pleadings. Such drastic action in this case constitutes a departure from the essential requirements of the law which requires us to quash that order. Petitioner had complied with other discovery orders to answer interrogatories and to respond to a request for admissions. He made a good faith argument that he was entitled to the requested protective order based on a tenable point of law. To strike his pleadings before he could seek review of the denial of his request for a protective order was not warranted. To assert a legal right cannot constitute grounds to strike the pleadings of a litigant.

Accordingly, we quash the order striking the petitioner’s pleadings and reinstate them for further proceedings consistent with this opinion. Certiorari is otherwise denied.

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

      . We are not presented with a case of flagrant or deliberate disregard of the court’s authority, nor with a case where the court made a finding of willful refusal to comply with its order. See Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979); Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978); Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970); Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967).


author: GRIMES, Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Patricia S. VERNON, Respondent.
    No. 79-1414.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1980.
    Anthony N. Deluccia, Jr., Fort Myers and George L. Waas, Tallahassee, for petitioner.
    James V. Lobozzo, Jr. of Hancock & Abies, Wauchula, for respondent.
   GRIMES, Chief Judge.

This opinion deals with a petition for review of an order of the Career Service Commission which concluded that the discharge of a state employee had been without just cause.

Patricia Vernon was dismissed from her job as a receptionist with the Department of Health and Rehabilitative Services in Wauchula, Florida. She filed a career service appeal seeking reinstatement and back pay. She also filed a claim for unemployment compensation benefits. During the unemployment compensation- proceedings, which occurred first, an appeals referee found that the evidence failed to establish that HRS had properly discharged her for “misconduct in connection with her work” as that phrase is used in Section 443.06(1), Florida Statutes (1977). He, therefore, concluded that she qualified for unemployment compensation benefits.

At Miss Vernon’s hearing before the Career Service Commission, her counsel requested the application of the doctrine of estoppel by judgment to prevent the parties from relitigating disputed issues of fact which they had presented to the Unemployment Compensation Appeals Referee. The commission granted this motion, thereby denying HRS the opportunity to litigate the issue of whether or not there was just cause for Miss Vernon’s dismissal.

The doctrine of estoppel by judgment is an equitable principle used to prevent the same parties in two separate suits from relitigating in the second suit those issues common to both suits which were decided in the first suit. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). Although it was a divorce case, the reasoning in Gordon is clearly applicable to the present situation. The question was whether the doctrine of estoppel by judgment would apply to prevent the plaintiff from asserting the ground of constructive desertion when the court had previously ruled against her on the issue of mental cruelty. The court found that although the facts relied on in both suits were essentially the same, the degree of proof required for mental cruelty was greater than that for constructive desertion. Therefore, the court held that the doctrine of estoppel by judgment would not apply to prevent litigation of the issue of constructive desertion.

Turning to the case at hand, we find that this court has defined the “misconduct” necessary to support the denial of a claim for unemployment compensation to be:

conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadver-tencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.
Hammett v. Florida Department of Commerce, Division of Employment Security, 352 So.2d 948, 949 (Fla.2d DCA 1977); Fredericks v. Florida Department of Commerce, Industrial Relations Commission, 323 So.2d 286, 288 (Fla.2d DCA 1975).

Wike v. Florida Department of Commerce, Division of Employment Security, 363 So.2d 1139, 1140 (Fla.2d DCA 1978). On the other hand, Florida Administrative Code Rule 22A-7.10(7)(b) defines “just cause” for purposes of the dismissal of a. career service employee as follows:

Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; insubordination; willful violation of the provisions of these or agency rules and regulations; conduct unbecoming a public employee, misconduct, habitual drunkenness, or conviction of any crime involving moral turpitude.

The standard for misconduct contained in the Unemployment Compensation Law is obviously higher than that for just cause under the State Career Service requirements. As a result, the finding by the Unemployment Compensation Appeals Referee that Miss Vernon’s acts did not constitute misconduct did not necessarily mean that those acts did not constitute just cause for dismissal as a career service employee. Clearly, then, under the rationale of Gordon the use of the doctrine of estoppel by judgment was inappropriate.

We reverse and remand to the Career Service Commission for a hearing at which the commission should take evidence on the issue of whether HRS dismissed Miss Vernon for just cause.

BOARDMAN and RYDER, JJ., concur.


author: HUBBART, Judge. SCHWARTZ, Judge

text:
    Reinaldo Manuel ALONSO and Industrial Fire & Casualty Insurance Company, Appellants, v. Jose Elpidio Rodriguez FERNANDEZ, Mirtha Rodriguez, Appellees. Jose Elpidio Rodriguez FERNANDEZ and Mirtha Rodriguez, Appellants, v. Reinaldo Manuel ALONSO and Industrial Fire & Casualty Insurance Company, Appellees.
    Nos. 78-1506, 78-1671, 78-2061, 79-87, 78-2081 and 79-60.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.

      Goodhart & Rosner, Miami, Broad & Cas-sel and Patricia Lebow, Bay Harbor Islands, for Alonso and Industrial Fire.
    Stabinski, Funt, Levine & Vega and Regina Zelonker, Miami, for Fernandez and Rodriguez.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   HUBBART, Judge.

This is a negligence action arising from a motor vehicle accident in which damages were sought for personal injuries and harm to personal property. The jury at the trial returned a verdict for the plaintiffs finding certain compensable property damages and PIP benefits, but denied any recovery for any other personal injuries based on a failure to meet the no-fault threshold. The defendants appeal and the plaintiffs cross-appeal.

The central issues presented for review center around the measure of damages in a negligence action for harm to personal property not amounting to a total destruction. For reasons which follow, we reverse and remand for a new trial on the main appeal. We further note that the plaintiffs have abandoned their cross-appeal upon oral argument in this cause, and, accordingly, we affirm on the cross-appeal.

I

The facts of this case are as follows. The plaintiff Jose Fernandez and his wife brought a negligence action arising out of a motor vehicle accident against the defendant Reinaldo Alonso and his insurer Industrial Fire and Casualty Company. The complaint sought damages for personal injuries and physical harm to the plaintiff’s truck not amounting to a total destruction. The defendants by their answer filed a general denial. At trial, however, the defendants admitted responsibility for the accident, but denied that the plaintiffs had suffered any compensable damages. The cause was, accordingly, tried by the jury on the issue of damages only.

It was established at trial that on January 10, 1977, the plaintiff Fernandez was driving a lunch truck which he owned in his business. Present in the lunch truck as passengers were his wife and a female employee. The defendant Alonso was driving an automobile on the same day insured by the defendant Industrial Fire when he negligently struck the front of the plaintiff’s lunch truck causing personal injuries to the plaintiffs and property damage to the lunch truck.

The evidence as to the extent of property damage to the lunch truck was as follows. The police officer investigating the accident testified that there was heavy damage to the front of the lunch truck at the scene of the accident. Photographs depicting this damage were introduced in evidence. The plaintiff Fernandez testified that his lunch truck required repair which cost him $2,342, that he rented a replacement lunch truck during the period of repairs at a cost of $210, and that the storage charges on the lunch truck while it was being repaired cost him $600. No evidence was ever presented as to the market value of the lunch truck before the accident, after the accident or after the repairs.

At the close of all the evidence at trial, the defendants moved for a directed verdict on the property damage claim on the ground that the plaintiff had failed to establish any evidence of compensable property damage in this case. The trial court denied the motion. Over the objection of the defendants, the trial court gave the following instruction to the jury [Fla.Stand. Jury Instr. (Civ.) 6.2(h)] on the measure of property damages in this cause:

“And, further, on the claim only of Mr. Fernandez-Rodriguez any damage to his vehicle. The measure of such damage is the difference between the value of the property immediately before the incident complained of and the value immediately thereafter. You shall also take into consideration any loss he sustained by being deprived of the use of his vehicle during the period required for its repair.”

The jury was also instructed on the no-fault personal injury threshold on the personal injury claims. The jury returned a verdict for the plaintiffs of $376.83 and $767.50 in PIP benefits, $2,180 on the property damage claim and no damages on the personal injury claims. A final judgment and an amended final judgment together with a judgment for costs were entered on this verdict. This appeal follows.

II

The first issue presented for review is whether a directed vercfict should have been given to the defendants at trial on the property damage claim. It is urged by the defendants that a directed verdict in their favor was required on this claim for failure of the plaintiff to present any evidence on the market value of the lunch truck before and after the accident or before the accident and after repairs. We cannot agree.

A

The law is clear that “ ‘[w]here a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for (a) the difference between the value of the chattel before the harm and the value after the harm, or, at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and “(b) the loss of use.” ’ ” Airtech Service, Inc. v. MacDonald Construction Co., 150 So.2d 465, 466 (Fla.3d DCA 1963); see also McMinis v. Phillips, 351 So.2d 1141 (Fla. 1st DCA 1977). This rule is applicable in a tort action involving a damaged motor vehicle so as to include, as a separate claim, loss of use damages amounting to the reasonable rental value of a substitute vehicle during the time the plaintiff’s vehicle is being repaired; this result is not changed by the fact that the vehicle is a pleasure automobile and no replacement vehicle is actually obtained during the period of repairs. Meakin v. Dreier, 209 So.2d 252 (Fla.2d DCA 1968).

B

In the instant case, the defendants were not entitled to a directed verdict of no damages on the plaintiff’s property damage claim. It is true, as urged by the defendants, that the plaintiff proved no compensa-ble damages as to a market value or repair expense loss on the damaged lunch truck. Contrary to established law, no evidence was ever presented as to the market value of the lunch truck before and after the accident or before the accident and after the repairs. Ordinarily, this failure of proof would entitle the defendants to a directed verdict on the entire property damage claim. Travelers Indemnity Co. v. Skyway Marine, Inc., 251 So.2d 327 (Fla.3d DCA 1971). The plaintiff did, however, prove up loss of use damages in the amount of $210 which was the actual expense of a replacement vehicle obtained by the plaintiff during the time his lunch truck was being repaired. As such, a directed verdict on the entire property damage claim did not lie because the plaintiff was entitled to go to the jury on the loss of use damages alone.

We recognize that the defendants were entitled to have the evidence as to the repair bill and storage costs stricken in this cause and jury instructed to disregard such evidence because, as explained above, the plaintiffs failed to establish a compensable claim for reasonable cost of repair damages. See Wilson v. Bailey-Lewis-Williams, Inc., 194 So.2d 293, 295 (Fla.3d DCA 1967). No such motion, however, was ever made by the defendants in this case and no error as to that issue is urged on this appeal.

Ill

The second issue presented for review is whether the trial court’s instruction to the jury on the measure of property damages in this cause was erroneous. The trial court instructed the jury herein that the measure of property damages was the difference in the market value of the lunch truck before and after the accident. There is absolutely no evidence in this record as to the market value of this lunch truck before and after the accident and, accordingly, such an instruction did not lie. Although the trial court also correctly charged the jury on loss of use damages, we believe the jury was clearly misled by the charge as a whole in view of the fact that an inflated verdict of $2,180 was returned which was greatly in excess of the $210 loss of use damages proved up in this case. As such, it was reversible error for the trial court to give the above erroneous jury instruction on the measure of damages. “An error in [a jury] charge as to the measure of damages for injuries alleged [in a tort action], which reasonably may have influenced rendition of a verdict for a larger amount than otherwise would have been determined upon, requires a new trial.” Atlantic Coast Line Railroad v. Saffold, 130 Fla. 598, 178 So. 288 (1938) (court syllabus paragraph 6); see also Bashaw v. Dyke, 122 So.2d 507 (Fla.1st DCA 1960); Bessett v. Hackett, 66 So.2d 694 (Fla.1953); § 59.041, Fla.Stat. (1977).

IV

Those portions of the final judgment and amended final judgment awarding the plaintiff $2,180 in property damages as well as the final judgment taxing costs against the defendant are reversed and the cause is remanded to-the trial court with directions to order a new trial on property damages only. In all other respects, the final judgment and amended final judgment are affirmed.

Affirmed in part; reversed and remanded in part.

SCHWARTZ, Judge

(dissenting).

To me, the result reached by the court in this case represents a minor, but unfortunate and not unusual, example of the triumph of the perceived technical demands of the law over common sense as expressed by the jury system. In a routine traffic accident, Fernandez’s lunch truck was damaged by the admitted negligence of the defendants. He testified it cost him $2,342 to repair the truck, and that he spent an additional $810 in storage and rental charges; the defendants introduced no contrary testimony on these issues. The jury awarded Fernandez the eminently reasonable sum of $2,180 for the damage to the truck. Like the trial judge, I see no reason for disturbing this result.

The majority holds that the verdict could not properly include the costs of repair because Fernandez did not testify as to the “market value” of his truck before the accident, after the accident and after the repairs. It is true that Travelers Indemnity Co. v. Skyway Marine, Inc., 251 So.2d 327 (Fla.3d DCA 1971), a case involving damage to a boat, states, citing no authority for the proposition, that such testimony is affirmatively required to support such a claim. But the only reason that the before-and-after market value of the property is even pertinent in a repair case is to preclude the plaintiff from reaping a windfall from the possibility that the repairs have enhanced the value of his property beyond what it was before the accident. I would therefore not apply the Skyway Marine rule in a motor vehicle case, simply because it is a matter of ordinary experience that repaired automobiles are just not worth as much as they were before they were damaged. Thus, it was not necessary for Fernandez to have told the jurors that this fact, which they already knew, applied to his lunch truck. If the very unusual occurs and the repairs have in fact enhanced the value of the property, it should be the burden of the defendant-wrongdoer to show that this is the case. See Boston Fish Market Corp. v. Universal Ins. Co., 388 F.2d 773 (1st Cir. 1968). The holding that, instead, the plaintiff must negatively demonstrate that such a windfall has not taken place is contrary to the principles ordinarily applicable to the mitigation or reduction of damages, e. g., Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33 (Fla.3d DCA 1979). It is ironic, indeed, that an exception should exist only in the situation to which the general rule most plainly should be applied. In sum, when a person makes the common and every-day decision to repair his car after it has been damaged in an accident, he ought to be able to claim the reasonable amount of those repairs, unless the defendant can show something to the contrary. That is what the jury obviously thought, and I think it was right.

The court also points out, however, that the instructions on the property damage issue did not contain a reference to the cost of repair. This is quite true. But it is also, quite irrelevant. The jury has returned a reasonable verdict, based upon evidence which it was entitled to consider, for damage which it could itself assess from the photographs and which was admittedly caused by the appellants’ negligence. It certainly does not, in the words of the harmless error statute, Sec. 59.041 Fla.Stat. (1977), “appear that the error complained of has resulted in a miscarriage of justice.” In fact, it clearly appears that justice has been done. We should affirm.

      . We are unpersuaded by the argument of the dissent that the holding of the Skyway Marine case, supra, although applicable to boats and all other chattels, should not be applicable to motor vehicles. We see no basis in ordinary experience for making such an artificial exception. Repaired motor vehicles, on the contrary, are often worth more than they were before an accident especially where the vehicle involved is relatively old and extensive repairs are made in which old engine and other mechanical parts are replaced by corresponding new parts. The same is true of repaired airplanes, boats and other such chattels. As such, it is both proper and fair that the plaintiff herein, in accord with the general law on damages, should bear the burden of proving the full measure of his property damages rather than resting entirely on a repair bill. McCormick on Damages, § 14 (1935). We have further examined Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33 (Fla.3d DCA 1979), find it inapplicable to this case, and decline to overrule the Sky-way Marine case as it is in accord with prevailing law.

      . We reject the dissent’s contention that the failure of the trial court to give a reasonable cost of repair instruction is irrelevant to the cause as the jury, in any event, returned a reasonable cost of repair verdict. We are unaware of any authority which authorizes a jury in reaching a verdict to apply a measure of damages which is outside the trial court’s instructions. Perhaps, as suggested, the jury may be permitted to transcend technical deficiencies in a trial court instruction, but, surely, they cannot be permitted to invent their own instruction. This is especially true in the instant case where such an instruction would have been entirely improper on this record because of the failure of the plaintiff to prove reasonable cost of repair damages. Travelers Indemnity Co. v. Skyway Marine, Inc., 251 So.2d 327 (Fla.3d DCA 1971); Airtech Service, Inc. v. MacDonald Construction Co., 150 So.2d 465, 466 (Fla.3d DCA 1963).
      Nor do we agree that a new trial based on proper jury instructions will be a mere formality, complete with rote testimony by the plaintiff, which will yield the same result as the verdict herein. Presumably such rote testimony, if elicited, will be subject to rigorous cross-examination by the defendants and may very well, upon deliberation, be rejected by the jury. Moreover, given the proper instructions on the measure of damages, a new jury, unlike the jury herein, might very well take a different view of this case. At any rate, we reject the notion that the result we reach herein is somehow an outrage to common sense or a waste of judicial resources; it is an eminently reasonable result which is dictated by the applicable law.

      . It may well be that the majority is right in suggesting in note 1 (which was inserted after the original version of this dissent), that there is no meaningful basis for distinguishing between boats and cars. If so, I would bite the bullet and, for the reasons which follow, simply overrule the Skyway Marine case as wrongly decided.

      . Indeed, the effect of a reversal in this case is to require an entirely new trial, which will be identical to the first one, with the sole exception that Fernandez will answer two additional boiler plate questions to reveal that his lunch truck had less value after being repaired than before the defendants’ vehicle negligently ran into it. As the owner of the vehicle, he was and is qualified so to testify. See Atlantic Coast Line R. Co. v. Sandlin, 75 Fla. 539, 78 So. 667 (1918). It seems unjustified to give the defendants another bite at the apple only because the plaintiff’s lawyer did not ask him these questions the first time.

      . This occurred because the standard jury instruction on the question, 6.2(h), does not include this measure of damages. An amendment to correct the deficiency is in the process of adoption.

      . There are those who contend that the system would be better served if detailed instructions were dispensed with and juries were told simply to “go out and do right.” While I do not subscribe to this view (and would probably be drummed out of the judges’ club if it were even suggested that I did), I do believe that when a jury is able to overcome the handicap of the charges’ legalese and to do right anyway, its verdict should be upheld.


author: BERANEK, Judge.

text:
    George Robert ANDRIA and Kirk Roberts, Appellants, v. STATE of Florida, Appellee.
    No. 78-2409.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Rehearing Denied March 5, 1980.

      Mark King Leban, Stephen H. Rosen of Rosen, Pórtela, Bronis & Angueira, Miami, and Nathan, P. Diamond, Coral Gables, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by defendant from the partial denial of a motion to suppress evidence. Appellant was arrested for the alleged burglary of a dwelling. Incident to his arrest, a search of his clothes and car disclosed illegal cocaine and marijuana. Defendant’s motion to suppress these items was denied in part. We find this ruling error and reverse.

Defendant was the lessee under a written lease of a single-family residence in the Town of Parkland, Florida. A dispute arose between the defendant and the lessor regarding timely payment of the rent and the condition in which lessee was keeping the premises. This dispute was an ongoing matter with various arguments on both sides being made. Eventually the landlord attempted to evict the tenant and the tenant made a partial payment of rent. An argument ensued over whether the partial payment of rent was accepted by lessor. It was also asserted that the tenant had paid the rent through the “last” month of the lease. In any event, some sort of an oral agreement was struck between the landlord and the tenant whereby tenant agreed to vacate the premises by some date prior to the technical expiration of the period for which he had paid rent. While the tenant was absent from the house on a particular day, the landlord changed the locks and moved the tenant’s belongings to the garage.

Throughout this entire period of time, the police officers of the City of Parkland were kept advised by the landlord of all developments. The officer who eventually arrested the defendant for burglary of the residence stated that the landlord told the police that defendant had no right to be on the premises and that he would be willing to sign a complaint if defendant were found there. On November 21, 1977, defendant was arrested after a Parkland police officer watched him enter the house through a window and exit through the front door.

The issue here is simply whether the police officer had probable cause to arrest the defendant for burglary of the residence. Probable cause existed if a reasonable man with the specialized training of a police officer and with the facts known to the arresting officer, would come to the conclusion that a crime is being or has been committed by the person to be arrested. Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977), and State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970). The trial court was called upon to decide whether the facts within the officer’s knowledge were sufficient in themselves to warrant a man of reasonable caution to believe this defendant was burglarizing the house. We find that here the information within the knowledge of the arresting officer negated rather than supported probable cause. Obviously, if a police officer saw some unknown individual breaking into a residence through a window this might well be reason to suspect criminal conduct or at least conduct requiring investigation. However, here the police officer knew before the arrest that the person was either the tenant or the former tenant of the residence who was engaged in a dispute over occupancy with the landlord. The police officer knew the locks had been changed and entry could not be gained in the normal manner. In addition, the police officer watched while the defendant entered the house via a window and exited empty handed by the front door which he opened from the inside.

When the officer approached, the defendant immediately told him that he was the tenant of the premises and requested that they contact the landlord to straighten out the matter. Instead of taking this reasonable step, the officer arrested defendant, handcuffed him, and forced him to the ground. We see no facts supporting a reasonable belief by the officer that the defendant was guilty of burglary of the dwelling. The dispute between the landlord and the tenant was of a civil nature involving the enforcement of an oral agreement. Probable cause did not exist for the arrest. The search incident thereto was improper and the seized contraband should therefore have been suppressed. McCombs v. State, 328 So.2d 870 (Fla. 4th DCA 1976).

The trial court’s order denying the motion to suppress is vacated and the matter remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE and HURLEY, JJ., concur.


author: MOORE, Judge.

text:
    Walter LUPTON, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida as assignee and subrogee of the rights of Sharon Smith, Appellee.
    No. 78-2606.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Edgar A. Brown of Lloyd & Brown, Fort Pierce, for appellant.
    Osborne Walker O’Quinn, Fort Pierce, for appellee.
   MOORE, Judge.

Defendant appeals a final judgment in a paternity action which, inter alia, determined him to be the father of a child born to Sharon Smith. He contends that the evidence was insufficient to support a finding of paternity. We reverse.

The Department of Health and Rehabilitative Services brought this action as as-signee and subrogee of the rights of Sharon Smith. During trial, Ms. Smith admitted having intercourse with another man, in addition to the appellant, during the medically recognized period when conception could have occurred. No evidence was adduced by the Department which eliminated the other man as the father, nor which pinpointed appellant as the father. Rather, the court was left to speculate which of the two men was the father of the child, which it may not do. Yarmark v. Strickland, 193 So.2d 212 (Fla. 3rd DCA 1966), cert. denied 201 So.2d 559 (Fla.1967). Compare Roe v. Macy, 363 So.2d 616 (Fla. 1st DCA 1978).

Accordingly, the final judgment is reversed.

DOWNEY, C. J., and LETTS, J., concur.


text:
    James L. FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 79-147.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

See: Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), rehearing den. 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977).

AFFIRMED.

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