author: NESBITT, Judge.

text:
    CITY OF SOUTH MIAMI and Dade County, Appellants, v. Lewis J. PYTEL and Pearl L. Pytel, his wife, Appellees.
    Nos. 81-72, 81-91.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.

      Robert A. Ginsburg, County Atty. and Thomas Goldstein, Asst. County Atty., Robert A. Glassman, Asst. Public Defender, for appellants.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

The City of South Miami (City) and Dade County (County) have each appealed final judgments in favor of the Pytels based upon Mr. Pytel’s claim of injury arising from a trip and fall on the City’s sidewalk. Both the City and County challenge the sufficiency of the evidence to support the judgment. For the reasons stated, we reverse upon the County’s argument but affirm with respect to the City.

Mr. Pytel had just left his physician’s office when, while walking on a South Miami sidewalk, he tripped and fell receiving various injuries. There were no eyewitnesses to the event. In describing his fall, Mr. Pytel stated: “Well, I knew that I had hooked onto something that was solid, that much I knew ....” On cross-examination, Mr. Pytel testified that after he had fallen and while he was lying on the sidewalk, he saw a metal pipe protruding therefrom. He also acknowledged a discrepancy between this testimony and his previous testimony at deposition that he did not see the object. It is uncontroverted, however, that there was a piece of metal protruding from the sidewalk at the time and place of Mr. Pytel’s fall.

The City of South Miami does not deny that it had a duty to maintain the sidewalk upon which Mr. Pytel fell. See Bush v. City of Miami, 175 So.2d 820 (Fla. 3d DCA 1965). However, the City urges that the issue of proximate cause should not have gone to the jury since there was no direct testimony that Mr. Pytel in fact tripped over the piece of metal piping. This clearly is not the law. Roach v. Raubar, 362 So.2d 84 (Fla. 3d DCA 1978); Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1976); Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA), cert. denied, 122 So.2d 408 (Fla.1960). Consequently, we must affirm the trial court’s judgment with regard to the liability of the City.

The County’s appeal presents a different question. During trial, Section 2-95.1.(6), Code of Metropolitan Dade County, which makes the County responsible for maintenance of traffic control signals, was read to the jury. The County contends, and we agree, that the duty of the County to maintain traffic control devices, standing alone, cannot make the County liable for a protruding metal pipe absent a showing that it was the owner or had control of the pipe or that it had operated some traffic control device connected to the protruding pipe. We hold, therefore, that the plaintiff utterly failed to establish that the County was responsible for the existence of the dangerous condition that caused the injury. Food Fair Stores of Florida, Inc. v. Patty, 109 So.2d 5 (Fla.1959); Harshbarger v. Miami Herald Publishing Co., 294 So.2d 41 (Fla. 3d DCA), cert. denied, 305 So.2d 208 (Fla.1974). Since the plaintiff failed to establish a prima facie case of negligence against the County, and the County had no responsibility to go forward from that juncture of the proceedings, it was the duty of the trial court to direct a verdict in the County’s favor. Baro v. Wilson, 134 So.2d 843 (Fla. 3d DCA 1961).

For the foregoing reasons, the judgment against the City of South Miami is affirmed, but the remainder of the judgment is reversed with directions to enter a directed verdict in favor of Dade County.

Affirmed in part and reversed in part with directions.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    GREATER CORAL SPRINGS REALTY, INC., a Florida corporation, Appellant, v. CENTURY 21 REAL ESTATE OF SOUTHERN FLORIDA, INC., a Florida corporation, Appellee.
    No. 81-651.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Smith & Mandler and Patricia M. Silver and Bernard S. Mandler, Miami Beach, for appellant.
    Douglas Paul Solomon, North Miami Beach, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

This appeal is from a final judgment which awarded appellant, Greater Coral Springs Realty, Inc., nominal and punitive damages, and denied its claim for lost profits.

Appellant, holder of .a Century 21 franchise, discussed the possibility of acquiring a second franchise in the Coral Springs area with a Century 21 employee, Sam Bruneo. Mr. Bruneo gave assurances that the next available franchise would be granted to appellant along with an exclusive in the Coral Springs area. Based upon this representation, appellant’s vice president made a deposit of two thousand dollars to reserve the franchise. Subsequently, Century 21 refunded appellant’s money and granted franchises in Coral Springs to other brokers.

Appellant filed a complaint seeking specific performance, injunctive relief and damages for breach of contract, and damages for fraud and deceit. Century 21 entered general denials and asserted the statute of frauds as a defense to the contract action. After a non-jury trial, the court found no evidence to support appellant’s claim for breach of contract, and dismissed all counts of the complaint except count IV, predicated on fraud and deceit. The final judgment awarded appellant one thousand dollars nominal damages, and fourteen thousand dollars punitive damages on the fraud claim.

The sole issue raised by this appeal is whether the trial court erred in failing to award appellant compensatory damages in the form of lost profits on the fraud claim. Under the circumstances of this case, we find no error in the measure of damages and affirm the judgment below.

The court’s finding that insufficient evidence was introduced to sustain the contract claim has not been challenged on appeal. Failure to establish the contract limited appellant to tort remedies for the fraud and precluded recovery of the “benefit of the bargain”:

In tort actions, the measure of damages seeks to restore the victim to the position he would be in had the wrong not been committed. In actions for breach of contract, the aim is not the mere restoration to a former position as in tort, but is the awarding of a sum which is equivalent to the performance of the bargain; the attempt is to place the plaintiff in the position he would be in if the contract had been fulfilled. McCormick, Damages, § 317, pp. 560-561 (1935).

Ashland Oil, Inc. v. Pickard, 269 So.2d 714, 723 (Fla. 3d DCA 1972). A party may not recover contract damages in a tort action. Thus, an award of lost profits, the equivalent of the performance of the bargain, was clearly not warranted under the facts of this case since the parties never reached an agreement. Based, however, on the wrongful conduct of Century 21’s employee in accepting a deposit from appellant and then selling the next available franchise to another broker, the court properly awarded nominal and punitive damages. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976); Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980); American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980). Accordingly, the judgment below is Affirmed.

      . Appellee Century 21 has not cross-appealed from the damage award.


author: PER CURIAM.

text:
    William Gale TURNER, Appellant, v. The STATE of Florida.
    No. 81-1035.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty.. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Santiago TORRES, Appellee.
    No. 81-1087.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.

      Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

The order of suppression is reversed in its entirety both because (a) notwithstanding they may not have been justified in arresting the defendant Torres for loitering and prowling, as they announced, see Thomas v. State, 395 So.2d 280 (Fla. 3rd DCA 1981), the apprehending police officers had founded suspicion to support his being temporarily detained until the victim of an attempted armed robbery arrived and identified him, State v. Delgado, 402 So.2d 41 (Fla. 3rd DCA 1981); Franklin v. State, 374 So.2d 1151 (Fla. 3rd DCA 1979), cert. denied, 388 So.2d 1113 (Fla.1980), after which there was probable cause for arrest; and (b) none of the matters involved in the order below— Torres’ fingerprint standards and those found at the scene of the offense, see State v. Tillman, 402 So.2d 19 (Fla. 3rd DCA 1981); a firearm discarded by his co-defendant as they were being stopped, see, State v. Ferguson, 411 So.2d 963 (Fla. 3rd DCA 1982); and the victim’s incourt identification, see United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); State v. Tillman, supra; State v. Maier, 378 So.2d 1288 (Fla. 3rd DCA 1979) — was the product of or legally related to the initial stop and therefore should not have been suppressed even if that detention were deemed invalid.

Reversed.


author: BASKIN, Judge.

text:
    GM DRUG COMPANY, a Florida corporation d/b/a Federal Discount, George F. Knox, Jr., in his official capacity as City Attorney of the City of Miami of the State of Florida; Laura McCarthy; Mark Matthes; J. Robert Stobs; Frank J. Hathaway; Nicholas H. Morley, individual citizens and residents of Dade County; Laura McCarthy, Inc., Wimbledon Racquet Club: Stob Bros. Construction Co.; Industrial Traffic Consultants, Inc., and Morley Realty, Inc., Florida corporations, Appellants, v. Alvin J. TAYLOR, in his official capacity as Secretary, State of Florida Department of Health and Rehabilitative Services, Max B. Rothman, in his official capacity as District Administrator, State of Florida Department of Health and Rehabilitative Services, District Eleven, and George Goldbloom and Emanuel Edelstein d/b/a MG Investment, a partnership, Appellees.
    No. 81-1307.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and David A. Gunter and Jeffrey M. Weissman, Miami, for appellants.
    Leonard Helfand, Miami, Richard, Licht-erman & Scher and Herbert Lichterman, Miami Beach, for appellees.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   BASKIN, Judge.

We reverse the trial court’s dismissal of appellants’ action seeking injunctive relief to abate an alleged nuisance maintained by appellees. The injury complained of is overcrowding in a shopping plaza caused by lines of food stamp applicants. An injunction was requested pursuant to section 60.-05(1), Florida Statutes (1979) and section 823.05, Florida Statutes (1979).

We hold that the cause should not have been dismissed without affording appellants leave to amend. See Quinlan v. Mott, 375 So.2d 589 (Fla. 5th DCA 1979); Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978); Lopez v. La Fuente, 343 So.2d 930 (Fla. 3d DCA 1977); Fla.R.Civ.Proc. 1.190. Cf. Shamhart v. Morrison Cafeteria Co., 159 Fla. 629, 32 So.2d 727 (Fla.1947) (plaintiff successfully demonstrated elements of nuisance; dismissal reversed).

Reversed and remanded for further proceedings.

      . Section 60.05(1) states: “[A]ny citizen of the county may sue ... to enjoin the nuisance, the person or persons maintaining it, and the owner or agent of the building or ground on which the nuisance exists.

      . Section 823.05 states: “[Wjhoever shall . . . maintain, own or lease any building . .. which tends to annoy the community ... shall be deemed guilty of maintaining a nuisance ... and the building . .. and contents are declared a nuisance.”


author: BASKIN, Judge. JORGENSON, Judge,

text:
    Ruth S. BOYD and John W. Boyd, her husband, Appellants, v. INTERNATIONAL FIDELITY INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 81-1326.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Michael A. Nuzzo, Hialeah, for appellant.
    Seligman & Sandler and Kenneth San-dler, Hollywood, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Appellants challenge a Final Judgment of Foreclosure entered against property they pledged as security for their son’s appearance on criminal charges. They contend that the entry of summary judgment was error because the bonding company failed to file the full statement required by section 903.14, Florida Statutes (1979), setting forth the amount of its bond and the source of the security. Counsel for appellants admits that his predecessor failed to present the issue either by affirmative defense or during the hearing which preceded the entry of summary judgment. He contends, nevertheless, that the trial court should have reopened the case after summary judgment had been entered because appellants’ new counsel wished to raise the lack of compliance with section 903.14 as “additional evidence.” We disagree.

A party may not defeat an entered summary judgment by altering previously filed pleadings, see generally Inman v. Club on Sailboat Bay, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977), especially when the matters it seeks to present by amendment were available prior to the entry of summary judgment. Appellants’ failure to support their motion for rehearing by furnishing the court with the statement alleged to be violative of section 903.14 and to assert their affirmative defense prior to the entry of summary judgment precludes them from raising the issue on appeal. Incomplete compliance with section 903.14 does not defeat the court’s jurisdiction; the defense of failure to comply with the statutory condition must be asserted or the condition is waived. See Dober v. Worrell, 401 So.2d 1322 (Fla.1981); Sotille v. Gaines Construction Co., 281 So.2d 558 (Fla. 3d DCA 1973), cert. denied, 289 So.2d 737 (Fla.1974); Fla. R.Civ.P. 1.140(b).

Affirmed.

JORGENSON, Judge,

dissenting.

I respectfully dissent.

The pleadings in this case affirmatively demonstrate that the mortgage upon which the summary judgment is based was given in support of a bail bond. In such cases, compliance with Section 903.14, Florida Statutes (1979) is a necessary prerequisite to the entry of summary judgment. United Bonding Insurance Company v. Tuggle, 216 So.2d 80 (Fla. 2d DCA 1968). The provision giving a surety the ability to maintain an action against an indemnitor in a bail bond case, as found in Section 903.14(2), Florida Statutes (1979), operates not only to place the parties on equal footing, United Bonding, supra, but is also analogous to the notice provisions as they are found in Section 768.28, Florida Statutes (1979) and must be alleged in the complaint. Cf. Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010, 1022 (Fla.1979).

I would reverse the summary judgment under review and remand to the trial court with directions to dismiss the complaint with leave to amend the complaint so as to allege compliance with Section 903.14, Florida Statutes (1979). Commercial Carrier Corporation v. Indian River County, supra, at 1023.

Since the complaint was insufficient as a matter of law, summary judgment should not have been granted.

      . 903.14 Contracts to indemnify surities.—
      (1) A surety shall file with the bond an affidavit stating the amount and source of any security or consideration which he or anyone for his use has received or been promised for the bond.
      (2) A surety may maintain an action against the indemnitor only on agreements set forth in the affidavit. In an action by the indemnitor to recover security or collateral, the surety shall have the right to retain only the security or collateral stated in the affidavit.


text:
    Joseph MAZER, Appellant, v. JEFFERSON STORES, INC., a Delaware corporation, Appellee.
    No. 81-1332.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.

      Shelding Golding, Fort Lauderdale, for appellant.
    Fuller & Feingold and Lawrence A. Fuller, Miami Beach, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court has the inherent power to impose the sanction of dismissal for a plaintiff’s willful failure to comply with its order, the lawfulness of which was challenged only by plaintiff’s adamant refusal to answer certain questions on deposition. See Surrency v. Winn & Lovett Grocery Company, 160 Fla. 294, 34 So.2d 564 (1948); Warriner v. Ferraro, 177 So.2d 723 (Fla. 3d DCA 1965).

Affirmed.


text:
    Roberto Murrillo DE FARNESIO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1392.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Bennett H. Brummer, Public Defender, and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Waddy v. State, 355 So.2d 477 (Fla. 1st DCA), cert. denied, 362 So.2d 1056 (Fla.1978).


text:
    Beatrice DAVIDSON, Appellant, v. FLORIDA NATIONAL BANK OF MIAMI, Guardian of the Property of Robert C. Davidson, Incompetent, Appellee.
    No. 81-1890.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Steven R. Berger, Miami, for appellant.
    William C. Lewis, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court’s determination that Mr. Davidson was incompetent to make a gift of the property in question and that therefore the guardian bank was entitled to possession of said property is supported by sufficient evidence. We may not substitute our judgment for that of the trial court on disputed questions of fact unless such determination was clearly erroneous. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972); Holland v. Gross, 89 So.2d 255 (Fla.1956); Neimark v. Abramson, 403 So.2d 1057 (Fla. 3d DCA 1981).

Affirmed.


text:
    ENGINEERED DISPOSAL SYSTEMS CORPORATION, a Florida corporation, Appellant, v. F. W. WOOLWORTH CO., a New York corporation and Albertha Miller, Appellees.
    No. 81-1905.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    London & Strock and Robert W. Weiss, Hollywood, for appellant.
    Thompson & Clark and Robert H. Schwartz, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.190(a); Charles Poe Masonry, Inc. v. Springlock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Allen v. Town of Largo, 39 So.2d 549 (Fla.1949); Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981); Pletts v. Pletts, 258 So.2d 297 (Fla. 3d DCA 1972).


author: FERGUSON, Judge.

text:
    Sidney Francis COBURN, Appellant, v. Ruth Lindberg COBURN, Appellee.
    No. 81-1932.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.

      David Paul Horan and Mark H. Kelly, Key West, for appellant.
    Randy Ludacer, Key West, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

The issue on appeal is whether the trial court abused its discretion in denying to appellant, a serviceman stationed outside the continental United States, a continuance of the final hearing on his wife’s complaint for dissolution of a marriage. We affirm in part and reverse in part.

The parties were married in 1964 in the state of Connecticut and moved to Florida in March of 1976 with their two minor children when appellant-husband, a United States serviceman, was assigned to the Key West military base. They lived there continuously until appellant was transferred to Europe in March of 1979. Appellee-wife and children went with him to Germany to reside until his European tour was completed. In January, 1980 appellee-wife left appellant and the children in Germany and returned to Connecticut. She remained there until March, 1980. In March, 1980 she returned to Florida and filed this action for dissolution of the marriage seeking custody of the children, alimony, attorney’s fees and costs. Appellant wrote a letter dated March 27,1980 to his wife’s attorney, filing a copy with the court, to the effect that the divorce was contested and that he wanted to be heard in defense of himself and the children. A letter from the Army’s Staff Judge Advocate office addressed to the court dated March 27, 1980 and filed April 9, 1980, requested a stay of proceedings on behalf of appellant “pursuant to Section 201 of the Soldiers and Sailors Civil Relief Act of 1940 (50 U.S.C.App. 421)”, (sic), for the reason that appellant was unable to afford round trip tickets to Key West for himself and the children, and that his military duties would not permit him to make the trip.

On motion of appellee, the court, on April 15,1980, appointed William Kuypers guardian ad litem to represent appellant’s interests. Months later Kuypers filed a motion to withdraw on conflict of interest grounds and was permitted to do so by court order dated November 18, 1980. Mark Kelly was appointed successor attorney ad litem the following day. Kelly filed a motion to stay proceedings until March, 1982, the month appellant would be returning to the United States. On March, 24, 1981 the court denied the motion to stay proceedings, without findings, and by the same order granted appellee leave to file an amended complaint. Final hearing was scheduled for the month of June, 1981. By stipulation the final hearing was rescheduled to July 23, 1981 and was heard without appellant’s presence — though Kelly appeared as attorney ad litem.

By final judgment recorded July 24,1981, the court ordered (1) award of permanent custody of the children to appellee and ordered appellant to return them to Key West, Florida no later than one week prior to the commencement of the fall school year, (2) payment by appellant of attorney’s fee to appellee’s attorney and to the attorney ad litem, (3) payment by appellant of $200.00 per month as child support. Appeal is taken from that judgment.

The statute relied upon by Appellant, 50 U.S.C.A.App. § 521, provides:

At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, . .. unless in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.

There is a dearth of Florida cases construing this federal act even though many cases are to be found from other jurisdictions, state and federal. The Florida cases are in accord that the act should be construed liberally in the soldier’s favor. DeLoach v. Caliban, 158 Fla. 639, 30 So.2d 910 (1947); Shayne v. Burke, 158 Fla. 61, 27 So.2d 751 (1946); Clements v. McLeod, 155 Fla. 860, 22 So.2d 220 (1945); Robbins v. Robbins, 193 So.2d 471 (Fla. 2d DCA 1967). The overwhelming majority of the cases of other jurisdictions, particularly the more recent ones, hold that a court in denying a stay of proceedings under the Act should make findings that the soldier’s ability to defend is not materially affected by military service, Esposito v. Schille, 131 Conn. 449, 40 A.2d 745 (1944), and that in the absence of such findings entry of judgment against the serviceman is improper. Stringfellow v. Whichelo, 102 R.I. 426, 230 A.2d 858 (1967); Mays v. Tharpe & Brooks, Inc., 143 Ga.App. 815, 240 S.E.2d 159 (1977); Mathis v. Mathis, 236 So.2d 755 (Miss.1970). A Virginia court, applying the statute very rigidly, recently held that in a proceeding on a former wife’s petition for custody of a son, the father, whose military service precluded him from being present, was entitled to a stay pursuant to the Act. Lackey v. Lackey, 222 Va. 49, 278 S.E.2d 811 (1981).

It is clear from a reading of the statute, and is supported by most of the cases, that the burden is on the party who opposes postponement of a trial because of military absence to show that the serviceman’s ability to conduct a defense is not materially affected, and that unless the trial court expressly finds as a matter of discretion that the serviceman is not hampered by his absence, and such findings are supported by the record, then postponement is mandatory. Pacific Greyhound Lines v. Superior Court of City and County of San Francisco, 28 Cal.2d 61, 168 P.2d 665 (1946) (en banc).

It is clear from the record that appellant was not opposed to a dissolution, and in his behalf the attorney ad litem stipulated to bifurcation of that issue from the other issues of custody, support, fees, and costs. The record is devoid of any evidence tending to show that appellant would not be disadvantaged in the proceedings by his military absence, particularly on the issue of custody, which was the emotional subject of several letters to the court.

This section allows a postponement only until such time as a defendant is unhampered by his military service to defend the action, Register v. Bourquin, 203 La. 825, 14 So.2d 673 (1943); Royster v. Lederle, 128 F.2d 197 (6th Cir. 1942). In this case appellant requested that the hearing on child custody aspects of the proceedings be delayed for eight months until he could return to the country. The fact of a delay in concluding litigation resulting from absence in military service does not justify denial of the statutory stay so long as there is the likelihood of injury to the civil rights of one in the armed services. See, e.g., Esposito v. Schille, supra.

We affirm that part of the judgment dissolving the marriage but for the reasons stated herein hold that the court abused its discretion in denying postponement of the proceedings as to the award of permanent custody of the children to the wife, permanent support, attorney’s fees and costs. We find the other issues raised to be without merit.

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


text:
    Samuel POLK, Appellant, v. The STATE of Florida.
    No. 82-386.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. See: LaBarbera v. State, 63 So.2d 654 (Fla.1953); Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943); Owens v. State, 308 So.2d 171 (Fla. 1st DCA 1975); 24 Fla.Jur., Pardon, Parole and Reprieve, § 29.


author: DAUKSCH, Chief Judge.

text:
    KELLER INDUSTRIES, INC., Appellant, v. Robert MORGART and Wilma Morgart, his wife, Appellees.
    No. 81-1082.
    District Court of Appeal of Florida, Fifth District.
    April 21, 1982.
    Hubert W. Williams of Robertson, Williams, Duane, Lewis & Ranson, P. A., Orlando, for appellant.
    Robert J. Felice of LaGrone & Felice, P. A., Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a products liability case. While we agree with appellant that there was error regarding the inconsistent interrogatory verdicts, we cannot reverse the judgment. The fault should not be laid upon the trial judge; rather, it must be placed upon the defendant’s trial attorney who led the court into error by approving, or failing to object to, the form of the verdict before it was submitted to the jury. Trial counsel also failed to bring the inconsistent verdicts to the attention of the trial court before the jury was discharged thus preventing the timely correction of the problem by the trial judge. For all we know, defendant’s trial counsel intentionally, for tactical reasons, chose not to bring the problem to the court’s attention. Counsel for appellant on appeal was not trial counsel. See Robbins v. Graham, 404 So.2d 769 (Fla. 4th DCA 1981); Department of Transportation v. Denmark, 366 So.2d 476 (Fla. 4th DCA 1979); Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973).

AFFIRMED.

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


text:
    Isaac LEVINE, Appellant, v. ROTH BROTHERS OF FLORIDA and American Mutual Insurance Co., Appellees.
    No. AB-280.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Isaac L. Levine, pro se.
    Kenneth L. Olsen of Miller, McKendree & Somers, Tampa, for appellees.
   PER CURIAM.

Claimant appeals an order denying a petition for modification of a compensation order. We affirm. On cross appeal, the employer/carrier appeal the award of attorney’s fees and costs. We reverse on the authority of Fox v. Badcock Co., 389 So.2d 699, 700 (Fla. 1st DCA 1980).

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


text:
    Lance Avery BALK, Appellant, v. STATE of Florida, Appellee.
    No. AE-53.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    James W. Reilley and Barry E. Witlin, Chicago, Ill., and Marlin M. Feagle, Lake City, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Grimes v. State, - So.2d - (Fla. 1st DCA 1982) [1982 FLW 690].

McCORD, ERVIN and SHAW, JJ., concur.,


author: McCORD, Judge.

text:
    Ralph E. PARIS, Appellant, v. Linda M. PARIS, Appellee.
    No. AG-236.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Bill A. Corbin, Blountstown, for appellant.
    Thomas B. Ingles, Lynn Haven, for appel-lee.
   McCORD, Judge.

This is an appeal pursuant to Fla.R. App.P. 9.130(a)(5) from an interlocutory order setting aside an earlier final judgment of dissolution of marriage. We affirm.

One week after the entry of the initial final judgment, Linda M. Paris (Wife) filed a timely motion to set aside the final judgment, alleging that the settlement agreement was procured through “fraud, deceit, misrepresentation, duress and coercement” and that she had not been provided “adequate representation by counsel.”

At the hearing on the motion, the wife testified that she went to Jim Austin’s (her husband’s attorney) office for the purpose of signing the initial settlement agreement. However, she would not sign it at that time because she was upset and because she wanted some changes made. Four to five days later, with certain changes desired by the wife having been made, the wife returned to Austin’s office to see the agreement but did not sign it there. Instead, she took the papers to another attorney, Mayo Johnston. Johnston, for his part, observed that at that meeting the wife was quite upset. Because she had expressed dissatisfaction with the agreement and because his law partner had represented both parties for many years, Johnston suggested that she get the advice of another attorney. Because she was upset and in disagreement with the settlement, Johnston asked her if there were some compelling reason for her to sign it. She indicated that there was, indeed, a problem, but he did not want to pursue the matter. However, he did observe that the agreement looked a little one-sided. She then returned to Austin’s office. Upon being told of the meeting with Johnston, Austin contacted another attorney for the wife, Herbert Sapp, and walked across the street with her to his office. As a result of this visit, the wife signed the settlement agreement.

Her expressed reason for signing the agreement was that her husband had threatened her that if she did not sign the agreement, he would tell the couple’s two minor children that one of their female cousins was, in fact, the wife’s daughter from a previous marriage. This fact is, indeed, true. He also threatened to tell the children about her involvement with “a friend of ours and anything public that he could do to ruin what reputation I (wife) had.” She also testified that her husband had said he would allow her to stay in the parties’ marital domicile and that his will had not been changed.

We agree with the husband’s contention that there must be clear and convincing evidence of overreaching, fraud, coercion, deceit, or duress in order to set aside the final judgment. Veiock v. Veiock, 391 So.2d 793 (Fla. 1st DCA 1980). However, the action of a trial court in granting or denying a motion to open, modify, or vacate a judgment is ordinarily within the sound judicial discretion of that court. Hartley v. Hartley, 134 So.2d 281 (Fla.2d DCA 1961). On these facts, we cannot conclude that the trial judge abused his discretion in finding that the husband’s acts amounted to duress and coercion.

The husband asserts that actionable duress cannot be predicated on the threat of an act which the person has the lawful right to do. Thus, he argues that if he did, in fact, threaten to inform the children of his wife’s allegedly illicit affair or of another child from a previous marriage, he did have the lawful right to do so regardless of any moral obligation. We agree that there can be no duress without there being a threat to do some act which the threatening party has no legal right to do— some illegal exaction or some fraud or deception. See Fuller v. Roberts, 35 Fla. 110, 17 So. 359 (1895); Kohen v. H. S. Crocker Co., 260 F.2d 790 (5th Cir. 1958); 25 Am. Jur.2d, Duress & Undue Influence, § 5. These principles, however, do not serve to encompass the husband’s statements, for his threats could constitute extortion. See § 836.05, Fla.Stat. (1981):

Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property, or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, ... shall be guilty of a felony of the second degree....

Surely, the husband’s statements would constitute a threat of injury to the wife’s reputation, expose her to disgrace, and expose a family secret, all for the purpose of securing the pecuniary advantage of a one-sided property settlement agreement. Thus, his putative statements constitute an illegal act sufficient to support a finding of duress and coercion.

Husband also argues that the wife’s access to attorneys prevents her from obtaining the relief sought. Ordinarily, the opportunity to consult an attorney is a factor for the court to consider and weigh along with other evidence in a case involving the allegation of duress. See Corporacion Peruana de Aeropuertos y Aviacion v. Boy, 180 So.2d 503 (Fla.2d DCA 1965). However, the mere fact that the wife had access to attorneys, when considered in light of the other factors involved in this case, does not necessarily defeat her claim. The record affirmatively demonstrates that any legal advice sought was of a temporary and minimal sort. Further, she stated that she did not wish to impart any information regarding the husband’s threats to these attorneys because of that information’s scandalous and private nature. As such, we find nothing unusual in her keeping this information to herself. In so doing, she deprived herself of a full and meaningful discussion with an attorney on the merits of her cause.

Considering these facts in the light most favorable to the trial court’s ruling, as we are bound to do, we have no alternative but to affirm the trial court’s setting aside of the earlier judgment of dissolution of marriage.

AFFIRMED.

ERVIN and SHAW, JJ., concur.

      . Her reason for subsequently attacking the final judgment was that her former spouse reneged on his promises and informed the parties’ minor children of their half-sister and the wife’s alleged affair.

      . In reaching this conclusion this Court is not implying that the husband is guilty of the criminal act of extortion.


text:
    Aldo REMO, Appellant, v. GENERIX DRUG CORPORATION, a Florida corporation, Appellee.
    No. 80-2214.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Michael W. Ullman of Ullman & Ullman, P. A., North Miami Beach, for appellant.
    Richard A. Goetz of Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauder-dale, for appellee.
   PER CURIAM.

AFFIRMED on authority of Padgett v. First Federal Savings & Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979).

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Arthur Lee HARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-459.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.

      Richard L. Jorandby, Public Defender, and Jack Goldberger, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, Arthur Lee Harley, contends that the trial court erred in denying his motions for discharge for failure to bring him to trial pursuant to the speedy trial rule.

Harley was arrested March 9, 1980. On May 23,1980, he filed a motion for a mental examination pursuant to Section 925.-10(l)(a), Florida Statutes (1979), and Florida Rule of Criminal Procedure 3.210, which motion was granted June 5, 1980. On August 27, 1980, Harley filed a demand for speedy trial. Thereafter, on October 10, 1980, the court entered an order finding Harley competent to stand trial. On December 30, 1980, Harley filed a motion for continuance, and the court granted the motion. On January 9, 1981, Harley filed a motion for discharge pursuant to Rule 3.191(a)(2) on the ground that more than 60 days had passed since the August 27th demand had been filed. A subsequent motion for discharge pursuant to Rule 3.191(a)(1) on the ground that 180 days had passed since Harley’s arrest was filed January 22, 1981. The trial court entered an order on March 18, 1981, denying Harley’s “motion for discharge.” Though the order is silent, we assume it pertains to both Harley’s motions because memoranda of the parties filed with the circuit court pertain to both motions.

We hold the motion for discharge pursuant to Rule 3.191(a)(1) was properly denied because the 180 day period for bringing Harley to trial had not expired when he filed his motion for discharge on January 22, 1981. The 180 day period commenced running on March 9, 1980, when Harley was arrested. The period was tolled when Harley filed his motion for a mental examination because, while that motion was pending, Harley was not available for trial. Isley v. State, 354 So.2d 457 (Fla. 1st DCA 1978). The time began to run again on October 10,1980, when the court entered its order finding Harley competent to stand trial. However, on December 30, 1980, the court granted Harley’s motion for continuance because his counsel would not be available for trial. Thereafter, Harley’s speedy trial rights were constitutional, i.e., he was entitled to be brought to trial within a reasonable time; Rule 3.191(a)(1) no longer applied. Butterworth in and for Broward Cty. v. Fluellen, 389 So.2d 968 (Fla.1980). Thus, when Harley moved for discharge on January 22, 1981, on the ground that the 180 day speedy trial time had expired the motion was not well founded and was properly denied.

If Harley’s demand for speedy trial filed August 27, 1980, were a proper demand the state would have been required to bring him to trial no later than the 60th day following August 27th. However, at the time the demand was filed, proceedings for a mental examination pursuant to Florida Rule of Criminal Procedure 3.210 and Section 925.10(l)(a), Florida Statutes (1979), were pending. The record shows that Harley was not available for trial, Isley v. State, supra, and therefore his demand for speedy trial was spurious (see State v. Wright, 389 So.2d 289 [Fla. 3d DCA 1980]) and should have been stricken rather than denied. We hereby modify the order of March 18, 1981, by including therein the provision that Harley’s August 27, 1980, demand for discharge is spurious and is therefore stricken.

AFFIRMED AS MODIFIED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: DELL, Judge.

text:
    WEST AMERICAN INSURANCE COMPANY, Appellant, v. Wayne L. RAUCH and G. V. Kullgren d/b/a P. D. I. Center, a partnership, Appellees.
    No. 81-592.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.

      Robert C. Pickford of Parkhurst, Pickford & Carlson, Fort Lauderdale, for appellant.
    Edna L. Caruso, West Palm Beach, and Borden R. Hallowes, Boca Raton, for appel-lees.
   DELL, Judge.

Appellant, West American Insurance Company, (West American) appeals from a final judgment in favor of appellees, Wayne L. Rauch and G. V. Kullgren d/b/a P. D. I. Center, a partnership (PDI), and asserts that the trial court erred in granting a partial summary judgment on liability.

PDI purchased a Special Multi Peril insurance policy from West American. The policy insured a warehouse that PDI had under construction. The policy insured against, “all risk of direct physical loss,” but contained the following exclusions:

VI. EXCLUSIONS

C. Loss caused by, resulting from, contributed to or aggravated by any of the following:

1. earth movement, including but not limited to earthquake, landslide, mudflow, earth sinking, earth rising or shifting;
2. flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not;
3. water which backs up through sewers or drains;
4. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors, or through doors, windows or any other openings in such sidewalks, driveways, foundations, walls or floors;

The undisputed testimony shows that by April 24,1979, PDI had completed the foundation, floor and walls of the warehouse but had not completed the roof. On April 24th and 25th, heavy rains fell, came in through the open roof and poured out of the building through the doorway openings into a drainage ditch located about three to five feet from the building. The water eroded the soil between the drainage ditch and the footer and caused the collapse of the footer and the north wall of the building. PDI filed a claim with West American but West American denied coverage citing the exclusions set out above.

West American presents four points on appeal: first, that the trial court should have denied the motion for partial summary judgment because of conflicts in the pleadings and facts; second, that the order failed to comply with Florida Rule of Civil Procedure 1.510(d) because the trial court did not specify which facts were not in controversy; third, that the trial court misinterpreted the language of the policy; and last, that the trial court should have quashed the affidavit of an expert witness which was filed by PDI in support of its motion for partial summary judgment.

West American bases its first argument on PDI’s denial of a request for admission and failure to answer an affirmative defense. The request for admission was a broad conclusory statement of several facts. Because of the content of the requested admission, PDFs denial did not create a material issue of disputed fact. West American also asserts that PDFs failure to formally deny its affirmative defense of no coverage created an issue of material fact which prohibited the entry of the partial summary judgment. PDI by affidavit and depositions contradicted or denied West American’s affirmative defense and met the requirements set forth in Johnson & Kirby, Inc. v. Citizens National Bank of Fort Lauderdale, 338 So.2d 905 (Fla. 3d DCA 1976). A summary judgment must be decided upon evidence and not pleadings. Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956).

Secondly, West American argues that the trial court failed to comply with Florida Rule of Civil Procedure 1.510(d). Appellant has failed to cite any cases from the Florida Appellate Courts and we have found none that have determined the requirements of Florida Rule of Civil Procedure 1.510(d) when the court has disposed of the entire issue of liability by summary judgment. Looking to the Federal Rules of Civil Procedure, we find that Rule 56(d) contains almost identical requirements as those set forth in Florida Rule of Civil Procedure 1.510(d). The Court of Appeals for the Sixth Circuit interpreted Rule 56(d), supra, and held:

However, Rule 56(d) is designed for those situations in which issues still remain to be litigated. Such is not the case here. The district court, in granting the motion for summary judgment, implicitly reserved only the question of damages. Under Rule 56(c) no order listing the remaining issues to be litigated was required. Lytle v. Freedom International Carriers, S. A., 519 F.2d 129, 133 (6th Cir. 1975).

Accordingly, the trial court’s order met the requirements of Florida Rule of Civil Procedure 1.510(d).

In its third point, West American contends that the trial court misinterpreted the language of the policy because the damage was caused by “surface water” or “earth movement.” West American presented testimony from several witnesses with expertise in the fields of construction and engineering. They agreed that the rain falling through the open roof caused water to pour out of the building into the drainage ditch and that the water eroded the soil causing the building to fail. None of these witnesses was qualified as an expert in the interpretation of insurance policy language. PDI presented the only expert testimony that defined the meaning of the language contained in the exclusionary provisions of the policy and more particularly the meaning of the terms “surface water” and “earth movement.” Pouring water, channeled through the doorway openings and into the drainage ditch caused the erosion of the soil and in turn the damage to the building. No dispute existed as to the manner in which the loss occurred and no dispute existed as to the interpretation of the policy language since the plaintiff presented the only competent evidence on this point. The trial judge correctly found as a matter of law that the loss was within the coverage provided by the policy.

We do not find any merit in appellant’s last point on appeal. The appellees’ expert was well qualified in the field of interpretation of the insurance policy which is the subject of this appeal. Accordingly, we affirm the judgment.

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.


text:
    Wanda S. PURL, Appellant, v. Eldon E. PURL, Appellee.
    No. 81-841.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Lee B. Sayler, Jupiter, for appellant.
    No appearance for appellee.
   PER CURIAM.

The order of the trial court requiring the wife to pay the husband’s attorney’s fee is reversed. Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980).

LETTS, C. J., and BERANEK and HURLEY, JJ., concur.


text:
    Barry C. EMERSON, individually and Barry C. Emerson, as personal representative of the Estate of Susan Chenowith Emerson, and Barry C. Emerson, as parent and natural guardian of the survivors of Susan Chenowith Emerson, Michael S. Emerson and Christine A. Emerson, Appellants, v. BANKERS AND SHIPPERS INSURANCE COMPANY, a foreign corporation, Anthony L. Travers, Manatee Trucking Company, a Florida corporation and The National Construction Corporation, a Florida corporation, Appellees.
    No. 81-931.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    William deForest Thompson, Fort Laud-erdale, and Edna L. Caruso, West Palm Beach, for appellants.
    Frank E. Maloney, Jr., Fort Lauderdale, for appellee, National Const.
    Charles T. Kessler of Pyszka & Kessler, Fort Lauderdale, for appellee, Bankers and Shippers Ins. Co.
   PER CURIAM.

Affirmed. See, Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974).

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: BERANEK, Judge.

text:
    Germaine VALOIS, Appellant, v. GULFSTREAM PARK RACING ASSOCIATION, INC., and American Totalisator Company, Inc., Appellees.
    No. 81-1078.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.

      Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
    David S. Romanik of Ladefeld & Roman-ik, Hollywood, for appellees.
   BERANEK, Judge.

Appellant seeks review of a dismissal with prejudice of her second amended complaint. We affirm.

Appellee, Gulfstream Park Racing Association, Inc., owns Gulfstream Park Racetrack, a pari-mutuel facility operating under Chapter 7E, Florida Administrative Code. The pari-mutuel machines located therein are owned, managed, maintained, and controlled by appellee, American Tota-lisator Company, Inc. The complaint herein alleges that appellant placed several perfecta bets for which she gave appellees either money or a previous winning ticket. Appel-lees, however, failed to deliver the tickets representing the bets placed by appellant. This failure was due to a malfunction in the pari-mutuel machine at the particular terminal appellant was using. Although the complaint essentially alleges a single set of facts, it seeks a recovery for breach of contract, negligence, negligent misrepresentation, and violation of a statutory duty.

There appears no Florida precedent in this area, and appellees urge that we adopt the New York view which holds there is no contractual relationship between the purchaser of a pari-mutuel ticket and the racing association. In New York the contract represented by the ticket is one between the individual bettor and the other participants in the pari-mutuel pool. See Holberg v. Westchester Racing, Ass’n., 184 Misc. 581, 53 N.Y.S.2d 490 (Sup.Ct., App.Term 1945). Under this theory, there was no contract between the parties in this case.

We note further that Rule 7E-6.07(4), Florida Administrative Code, specifically provides that “[p]ayment of winning parimutuel tickets shall be made only upon presentation and surrender of such tickets. No claims shall be allowed for lost or destroyed winning tickets.” This is also consistent with the New York approach that there can be no valid pari-mutuel wager without a pari-mutuel ticket which is absolutely essential to the bettor’s right to collect winnings from the pari-mutuel pool. See Carr v. State, 15 A.D.2d 709, 223 N.Y.S.2d 229 (3d Dep’t 1962); Bastone v. Yonkers Racing Corp., 79 Misc.2d 240, 360 N.Y.S.2d 149 (Sup.Ct.App.Term 1973); Hochberg v. New York City Off-Track Betting Corp., 74 Misc.2d 471, 343 N.Y.S.2d 651 (Sup.Ct.1973), aff’d, 352 N.Y.S.2d 423 (1st Dep’t 1974); Shapiro v. Queens County Jockey Club, 184 Misc. 295, 53 N.Y.S.2d 135 (Mun.Ct.1945). It is undisputed that appellant never had a ticket or a winning ticket. As such, appellees maintain that she had no right to demand payment. Although there is no controlling Florida case precedent, it appears the Legislature addressed the problem in a statute effective June 23, 1981. This new statute, Section 550.023, Florida Statutes (1981), provides as follows:

Limitation of civil liability. — No per-mittee conducting a racing meet pursuant to the provisions of this chapter; no member of the Florida Pari-mutuel Commission, division director, or employee of the division; and no steward, judge, or other person appointed to act pursuant to this chapter shall be liable to any person, partnership, association, corporation, or other business entity for any cause whatsoever arising out of, or from, the performance by such permittee, commission, director, employee, steward, judge, or other person of his duties and the exercise of his discretion with respect to the implementation and enforcement of the statutes and rules governing the conduct of pari-mutuel wagering, so long as he acted in good faith; however, the provisions of s. 550.07 shall not be affected by the provisions of this section. This section shall not limit liability in any situation in which the negligent maintenance of the premises or the negligent conduct of a race contributed to an accident; nor shall it limit any contractual liability.

We believe this statute will control future suits of this sort, but we refrain from any decision regarding its direct application herein because Section 550.023, Florida Statutes (1981), was never brought to the trial court’s attention, and for that matter, was not relied upon by the parties before this court.

We thus face the question of deciding this case as one of first impression for a very limited time. We construe Section 550.023, Florida Statutes (1981), as declarative of the existing public policy of this State and not as a change in the law. The statute obviously restricts and limits civil liability in this situation, and based upon the previously cited New York authorities and the public policy as contained in Section 550.023, we conclude the trial court correctly dismissed the complaint.

AFFIRMED.

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


text:
    Herbert BOYER and Eleanor Boyer, Appellants, v. Michael A. SULLIVAN and Colleen O. Sullivan, and Prestige Realty, Inc., A Florida corporation, Appellees.
    No. 81-1156.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Matthew J. Schaefer of Hollander & Associates, P. A., Hollywood, for appellants.
    Mark F. Butler of Ellis, Spencer, Butler & Kisslan, Hollywood, for appellees Michael A. Sullivan and Colleen O. Sullivan.
   PER CURIAM.

AFFIRMED. We find no merit in either issue raised by appellants on appeal. The trial court determined by summary judgment that the appellees, Michael A. Sullivan and Colleen O. Sullivan, had acted in good faith in attempting to secure financing in order to conclude a purchase and sale agreement with the appellants. The Sullivans submitted uncontradicted proof to the trial court establishing the validity of their claim. The appellants submitted no evidence to contravene the Sullivans’ claim. Under these circumstances we believe the trial court acted properly in granting summary judgment.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    Randy TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1863.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1978).

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


author: HERSEY, Judge.

text:
    SUN TECH INC. OF SOUTH FLORIDA and Robert Sackett, Appellants, v. FORTUNE PERSONNEL AGENCY OF FORT LAUDERDALE, et al., Appellees.
    No. 81-2367.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.

      Jack M. Sobel of Virgin, Whittle & Gar-bis, Miami, for appellants.
    Marshall G. Curran, Jr., of Spear, Deuschle & Curran, P.A., Fort Lauderdale, for appellee-Fortune Personnel Agency of Fort Lauderdale.
   HERSEY, Judge.

This case involves a non-final order refusing to dissolve a temporary restraining order. Since a temporary restraining order is in the nature of an injunction, the order is subject to interlocutory appeal pursuant to Rule 9.130(a)(3)(B), Florida Rules of Appellate Procedure.

Appellee, Fortune Personnel Agency, filed suit against appellant, Sun Tech Inc., and its two principals, former employees of Fortune, alleging intentional interference with a business relationship, conversion and violation of an agreement not to compete. Appellee also sought a temporary restraining order without notice to enjoin appellants from using any documents or confidential information acquired while employees of Fortune, to restrain appellants from soliciting Fortune’s clients, and to order the return of any documents belonging to Fortune appropriated by appellants.

On March 4, 1981, the trial court issued a temporary restraining order without notice as requested by Fortune. Subsequently, on March 10, 1981, after proper notice, there was a hearing on Fortune’s motion for preliminary injunction. Appellants never had an opportunity to present evidence because Fortune utilized all of the time reserved for the hearing. Nevertheless, on March 24, 1981, the trial court entered another temporary restraining order which was a modified version of the initial one. A continuation of the preliminary injunction hearing was set for May 19, 1981, but was cancelled by Fortune. Thereafter, the matter was not scheduled until appellants had two hours set aside for hearing on October 6, 1981. Again, appellants did not have an opportunity to present evidence. Appellants then filed a motion to dissolve the temporary restraining order, which motion was denied by the trial court. Hence this appeal.

A temporary restraining order may, under specified circumstances, be granted without notice to the adverse party. Such an order expires within ten days after entry, but may be extended for another ten days with the consent of the adverse party or for good cause shown. Unless consented to, the reasons for an extension must be specified in a written order. When a temporary restraining order is granted without notice, the motion for a preliminary injunction should be set for hearing at the earliest possible time. When the motion is heard, the party who obtained the temporary restraining order must proceed with the motion for preliminary injunction; otherwise, the court must dissolve the temporary restraining order. Fla.R.Civ.P. 1.610. Thus, a temporary restraining order expires within a maximum of twenty days after its entry irrespective of any hearing on the motion for preliminary injunction.

In the instant case, a temporary restraining order, without notice, was entered on March 4, 1981. Fortune’s motion for preliminary injunction was heard on March 10, 1981. Then on March 24, 1981, pursuant to the hearing, the trial court vacated the initial restraining order (which had already expired) and entered another temporary restraining order. According to the second order “there was insufficient time to hear all the evidence to enable [the] court to make a final determination on [the] issuance of a Preliminary Injunction and [the] matter may be reset to continue the hearing.” Although this subsequent restraining order was issued after notice, appellants did not have an opportunity to present opposing evidence. The question which arises at this point is whether the second restraining order was issued under circumstances causing it to be equivalent to a temporary restraining order without notice. If so, the order should have expired within ten days of its entry.

Under Rule 1.610, a temporary restraining order is, by definition, issued without notice. Where notice has been provided and a hearing conducted, the injunc-tive order entered, if any, is a preliminary injunction. As recognized by the trial court here, a preliminary injunction cannot be issued unless all parties are afforded the opportunity to present evidence.

Rule 1.610 and the accompanying committee note indicate that a temporary restraining order issued without notice will expire automatically unless a hearing on a preliminary injunction is held and a preliminary injunction is granted. There is no provision for the issuance or continuance of a temporary restraining order after only one side has presented evidence. Rather, under the rule, either a preliminary injunction is granted prior to expiration of a temporary restraining order or, upon expiration of the temporary order, matters return to their previous state. There is no middle ground pursuant to which a temporary restraining order can continue in effect beyond the established time limits.

Thus, the order on appeal is the same as a temporary restraining order without notice and consequently expired after ten days from its entry. Further, since Fortune failed to proceed with the preliminary injunction after the initial hearing, the trial court was obligated to dissolve the temporary restraining order pursuant to Rule 1.610(b)(3).

However, the temporary restraining order was considered to be continuing in effect by the trial court and the parties. Appellants’ motion to dissolve was therefore the appropriate vehicle for raising the issue at hand. Accordingly, the trial court erred in refusing to dissolve the temporary restraining order and we reverse. Rather than remand the case for dissolution of the restraining order, we declare that said order expired after ten days from the date of entry and is therefore of no effect.

REVERSED.

DOWNEY and BERANEK, JJ., concur.


text:
    Sheldon YABLON, Petitioner, v. Rochelle YABLON and Daniel Mones, P. A., Respondents.
    No. 81-2397.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Mark L. Weinstein of Schwartz, Klein & Steinhardt, P. A., North Miami Beach, for petitioner.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for respondent Daniel Mones, P. A.
    No appearance for respondent Rochelle Yablon.
   PER CURIAM.

We grant the petition for writ of certio-rari to the extent that we quash those portions of the trial court’s order of November 25, 1981, to the extent that it imposes an attorney’s charging lien on any property of the petitioner beyond his interest in the marital residence. We approve of the trial court’s grant of a charging lien on the marital residence in accord with the parties’ prior settlement agreement.

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


author: BOARDMAN, Judge.

text:
    Rafiel MENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-1226.
    District Court of Appeal of Florida, Second District.
    April 21, 1982.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Rafiel Mendez appeals his conviction and sentence for attempted second-degree murder of a police officer. We reverse.

The officer, Robert E. Pennington, a key witness, testified that he and another officer responded to a call from a night watchman at Instant Credit Motors in Tampa that someone was stealing tires from a van at the car lot. When they arrived they heard a noise from the van and the night watchman shouted, “ ‘He is there.’ ” Pennington observed a suspect, appellant, running, and the officers yelled, “ ‘Halt. Police. Halt.’ ” Pennington feared for his own personal safety and took out his gun and had it down at his side. He then heard a noise which he thought might have been a shot. Appellant went over a high brick wall and continued to run. Then he.suddenly stopped, turned around, and fired a shot. Pennington raised his gun and returned fire with two fast rounds, which hit appellant in the stomach. Pennington then jumped over the brick wall and approached appellant, who was in a sitting position with his hands in front of him. Appellant put his hands in the air, and the officer saw he did not have a firearm on him. Appellant said, “ ‘I dropped it when you hit me.’ ” A revolver was found about seven to eight feet from appellant. Pennington did not hear a bullet from appellant’s gun strike anything or go past him. He did not know by how much the bullet missed him. He was relieved of duty, which he said is standard operating procedure any time an officer fires a weapon.

Detective B. D. Fletcher’s tape-recorded statement from appellant stated that he was trying to find some tires and suddenly someone was shining a light at him. Appellant didn’t know who it was, so he jumped over a fence. As he was falling from the fence, his gun went off, but it did not go off until he was on the other side of the fence. Appellant was not aiming at anybody.

Detective Fletcher testified that he and other detectives searched the whole area for bullets and failed to find any.

Pennington had been the subject of several internal investigations in the past. He had been suspended for allegedly beating a suspect at police headquarters while the suspect’s arms were handcuffed behind his back. He had received a ten-day suspension without pay for taking a gun from another police officer in his gun store. He was under another investigation for pulling a revolver on a student who had run a stop sign; the officer said he thought the suspect had a revolver when he actually had only a pair of pliers. Appellant’s attorney proffered this evidence of Pennington’s pri- or use of excessive force, arguing that this evidence would show Pennington’s motives for testifying as he did. The trial court sustained the state’s objection to the proffered evidence. This was error.

Whenever a witness takes the stand, he ipso facto places his credibility in issue. Baxter v. State, 294 So.2d 392 (Fla. 4th DCA), cert. denied, 303 So.2d 26 (Fla.1974), cert. denied, 420 U.S. 981, 95 S.Ct. 1412, 43 L.Ed.2d 664 (1975). Cross-examination of such a witness in matters relevant to credibility ought to be given a wide scope in order to delve into a witness’s story, to test a witness’s perceptions and memory, and to impeach that witness. United States v. Williams, 592 F.2d 1277 (5th Cir. 1979). Limiting the scope of cross-examination in a manner which keeps from the jury relevant and important facts bearing on trustworthiness of crucial prosecution testimony is improper, especially where the cross-examination is directed at a key prosecution witness. Truman v. Wainwright, 514 F.2d 150 (5th Cir. 1975); Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978). The right of full cross-examination is absolute, and the denial of that right may easily constitute reversible error. Coxwell v. State, 361 So.2d 148 (Fla.1978). Most important, a defendant should be afforded wide latitude to demonstrate bias or a possible motive of the witness to testify as he has. Blair v. State, 371 So.2d 224 (Fla. 2d DCA 1979).

In Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), the first district held that evidence indicating that a police officer had been disciplined or sued for use of excessive force while on duty is relevant to a charge of resisting arrest with violence.

In the instant case, evidence of Pennington’s prior suspensions without pay for use of excessive force would have provided the jury with a highly plausible motive for Pennington’s misrepresentation of the true facts surrounding the shooting incident. If appellant had not actually shot directly at Pennington first, as Pennington had claimed, the jury could have inferred that Pennington would have again been suspended or even dismissed for frivolously shooting appellant in the stomach. Without this evidence, the jury had no reason to seriously question Pennington’s version of the incident. Thus, the jury was presented with an incomplete picture of all the facts. We do not agree with the state’s contention that the trial court’s error in excluding the proffered evidence was harmless under the circumstances.

Accordingly, appellant’s judgment and sentence is REVERSED and the cause REMANDED for a new trial.

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


author: BOARDMAN, Acting Chief Judge.

text:
    SERVICE INSURANCE COMPANY, a Florida corporation; Flaquad, Inc., a Florida corporation; George Hunt, Inc., a Florida corporation; and Hunt Brothers Construction, Inc., Appellants, v. GULF STEEL CORPORATION, a Florida corporation, Appellee.
    No. 81-1419.
    District Court of Appeal of Florida, Second District.
    April 21, 1982.
    Richard A. Gilbert of de la Parte & Butler, Tampa, for appellants.
    John D. Kiernan of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

Defendants Service Insurance Company, Flaquad, Inc., George Hunt, Inc., and Hunt Brothers Construction, Inc. appeal the $6500 attorney’s fee awarded to plaintiff/appellee Gulf Steel Corporation in the trial court’s order taxing costs and fees. We reverse.

On August 10, 1979, appellee filed a complaint to foreclose a mechanic’s lien. Shortly after appellants filed their answer, appel-lee filed a motion for summary judgment, which was granted, and final summary judgment in appellee’s favor was entered on January 11, 1980. On January 30, 1980, appellants satisfied the final summary judgment.

Following entry of the final summary judgment, appellee filed a motion for attorney’s fees. Appellee’s counsel and an attorney for appellants engaged in negotiations as to what a reasonable fee would be; the dispute was over the amount of the fee rather than whether a fee was owed. Following hearings, the trial court on February 27,1980, entered a final judgment awarding attorney’s fees of $9000. Appellants appealed that award to this court, and this court reversed and remanded for a new hearing encompassing all the factors required to be considered under Disciplinary Rule 2-106(B), Code of Professional Responsibility. Service Insurance Co. v. Gulf Steel Corp., 394 So.2d 550 (Fla.2d DCA 1981).

On remand, a new hearing was held on May 12 and June 2,1981. Appellee’s expert opined, after consideration of all appropriate factors, that in view of all the services rendered in the case from the beginning of appellee’s law firm’s involvement through June 2, 1981, excluding the appeal, a reasonable attorney’s fee was between $10,000 and $11,000. He had no opinion on a reasonable fee for the firm’s services through only the execution of the final summary judgment. Appellants’ expert’s opinion was that a reasonable fee for the services performed by the firm through the final summary judgment was between $2500 and $3500. The trial court ultimately awarded a fee of $6500.

The fee arrangement between appellee and its law firm was that if appellee prevailed, the firm would accept whatever award the court made as a reasonable attorney’s fee. The firm expected to be paid by appellee if not awarded a fee by the court. Appellee had no interest in the fee award, and the firm would not share that award with appellee.

Appellee’s claim for attorney’s fee is predicated on Section 713.29, Florida Statutes (1979), which provides:

In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

The award of attorney’s fees is in derogation of the common law, and statutes allowing for the award of such fees should be strictly construed. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974). Cases construing section 713.29 have limited the allowance of attorney’s fees to solely that aspect of an action which relates to the cause of action to enforce the lien. E.g., Jackson v. Hatch, supra; Houdaille-Duval-Wright Co. v. Charldon Construction Co., 266 So.2d 106 (Fla. 3d DCA 1972).

Appellee had no interest in the proceedings after the satisfaction of the final summary judgment. The dispute thereafter was as to the amount of the fee to be paid, not as to whether a fee award was proper. Appellee was not going to share in any fee awarded to its counsel. Since the portion of this lawsuit which involved the foreclosure of the mechanic’s lien terminated on January 11, 1980, appellee’s counsel is not entitled to a fee award for services rendered after that date.

In cases construing similar statutes which provide for the award of attorney’s fees, the courts have unanimously held that a fee award for the time involved in the fee application is not proper. E.g., Dade County v. Oolite Rock Co., 311 So.2d 699 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976) (eminent domain suit under sections 73.091 and 73.092); Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974) (insurance, section 627.428). The court in Palmer stated:

Appellee’s counsel had a contract with his client for a $500.00 retainer fee plus such additional fee as the court might award, no portion of which would be returned to the client. According to appel-lee’s counsel, he had expended some 230 hours of professional time in the prosecution of the ease. However, only 30 hours had been expended up to the time that appellant voluntarily paid the policy proceeds to the SBA, the remainder having been expended thereafter in attempting to collect the attorney’s fee. At about the time that appellant paid the policy proceeds to SBA it offered to appellee the sum of $500.00 to reimburse him for his outlay for attorney’s fees but appellee’s counsel flatly refused such offer and instead demanded a fee of $5000.00. It is clear that from the time appellant paid the policy proceeds to SBA all subsequent efforts on the part of appellee’s counsel were solely for his own benefit and not that of his client.
Appellee was entitled to an award of an attorney’s fee for the use and benefit of his attorney in an amount based upon quantum meruit for services rendered to appellee. Brickell v. Di Petro, 1943, 152 Fla. 429, 12 So.2d 782. Since appellee’s contract with his attorney did not allow appellee to recover any part of his attorney’s fees out of any sum awarded for that purpose, (i.e., the entire award was to go to the attorney) the service which the attorney rendered to appellee effectively terminated when the insurance company voluntarily paid the insurance proceeds to the SBA. From that point on, appellee’s attorney was rendering service only for his own benefit. This might not have been so under a different contractual arrangement between appellee and his counsel. It is clear from the record that the amount which the court awarded as an attorney’s fee was based upon the entire professional services of appellee’s attorney and not merely that portion which was rendered prior to the time that appellant paid the policy proceeds. Thus, the judgment must be reversed and this cause remanded for the purpose of entering a new judgment in favor of appellee in accordance with the views herein expressed.

Id. at 99-100. Like the lawyer in Palmer, appellee’s counsel here had a fee contract whereby the firm would accept as its fee the amount awarded by the court; no portion of the award would be returned to appellee.

Furthermore, the plaintiff has the burden of proving its entitlement to an attorney’s fee award and the reasonable value of the services provided by its attorney. The previous appeal in this case established that appellee had failed to present evidence to the trial court on several of the criteria required to be considered under DR2-106(B). This failure necessitated the proceedings on remand. Appellants should not have to pay attorney’s fees resulting from appellee’s counsel’s failure to present competent, substantial evidence to the trial court in the first place.

Accordingly, the attorney’s fee award is again REVERSED and REMANDED for entry of a fee award for only those services rendered on behalf of appellee through the final summary judgment entered on January 11, 1980. The trial court is authorized to take such further, evidence as it deems necessary to enter an order in conformity with the law of Jackson v. Hatch.

GRIMES and RYDER, JJ., concur.

      . As we find no error in appellant’s contention that the hearing on attorney’s fees should have been held before a different judge, the trial court itself is authorized to take whatever further action it deems necessary.


text:
    Charles R. STEARNS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1557.
    District Court of Appeal of Florida, Second District.
    April 21, 1982.

      Jerry Hill, Public Defender, Bartow, and Neil Polster, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty, Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We reverse the orders of the trial court which (1) revoked Stearns’ probation, and (2) adjudged him guilty of the crime of grand theft and sentenced him to five years in prison.

The revocation hearing was held on June 26, 1981, and the trial judge entered the order which revoked Stearns’ probation on that date. However, the judgment and sentence were entered and filed with the clerk one week earlier on June 19, 1981. Section 948.06, Florida Statutes (1979) mandates that a judgment and sentence be entered only after probation has been revoked. This was not done.

Accordingly, we reverse the orders entered by the trial court and remand for a new revocation hearing. Because of our disposition, we need not address the other point Stearns raises. Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979).

We reverse and remand for further proceedings consistent with this opinion.

GRIMES, A. C. J., and RYDER and DANAHY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    James M. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1804.
    District Court of Appeal of Florida, Second District.
    April 21, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

James Jordan appeals the revocation of his probation based upon his failure to file his monthly reports to his probation officer in a timely fashion. Appellant was charged with two violations. However, one was not established and the aforementioned violation was technical. We reverse.

Appellant was placed on probation for the offense of possession of cocaine. During the probationary period the affidavit for violation of probation charged that three of his monthly reports were received after the date each was due. The other alleged violation was delivery and possession of marijuana.

At appellant’s probation revocation hearing, appellant stated that he had been in the hospital in December, that he had notified his probation officer of that fact and it had caused the delay in the filing of his reports for the next three months. The probation officer stated that the late reports did not mention the surgery but the judge stated he would assume appellant was in the hospital in December.

Inasmuch as the allegations charging delivery and possession of marijuana were neither admitted nor proved, the trial court could not base the revocation of appellant’s probation upon such a finding. Further, while it is undisputed that appellant filed his three monthly reports a total of eleven days late, it was not a substantial or willful violation of probation. McKeever v. State, 359 So.2d 905 (Fla. 2d DCA 1978). Accordingly, the order of revocation of probation is reversed.

BOARDMAN and DANAHY, JJ., concur.


author: JORGENSON, Judge.

text:
    Marcus AMBROSE, Personal Representative of the Estate of M. Fred Rayne, Appellant, v. Emmy RAYNE, Appellee.
    No. 81-1759.
    District Court of Appeal of Florida, Third District.
    April 21, 1982.
    Marcus Ambrose, Coral Gables, for appellant.
    Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellee.

      Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Marcus Ambrose, the personal representative of the estate of M. Fred Rayne, appeals from the trial court’s order which denied partition and granted the respondent, appellee here, continued use of the marital domicile, holding that Paragraph 3 of the original final judgment of dissolution entered in 1972 was “not subject to modification.” We reverse.

An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period. It is always subject to modification whenever there is a change of circumstances. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Appellee’s reliance on Schneider v. Schneider, 296 So.2d 77 (Fla. 3d DCA 1974) is misplaced. Schneider deals primarily with a jurisdictional issue. However, support for appellant’s position is found in Schneider, where this court held that property rights, settled in a final judgment of dissolution, may not, subsequently, be disturbed. In the matter sub judice, appellees misapprehend the effect of the final judgment entered in 1972. The property, once held by the entireties, became, at the time of dissolution, a tenancy in common. DiMartino v. DiMartino, 360 So.2d 1133 (Fla. 3d DCA 1978); Weinstein v. Weinstein, 148 So.2d 737 (Fla. 3d DCA 1963). The property was, thus, subject to a partition action.

Accordingly, we reverse that portion of the trial court’s judgment which precludes partition in light of the principles announced in Duncan, supra. On remand, the appellant will, of course, be required to proceed in accordance with Section 64.011, Florida Statutes (1979), et seq.

Reversed and remanded for further proceedings in accordance with the views expressed herein.

      . Paragraph 3 of the original judgment reads, in pertinent part: “The Wife be, and she is hereby, awarded and granted the right to the full use and occupancy, and the full use and occupancy with the said children, of the furnished residence heretofore jointly owned by the Wife and the Husband ... without interference or molestation upon the part of the said Husband.”


text:
    James D. CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-223.
    District Court of Appeal of Florida, First District.
    April 21, 1982.

      Louis 0. Frost, Jr., Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   ON MOTION FOR REHEARING GRANTED IN PART AND DENIED IN PART

PER CURIAM.

Carroll seeks rehearing and contends this Court erred in improperly enhancing his sentence of twenty years for second degree murder and in affirming the trial court’s denial of youthful offender status. His motion is well taken regarding the enhancement of his sentence and rehearing is granted as to that issue. We deny, however, the motion regarding the trial court’s denial of youthful offender status.

Carroll correctly asserts that enhancement and reclassification of felonies pursuant to Section 775.087(1), Florida Statutes (1979), is proper only against the crime charged, rather than the crime for which he was ultimately convicted. In this case, he was charged with first degree murder, a capital felony. He ultimately pleaded guilty to and was adjudged guilty of second degree murder, a first degree felony. Under the statute, it is not possible to enhance the crime charged, a capital felony. Therefore, the trial court’s sentence of twenty years was a proper sentence in this case.

Carroll incorrectly argues, however, that he is entitled to youthful offender classification. At the plea hearing of May 15, 1980, he pleaded guilty to second degree murder in this case and pleaded nolo con-tendere to attempted second degree murder, a second degree felony, in another case. The trial judge adjudicated him guilty of both offenses and postponed sentencing until a later date. Therefore, at the time of sentencing, he had previously been convicted of a felony (attempted second degree murder) other than the one for which he sought sentencing as a youthful offender (second degree murder).

While not being precluded from youthful offender status by the contemporaneous conviction of two felonies, Carroll is excluded from mandatory classification as a youthful offender. State v. Goodson, 403 So.2d 1337 (Fla.1981). Therefore, whether to grant youthful offender status to him was discretionary with the trial court. We, therefore, affirm the trial court’s denial since no abuse of discretion has been shown.

This Court’s opinion filed on February 9, 1982, is vacated and set aside. Rehearing is granted in part and denied in part, and the judgment and sentence is affirmed.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Douglas S. MANLEY, Appellant, v. Jeri MANLEY, Appellee.
    No. 81-2753.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.

      Lawrence & Daniels and Adam H. Lawrence, Miami, for appellant.
    Gary N. Holthus, Miami, for appellee.
    Before HENDRY and PEARSON, DANIEL and FERGUSON, JJ.
   ON MOTION TO REVIEW ORDER FOR STAY

PER CURIAM.

Having heard oral argument and considered the trial court’s order granting stay of proceeding pending appeal provided the Respondent/husband post bond in the amount of $10,000.00 within thirty days, we conclude that the trial court was correct in setting bond in this amount. However, the order should have provided that the husband’s entire equity in the house together with his stock interest could be used in lieu of a cash or surety bond.

Affirmed in part and reversed in part.