text:
    Reginald BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-285.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from a judgment and sentence imposed upon appellant following a jury verdict of guilty of the crime of robbery.' We affirm.

The evidence adduced at trial showed that appellant approached a bank teller and handed her a note on which was written, “this is a holdup!”. When the teller asked appellant if he were serious, he replied, “yes, I’m serious, and if you love your family, you’ll do as I tell you.” Because appellant kept his hands under the counter and thus out of the sight of the teller, she could not determine whether he had a gun during the robbery. The teller testified at trial that she was not nervous and “wasn’t upset at all” during the course of the robbery. A teller working next to the victim testified that the victim did not appear to be nervous, but rather acted so calmly during the robbery that she was not aware that the victim was being robbed.

Appellant confessed to writing the note, presenting it to the teller, and taking the money, but argues on appeal that his conviction should be reversed because the State failed to show an essential element of robbery, i. e., that the victim was placed in fear of death or great bodily harm.

Robbery is defined in section 812.-13(1), Florida Statutes (1979) as “the taking of money or other property which may be the subject of larceny from the person or custody of another, by force, violence, assault, or putting in fear.” (emphasis added). The fear contemplated by the statute is the fear of death or great bodily harm. Rolle v. State, 268 So.2d 541 (Fla. 3d DCA 1972). To sustain a conviction for robbery, it is not necessary to show that actual violence was used, nor is it required that the victim be placed in actual fear. Montsdoca v. State, 84 Fla. 82, 93 So. 157 (Fla.1922). If the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute, and actual fear need not be strictly and precisely shown. Flagler v. State, 189 So.2d 212 (Fla. 4th DCA 1966), affirmed 198 So.2d 313 (Fla.1967); Thomas v. State, 183 So.2d 297 (Fla. 3d DCA 1966). This is so even where the victim specifically states that he was never in fear during the course of the robbery. Thomas, supra. The victim’s statement that she was unafraid is therefore not controlling: the question is not whether the victim here actually feared appellant, but whether a jury could conclude that a reasonable person under like circumstances would be sufficiently threatened to accede to the robber’s demands.

Appellant points to the fact that he was never shown to have carried a gun during the course of the robbery as evidence that the victim should not have been afraid of him. According to appellant, the absence of a gun during the robbery distinguishes this case from those cases in which victims, fearing for their safety, relinquished their money to robbers who carried a gun. Dupree v. State, 125 Fla. 58, 169 So. 600 (1936); Rolle v. State, supra; Solloa v. State, 227 So.2d 217 (Fla. 3d DCA 1969). Contrary to appellant’s assertion, the facts of the case at hand, viewed objectively, clearly qualify as circumstances which would induce fear in the mind of a reasonable person. The expression “holdup,” in its ordinary significance, means a forcible detention of the person held with the intent to commit robbery, and implies the necessary force to carry out that purpose. State v. Anderson, 53 Or. 479, 101 P. 198, 200 (1909).. Appellant chose the words and the jury had a right to conclude that a person of average sensibilities would give the words that meaning. All of appellant’s actions — the note declaring that a holdup was in progress, the statement implying harm to the victim’s family, and the appellant’s act of keeping his hands out of the victim’s sight — were consistent with this definition and were undoubtedly intended to intimidate the victim into parting with the bank’s money. Certainly she did not give up the money voluntarily. A reasonable person, when faced with the threats presented here, could well conclude that the threats were not idle and that the robber had the means to ensure that his demands were met.

The judgment and sentence for robbery are

AFFIRMED.

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


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    Katherine W. FELLER, Appellant, v. EAU GALLIE YACHT BASIN, INC., and E. J. “Bud” Threadgill, Appellees.
    No. 79-317.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.

      William E. Weller of Rose & Weller, Cocoa Beach, for appellant.
    Storms, Krasny, Normile, Dettmer & Gil-lin, P. A., Melbourne, for appellees.
   COWART, Judge.

Within her seven page, four exhibit, complaint seeking an injunction and other equitable relief, the plaintiff alleges that she owns real property fronting on the waters of Eau Gallie River and riparian rights and that the defendant is maintaining boat docks which encroach upon, and deprive the plaintiff of, riparian rights including her right to ingress and egress and of an unobstructed view.

From the dismissal of her complaint, plaintiff appeals. Appellees cite section 197.228, Florida Statutes- (1979), which states in part that riparian rights are those incident to land bordering upon navigable waters and that the land to which the owner holds title must extend to the ordinary high water mark of the navigable water in order that riparian rights may attach. Ap-pellees then argue that the complaint does not allege that plaintiff’s uplands extend to the ordinary high water mark or that the Eau Gallie River is navigable.

Riparian rights exist in Florida as a matter of constitutional rights and property law and are not dependent on the statute cited which merely attempts to define them for tax purposes. However, in this in-, stance, the tax statute definition is accurate and appellees are correct that it contains, the short and plain statements of ultimate facts more properly pleaded than the eon-clusory allegation that she owns “riparian rights.”

As a matter of good pleading the complaint misses the target twice, hitting too high by alleging “riparian rights,”' which is a conclusion of law, and also hitting too low by alleging evidentiary facts. The legal description of plaintiffs lands, in Paragraph 4 of the second amended complaint and in her deed attached as Exhibit “A”, refers to the "ordinary high water mark” of the waters of Eau Gallie River and describes the lands as running to the center of the stream and purports to convey all riparian rights. As the deed itself is not a chose in action upon which the action is brought, it is not required by rule to be attached to the complaint. While “unnecessarily” attached as an exhibit, it has not been stricken and it constitutes material and relevant evidence as to proof of ownership. Such exhibits are properly considered a part of the complaint for all purposes, including motions to dismiss. A proper allegation that plaintiff owns lands extending to the ordinary high water mark of Eau Gallie River and that Eau Gallie River is a navigable stream would permit defendants to more readily answer and to admit or deny one or some but not all of the several ultimate facts that in combination make up the conclusion that plaintiff has riparian rights. Nevertheless the allegation of riparian rights includes by definition the pertinent ultimate facts and, if good faith requires the defendant to admit the fact of ownership but to deny the fact of navigability, or vice versa, this can be done intelligently and without great inconvenience as provided in Florida Rule of Civil Procedure 1.110(c). The complaint also contains numerous references to boats and boat docks which is evidence of navigability. See Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909); Bucki v. Cone, 25 Fla. 1, 6 So. 160 (1889); Lopez v. Smith, 145 So.2d 509 (Fla. 2d DCA 1962).

Where a complaint states, in substance, a cause of action by way of allegations of conclusions or evidentiary facts but fails to do so by short and plain statements of the ultimate facts, the complaint should not be dismissed under Florida Rule of Civil Procedure 1.140(b)(6) for failure to state a cause of action although it may be subject to a motion to require compliance with Florida Rule of Civil Procedure 1.110(b)(2) as to the form and style of the allegations or a motion for a more definite statement under Florida Rule of Civil Procedure 1.140(e).

Accordingly, the final judgment dismissing the third amended complaint is

REVERSED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . See Hayes v. Bowman, 91 So.2d 795 (Fla.1957); Tampa So. R. R. v. Nettles, 82 Fla. 2, 89 So. 223 (1921); Thiesen v. Gulf, F. & A. Ry., 75 Fla. 28, 78, 78 So. 491, 507 (1918); Ferry Pass Inspectors’ & Shippers’ Ass’n v. Whites River Inspectors’ & Shippers’ Ass’n, 57 Fla. 399, 48 So. 643 (1909). See also 1 Faraham, Waters & Water Rights § 66 (1904); Annot., 15 A.L.R.2d 318 (1951) (cases on preliminary mandatory injunctions to protect riparian rights). But see Duval Eng’r & Contracting Co. v. Sales, 77 So.2d 431 (Fla.1954).

      . See Duval Eng’r & Contracting Co. v. Sales, 77 So.2d 431 (Fla.1954); Deering v. Martin, 95 Fla. 224, 116 So. 54 (1928); Tampa So. R. R. v. Nettles, 82 Fla. 2, 89 So. 223 (1921); Thiesen v. Gulf, F. & A. Ry., 75 Fla. 28, 78 So. 491 (1918); Eustis v. Firster, 113 So.2d 260 (Fla.2d DCA 1959). See also Weir v. Palm Beach County, 85 So.2d 865 (Fla.1956).

      . Fla.R.Civ.P. 1.110(b)(2).

      . Fla.R.Civ.P. 1.130(a).

      . Fla.R.Civ.P. 1.130(b).

      . Woolzy v. Government Emp. Ins. Co., 360 So.2d 1153 (Fla. 3d DCA 1978); Harry Pepper & Assoc. Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971).

        .See Sheppard v. Inverness Coca-Cola Bottling Co., 322 So.2d 583 (Fla. 2d DCA 1975); Cohn v. Florida-Georgia Television Co., Inc., 218 So.2d 787 (Fla. 1st DCA 1969); Oster v. Krause, 168 So.2d 558 (Fla. 3d DCA 1964).


author: COBB, Judge.

text:
    Clayton H. CONARD and Dennis Harman Friel, Appellants, v. STATE of Florida, Appellee.
    No. 80-272.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    James B. Gibson, Public Defender, and Brent A. Woolbright, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

This is a timely appeal from the judgments and sentences entered after appellants were convicted after trial by jury of nine counts of selling unregistered securities, nine counts of fraudulently selling securities, and one count of scheming to defraud each, in violations of sections 517.07, 517.302, 517.301, 817.035(2), Florida Statutes (1977). According to appellants, the total terms of the sentences are unclear from the record on appeal. The charges and convictions arose from a worm farm scam.

The defendants were sentenced in the following manner:

Defendants moved for correction or reduction of sentence on the grounds that they were in doubt as to the intent of the court and were of the understanding that the court intended to impose a total sentence of 10 years. This motion was denied. The trial judge’s notes, dated February 7, 1980, show Counts 7, 10, and 19 as consecutive, and show all the other counts as concurrent; while a second note dated February 27, 1980, does not refer to the specific counts by number and does not shed any light on the issue.

The Department of Corrections has interpreted the above sentences as an aggregate of twenty years. The appellants contend it is no more than fifteen years. The state conceded, on oral argument, that the wording of the sentences is ambiguous and should be clarified by the trial court. The appellants point out, inter alia, that there is no logical way for the five years imposed for Count I to run concurrently with the sentences for all of the other; counts, three of which (Counts 7,10 and 19)' were designated as consecutive sentences.

The appellants' remaining point on appeal, the claim that the trial judge erred in denying a mistrial motion, is patently without merit.

Accordingly, we affirm the convictions but remand to the trial court for entry of clarified and logically consistent sentencés. It shall not be necessary for the appellants to be present at resentencing. See Campbell v. State, 379 So.2d 1011 (Fla. 4th DCA 1980).

ORFINGER and SHARP, JJ., concur.

      . In reading the 19-count information to the sworn panel, the trial judge paused after Count Ten and said: “Ten down, and nine to go,” before reading on. Defense counsel moved for a mistrial, but refused the trial court’s offer of a corrective instruction to the jury to ignore the comment.


author: SHARP, Judge.

text:
    Harold YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 80-570.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    Harold Young, pro se.
    No appearance for appellee.
   SHARP, Judge.

Young appeals the denial of his motion for post conviction relief. Several grounds were raised in a motion including ineffective assistance of counsel. The trial judge denied the motion holding these issues had been considered on direct appeal. However, the issue of ineffective assistance of counsel had not been raised prior to the 3.850 motion. Denial of effective assistance of counsel is an issue appropriate for collateral relief. Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980). We remand this case for an evidentiary hearing on the issue of ineffective assistance of counsel. Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980); Dismuke v. State, 388 So.2d 1324 (Fla. 5th DCA 1980).

REMANDED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Maye G. NEIL, Appellant, v. SOUTH FLORIDA AUTO PAINTERS, INC., a Florida Corporation, d/b/a Auto Painting Corporation of America, Appellee.
    No. 79-2039.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied May 20, 1981.

      Carl H. Hoffman and David Hertzig, Miami, for appellant.
    Preddy, Kutner & Hardy and Stephen T. Brown, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The issue presented for our review is whether certain causes of action brought in an independent suit by Neil against South Florida Auto Painters, Inc., doing business as Auto Painting Corporation of America (APCA), were of such a nature as to constitute compulsory claims which Neil was required to assert as counterclaims (or be thereafter barred from asserting) in either of two prior actions brought against her by APCA. The trial court determined that four counts of Neil’s complaint alleging thát APCA was liable in damages to her on account of assault and battery, false imprisonment, intentional infliction of emotional distress, and malicious prosecution arose out of “the transaction or occurrence that [was] the subject matter” of APCA’s prior claims, were therefore compulsory counterclaims, and were now barred. See Fla.R.Civ.P. 1.170(a). Accordingly, the trial court dismissed these counts of Neil’s complaint. We reverse the dismissal of the count charging malicious prosecution and otherwise affirm the ruling of the trial court.

I.

The Transaction Or Occurrence.

In early May 1975, APCA agreed to paint Neil’s car in consideration of Neil paying $109.15. The paint job was completed in several days, and Neil came to APCA’s garage for her car. The paint job was not to Neil’s liking, and she told APCA’s employee, whom she thought to be the manager, that she would not pay for it. An ensuing heated discussion ended with Neil getting in her car. At that point, the employee reached in the car window and removed the key from the ignition. Neil took a duplicate key from her purse and started the car. The employee closed the front garage door to prevent Neil’s departure. Neil turned her car around in an effort to exit from the open rear door. During the process, Neil’s car struck and caused minor damage to two cars parked in the garage. APCA’s employee shut the rear door. Angry words were again exchanged. The argument was interrupted by a knock on the front garage door. The employee answered the knock, opened the door, and went outside the garage. Neil turned her car around again and proceeded to drive out the front door. The employee stopped her by placing himself in front of Neil’s car. When Neil revved the engine, the employee stepped aside. As Neil drove past him, the employee opened the driver’s side of Neil’s car, causing it to hit against the side of the garage. Neil finally drove away.

II.

APCA’s Claim For Replevin.

Less than a month after Neil’s hurried departure, APCA filed an action for replev-in, seeking possession of the automobile which was, allegedly, wrongfully removed from its premises. Although the record of these replevin proceedings is sparse, we are able to glean from it two significant facts. First, it appears that APCA’s replevin action was dismissed by the trial court on the ground that “the remedy at law under which plaintiff has chosen to sue is inappropriate under the circumstances.” Second, it appears that APCA did not seek a personal judgment against Neil, but restricted its prayer for relief to a claim for possession of the car.

The significance, for present purposes, of the trial court’s dismissal on the ground that the remedy of replevin was inappropriate is that such a dismissal, whether correctly entered or not, relieved Neil of the obligation, if any otherwise existed, to file a counterclaim to APCA’s re-plevin action. As the court stated in Lawhorn v. Atlantic Refining Company, 299 F.2d 353, 356 (5th Cir. 1962):

“... it is clear that a plaintiff must have a claim before a defendant is required to assert a compulsory counterclaim. A counterclaim must be pressed only when it is related to the ... subject matter of the opposing party’s claim .... When Atlantic’s motion to dismiss was successful, it was a judicial determination that Lawhorn had no claim upon which relief could be granted. If there was no claim, no counterclaim was required.” (emphasis in original).

Similarly, the trial court’s dismissal of APCA’s replevin action was a judicial determination that APCA had no claim upon which relief could be granted, and Neil was not compelled to file any counterclaim in response.

Alternatively, APCA’s failure to seek a personal judgment against Neil in the replevin action made a counterclaim by Neil unnecessary. This exception to the compulsory counterclaim requirement is found in Florida Rule of Civil Procedure 1.170(a)(2):

“. .. the pleader need not state a claim if . .. the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim.... ”

In its replevin action, APCA invoked only the in rem jurisdiction of the trial court, rendering a counterclaim by Neil unnecessary. Cf. Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, n.1, 94 S.Ct. 2504, n.1, 41 L.Ed.2d 243, n.1 (1974) [in dictum, court stated that where only in rem jurisdiction is invoked, a counterclaim is not required under Federal Rule of Civil Procedure 13(a)].

III.

APCA’s Claim For Breach Óf Contract ■ And Damages Arising From Neil’s Negligence.

A. The effect upon Neil’s actions for assault and battery, false imprisonment, and intentional infliction of emotional distress.

Approximately two months after its replevin action was dismissed APCA sued Neil to recover the $109.15 which she agreed to pay for the paint job and for $55.00 in damages to the automobiles which were hit in APCA’s garage during Neil’s exit. Neil filed no counterclaim to this action. The case went to trial, and judgment was entered in Neil’s favor. Sometime later, Neil brought the suit which is the subject of this appeal.

Neil and APCA are in accord that the appropriate test for determining whether a counterclaim arises out of the transaction or occurrence which is the subject matter of the opposing party’s claim, and is thus compulsory, is the “logical relationship” test. The test, in modern form, is set forth in Revere Copper and Brass, Inc. v. Aetna Casualty and Surety Co., 426 F.2d 709, 715 (5th Cir. 1970):

“. .. a claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.” (emphasis in original).

We agree that the test is an appropriate one, but as so readily appears from the decisional law and from the conflicting contentions of the parties here, stating the test is far easier than determining whether claims are or are not logically related.

In making this determination, we must keep in mind that the goal of the compulsory counterclaim rule is “to prevent multiplicity of actions and to achieve a just resolution in a single lawsuit of all disputes arising out of common matters.” Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400 (Fla. 4th DCA 1972); 3 Moore’s Federal Practice ¶ 13.12[1], at 13-273 (2d ed. 1980). Therefore, to achieve this goal, we must give the phrase “transaction or occurrence” a broad, realistic interpretation. Stone v. Pembroke Lakes Trailer Park, Inc., supra.

We find persuasive the Fifth Circuit’s decision in United Broadcasting Company, Inc. v. Armes, 506 F.2d 766 (5th Cir. 1975). In that case, Eaton, the equitable owner of a Mexican radio station, hired Armes, a private investigator, to assist in recovering legal title to the station and physical custody of his ward. Armes experienced difficulties in collecting the promised investigative fees and allegedly engaged in the questionable collection methods of threatening to harm Eaton and the child. Ultimately, Armes filed a suit in a Texas Federal District Court to recover his fees. During the progress of that suit, Eaton filed suit against Armes in the District of Columbia Federal District Court for invasion of privacy and other torts. The Texas Federal Court enjoined the District of Columbia action. Eaton appealed. The Fifth Circuit, inter alia, affirmed the injunction, holding that Eaton’s tort claims ,in the District of Columbia action arose 'out of the same transaction as Armes’ contract claims and could only be brought as a counterclaim in the Texas Federal Court.

In contrast, but equally instructive, is Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968), in which the court held that while Bohlender’s counterclaim of assault and battery to Oster’s like complaint arising out of a 1963 affray was clearly compulsory, Bohlender’s additional counterclaims to enjoin Oster from interfering with irrigation and water rights which admittedly were based on unrelated events which occurred well prior to their fight were not compulsory counterclaims.

In the present case, the acts of APCA’s employee in preventing Neil from leaving the garage without paying for the paint job, out of which Neil’s false imprisonment, assault and battery, and intentional infliction of emotional distress claims arose, and Neil’s efforts to extricate herself from her captor, out of which APCA’s claim for damage to other vehicles arose, are inextricably bound together. Thus, APCA’s claim for the cost of the paint job and claim that Neil negligently damaged its vehicles arises out of the same aggregate of operative facts as Neil’s claim that in pursuit of its money APCA, through its employee, falsely imprisoned her, committed an assault and battery upon her, and intentionally inflicted emotional distress upon her, all of which caused her, in turn, to damage other vehicles in APCA’s garage. These claims are, in short, logically related. We conclude, therefore, that Neil’s failure to bring her claims for assault and battery, false imprisonment, and intentional infliction of emotional distress as counterclaims to APCA’s damage action bars her from bringing these claims in a separate action.

B. The effect upon Neil’s actions for malicious prosecution.

Neil’s complaint contained two separate counts for malicious prosecution. One count, dismissed by the trial court and therefore involved in this appeal, alleged that APCA’s replevin action was maliciously prosecuted. The other, not dismissed by the trial court, alleged that APCA’s suit for damages (the cost of the paint job and the cost of repairing the garaged vehicles) was maliciously prosecuted. As will be seen, and as the trial court recognized, they must be considered separately.

The threshold requirement for a compulsory counterclaim is that it be a viable claim against the opposing party when the opposing party asserts his claim. Florida Rule of Civil Procedure 1.170(a) begins:

“Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party .... ” (emphasis supplied).

A malicious prosecution action requires as one of its essential elements a bona fide termination of the “prosecution.” Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980). Thus, a malicious prosecution action cannot be brought as a counterclaim, and a fortiori cannot be a compulsory counterclaim when the “prosecution” said to be malicious is the pending action of the opposing party. Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980).

It is clear, then, as the trial court ruled, that Neil’s claim that APCA maliciously prosecuted her when it sued to recover the cost of painting the car and for damages to the garaged vehicles could not have been brought as a counterclaim in that very action. But in respect to Neil’s claim that APCA maliciously prosecuted her when it first sought replevin, the usual barrier that the prosecution had not been terminated did not exist, since APCA’s replevin action was resolved in Neil’s favor by the time APCA commenced its damage action.

However, notwithstanding that a cause of action for malicious prosecution has ripened by bona fide termination, and thus could be brought in response to a second prosecution, we are of the view that such a cause of action does not arise out of the transaction or occurrence that is the subject matter of the plaintiff’s claim. Our holding in Blue v. Weinstein, supra, that an abuse of process counterclaim, which arises from the process, is permissive, not compulsory, applies with equal force to a ripe malicious prosecution counterclaim which arises from the prosecution. See also Aviation Materials, Inc. v. Pinney, 65 F.R.D. 357 (N.D.Okla.1975); Bose Corporation v. Consumers Union of the United States, Inc., 384 F.Supp. 600 (D.Mass.1974). Neil’s dismissed malicious prosecution owes its existence not to the events of that fateful day in May 1975 when Neil went to take her car home, but to the institution and dismissal of APCA’s replevin suit which damaged Neil.

Conclusion

The trial court properly dismissed Counts 1, 2 and 3 of Neil’s complaint, which alleged assault and battery, false imprisonment, and intentional infliction of emotional distress, all of which, in our view, arose out of the same transaction or occurrence as APCA’s claim for damages and therefore had to be brought as a counterclaim in that action. Neil’s claim for malicious prosecution arising from APCA’s replevin suit against her stands on a different footing. While this malicious prosecution claim could have been brought as a counterclaim to APCA s later suit for damages, it was not required to be brought.

Affirmed in part; reversed in part and remanded.

      . The trial court correctly denied a motion to dismiss another count for malicious prosecution. See discussion, infra.

      . APCA contends that since less than all counts were dismissed, no appeal lies from the dismissal of these four counts. As will be seen, infra, the only interrelated counts, those alleging assault and battery, false imprisonment, and intentional infliction of emotional distress, were all dismissed. They do not arise from the same transaction as either the dismissed malicious prosecution count or the pending malicious prosecution count, which, in turn, are unrelated to each other. Accordingly, we have jurisdiction of this appeal. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

      .Section 78.01, Florida Statutes (1975), authorizes a writ of replevin to recover personal property wrongfully detained by another and, in addition, “damages sustained by reason of the wrongful taking or detention.” To the extent such damages are sought, the action is in personam as well as in rem. However, merely naming the individual in possession as a defendant does not make the action in personam. See Delacruz v. Peninsula State Bank, 221 So.2d 772 (Fla. 2d DCA 1969). While under former Section 46.08, Florida Statutes, no action could be joined with, or counterclaim filed against, a replevin action, Huckleberry v. Davis Double Seal Jalousies, Inc., 117 So.2d 519 (Fla. 3d DCA 1960), the repeal of that statute paved the way for counterclaims to replevin. Robinson v. Cinema International, Ltd., 356 So.2d 843 (Fla. 4th DCA 1978) (allowing permissive counterclaim in replevin action, but erroneously employing compulsory counterclaim language).

      . Rule 13(a) is the federal counterpart of Florida Rule of Civil Procedure 1.170(a). Decisions under the Federal Rules are persuasive guidelines to the interpretation of state rules which are closely patterned after the Federal Rules. Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980).

      . The rule requiring that a compulsory counterclaim be brought cannot be avoided on the ground that the counterclaim exceeds the monetary jurisdiction of the court in which the claim was brought. Florida Rule of Civil Procedure 1.170(j) provides for transfer to the proper court in such an event.

      . The genesis of the logical relationship test is found in Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), where the court said, “[transaction is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.” The test appears to have received acceptance in Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974), and Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400 (Fla. 4th DCA 1972). But in both Taussig and Stone, the relationship between the claims of the opposing parties was so “logical” that the failure of one laid the foundation for the other. As will be seen, the logical relationship test embraces much more than mere corollaries.

      . It is clear enough that a counterclaim is compulsory when it comes within three other tests which have found some favor in the courts: (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute the plaintiffs claim as well as the defendant’s counterclaim? See Hilton Casinos, Inc. v. First National Bank of South Miami, 380 So.2d 1061 (Fla. 3d DCA 1980). To the extent that these tests are variations on collateral estoppel and res judicata themes in the instance where the opposing party’s claim is proved, it is doubtful whether they are properly tests for judging when a counterclaim is compulsory. In such a case, where an issue between the parties has been resolved favorably to the original claimant, the defendant would likely be collaterally estopped from relitigating that same issue, and the additional bar resulting from the failure to file a compulsory counterclaim is unnecessary. See 3 Moore’s Federal Practice ¶ 13.12[1], at 13-269, n. 3 (2d ed. 1980). But quite apart from the issue of the necessity of these tests, there is the issue of utility. Obviously, if the relationship between the claim and counterclaim satisfies any of these tests, it necessarily satisfies the logical relationship test. See, e. g., Taussig v. Insurance Company of North America, supra; Stone v. Pembroke Lakes Trailer Park, Inc., supra; Moore v. New York Cotton Exchange, supra, which, accordingly, are not very useful to the present inquiry. It is when, as here, the issues of fact and law are not largely the same, when collateral estoppel or res judicata do not apply, and when the evidence to support the plaintiffs claim and the defendant’s counterclaim is not the same that only the logical relationship test can be used.

      .Eaton had titled the radio station in the name of Padilla, a Mexican female friend. Padilla had absconded to Mexico with Eaton’s ward, a young girl.

      . For further examples of claims which do not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim, see Metropolitan Casualty Insurance Company v. Walker, 151 Fla. 314, 9 So.2d 361 (1942), and Hilton Casinos, Inc. v. First National Bank of South Miami, supra. In Hilton Casinos, the claim was asserted by a third-party defendant against the plaintiff under Florida Rule of Civil Procedure 1.180, which contains language identical to Florida Rule of Civil Procedure 1.170(a).


author: HENDRY, Judge.

text:
    Captain Ralph C. TINGLEY, District Nine Supervisor of the Florida Marine Patrol, and State of Florida Department of Natural Resources, Appellants, v. David Lloyd ALLEN, Iris Morris Breece, John Delong, Reo U. Hill, David Earl Pigott, David Revell, and James Wideman, Appellees.
    No. 80-1235.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied May 29, 1981.

      Jim Smith, Atty. Gen., and Kent A. Zaiser and Susan Gamble, Asst. Attys. Gen., for appellants.
    David Paul Horan and Mark H. Kelly, Key West, for appellees.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   HENDRY, Judge.

This appeal is taken from a declaratory judgment holding section 370.151(2), Florida Statutes (1979), unconstitutional. We have jurisdiction.

Appellees, Florida residents engaged in the business of commercial shrimping for profit, filed a petition for declaratory judgment in circuit court, citing past arrests and fear of future prosecution under the statute, Duran v. Wells, 307 So.2d 259 (Fla. 2d DCA 1975), as grounds for standing to bring suit. Their petition sought to have the statute declared unconstitutional and to. have appellants, Captain Tingley of the Florida Marine Patrol and the State of Florida Department of Natural Resources, temporarily and permanently enjoined from enforcing the statute.

On May 15, 1980, the Circuit Court for the Sixteenth Judicial Circuit rendered a final judgment declaring section 370.151(2), which prohibits unauthorized shrimping in certain described areas of the Tortugas shrimp beds, invalid and enjoining the appellants from enforcing the statute.

Paragraph (a) of section 370.151(2) provides a metes and bounds description of the location of the shrimp beds, and paragraph (b) prohibits all shrimping except live bait production in the area described. Although situated within the state’s territorial boundaries (as established in Florida’s 1868 Constitution) at the time of the statute’s enactment, the shrimp beds, which extend as far as thirty miles into the Gulf at some points, are now partially within and without the state’s boundaries. Appellees protest that the statute is an unconstitutional attempt by the State of Florida to regulate the natural resources which are located within the exclusive jurisdiction of the United States.

The principal issue thus submitted is whether the statute conflicts with federal legislation on the same topic and should therefore be declared constitutionally invalid under the supremacy clause, U.S.Const. art. VI,- cl.2. We hold that section 370.-151(2) is preempted by federal law and that the portion of the statute which attempts to extend Florida’s authority to regulate fishing extraterritorially is unconstitutional.

The court below correctly ruled that the statute conflicts with federal legislation on the same subject. The Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq., recognized and confirmed title and ownership to all land and natural resources lying beneath navigable waters within the boundaries of the states to the states; reserving the right to natural resources outside the states’ boundaries to the United States. The Supreme Court later interpreted the applicability of this act to Florida and firmly established the state’s territorial boundary at three marine leagues into the Gulf of Mexico in United States v. Florida, 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976). More recent legislation, the Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq., grants exclusive federal control over all fish within the fishery conservation zone. This zone is described as the area seaward for 200 miles from the territorial limits of each state. The act also specifically prohibits both direct and indirect state regulation beyond state territorial waters, 16 U.S.C. § 1856(a).

Federal laws are the supreme law of the land, and to the extent that state laws or policies are in conflict, federal law governs. United States v. Castellana, 433 F.Supp. 1309, 1316 (M.D.Fla.1977). Congress has clearly preempted regulation of all fishing in the area between the states’ boundaries and 200 miles seaward. The statute at issue is in conflict insofar as it attempts to govern shrimping in the area beyond three leagues from Florida’s coastline.

Our finding that the statute conflicts with federal legislation effectively disposes of appellant’s contention that Skiriotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941) authorizes Florida to regulate the operations of all fishermen and vessels of this state engaged in fishing both within and without the boundaries of state waters. Skiriotes, held that Florida may govern the conduct of its citizens upon the high seas with respect to matters in which the state has a legitimate interest and where there is no conflict with acts of Congress. Obviously, a conflict does exist in the present situation, and the federal legislation suspends the operation of state laws beyond their territorial boundaries.

For the reasons stated, we hold that section 370.151(2) is unconstitutional to the extent that it attempts to exercise state authority over the area of the Tortugas shrimp beds which is beyond state boundaries.

Accordingly, the declaratory judgment under review is affirmed except as to that portion of section 370.151(2)(a) which lies within three marine leagues from Florida’s coastline.

Affirmed in part and reversed in part.

      .Section 370.151(2), Florida Statutes, (1979), provides:
      (2) Tortugas Shrimp Bed is described as follows:
      (a) Begin at Coon Key Light in Collier County; thence proceed on a straight line to a point which is located at 24°54'30" north latitude and 81°50'30" west longitude; thence proceed on a straight line to a point located at 24°48'00" north latitude and 82°00'00" west longitude; thence proceed on a straight line to a point located at 24°45'00" north latitude and 82°22'30" west longitude; thence proceed on a straight line to Rebecca Shoals Light; thence proceed on a straight line to R. B. Bell Buoy; thence proceed on a straight line to Cosgrove Shoal Light; thence proceed on a straight line to Sand Key Light; thence proceed northerly to the abandoned lighthouse located in the southwest portion of Key West; thence along the south and east meandered shoreline of the Florida Keys and the connecting viaducts between said Keys to 80°30'00" west longitude; thence north until a point on the mainland is reached; thence proceed west and north along the coast of the mainland of Florida until a point is reached which is located due north of the aforementioned Coon Key Light located in Collier County; thence due south to Coon Key Light, the point of beginning.
      (b) No shrimping shall be permitted at any time except live bait production as provided in this chapter in the above-described area.

      . Fla.R.App.P. 9.030(b)(1)(A).

      . Ch. 86, Fla.Stat. (1979).

      . Appellee Reo Hill has challenged this statute before. In a 1978 criminal proceeding against him, the Monroe County Circuit Court ruled the statute unconstitutional. On direct appeal however, the Florida Supreme Court reversed, holding that since Hill was charged with shrimping in the prohibited area at a point within the territorial waters of the state, the statute could be legally applied to him and he lacked standing to challenge the validity of a portion of the statute which did not affect him. See State v. Hill, 372 So.2d 84 (Fla.1979).


author: PER CURIAM.

text:
    Raymond S. KANE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1281.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied May 29, 1981.
    Roy E. Black, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

The final judgment of conviction and sentence entered upon a revocation of probation which is under review by this appeal is reversed and the cause remanded to the trial court with directions to restore the defendant Raymond S. Kane to probation in this cause. This reversal, however, shall be without prejudice to the state to refile a new affidavit charging a violation of the defendant’s probation with sufficient particularity to give the defendant proper due process notice of the charges against him. Our review of the record reveals sufficient confusion as to what acts the defendant Kane was charged with committing which constituted the alleged probation violation in this case; proper due process notice of the alleged probation violation was not, therefore, accorded to the defendant in this cause. See e. g., Gagnon v. Searpeili, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Hines v. State, 358 So.2d 183 (Fla.1978).

The defendant Kane was charged in an affidavit of probation violation with violating his probation by committing a crime in that: (1) on or about April 9, 1980, he sold cocaine at a specified place to a named police informant; and (2) on or about April 10, 1980, he negotiated the price of cocaine at a specified place with an undercover police officer. Subsequently, the state dismissed the above affidavit and filed an amended affidavit of probation violation. The amended affidavit omitted the first charge relating to the alleged April 9 cocaine sale and amended the second charge by stating that the defendant had violated his probation by committing a crime in that on or about April 10, 1980, the defendant attempted to sell cocaine to an undercover police officer.

At that point, the defendant could have reasonably believed that the April 9, 1980, cocaine transaction charge had been dropped by the state and that he faced only the cocaine transaction charge of April 10, 1980. Apparently attempting to test this belief, the defendant filed a motion for a statement of particulars. The state responded with a statement of particulars alleging that the date of the offense was April 9, 1980, seemingly in an effort to revive in whole or in part the dismissed April 9 cocaine charge. Unfortunately, this served only to jumble the two charges together in hopeless confusion as defense counsel repeatedly pointed out below. Moreover, the testimony at the probation violation hearing further emphasized this confusion by revealing that two separate narcotics transactions involving the defendant took place on April 9 and April 10. The transaction on April 9, 1980, was with a named police informant; the transaction of April 10, 1980, was with an undercover police officer and the above police informant.

Based on the above circumstances, we agree that it was totally impossible for the defendant to determine which narcotics transaction the state was charging the defendant with engaging in as a basis for violating his probation. Proper due process notice of the probation violation was not, therefore, given to the defendant, and this cause must be reversed under the law for further proceedings.

Reversed and remanded.

      . Both in the original and amended affidavit of probation violation the state alleged that the defendant Kane violated the following condition of his probation: “(4) You will live at liberty without violating any law.” This condition was contained in the order granting probation and fixing terms thereof previously entered by the court in this cause.

      . Notably, the amended affidavit did not charge the defendant with a continuous transaction taking place on April 9-10, 1980, but elected instead to allege that the offense took place on or about April 10, 1980.

      . We can find no authority supporting such a motion in a probation revocation proceeding. On the contrary, the informal nature of a probation revocation proceeding militates against the use of such formal procedural pleading. See Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977). If an affidavit for probation violation fails to allege the basic facts concerning the alleged violation — such as its nature, time and place of occurrence — the affidavit is subject to dismissal for failure to accord due process notice of the probation violation to the defendant. Hines v. State, 358 So.2d 183 (Fla.1978). Formal pleading practice, however, is not appropriate in these informal proceedings. Compare Cuciak v. State, 394 So.2d 500 (Fla. 4th DCA 1981).


author: FERGUSON, Judge.

text:
    Jose A. FERNANDEZ and Hialeah Bakery, Inc., Appellants, v. Oscar VAZQUEZ and Filiberto Portales d/b/a Job Development, Appellees.
    No. 80-1451.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Arango & Galarraga and Jorge Sanchez-Galarraga, Coral Gables, for appellants.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez and Maria C. Arriola Velez, Miami, for appellees.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Lessees, Jose Fernandez and Hialeah Bakery, Inc., appeal from an order of summary judgment dismissing their counterclaim against lessors, Oscar Vazquez and Filiberto Portales, doing business as Job Development. The issue on appeal is whether a lessor may arbitrarily refuse consent to an assignment of a lease which provides that the lessee shall not assign or sublease the premises without written consent of the lessor. We have been unable to find any case in Florida where this issue has been squarely presented to the court. The very able trial judge granted the summary judgment based on what the state of the law was assumed to be.

On March 1,1976, Fernandez and Hialeah Bakery entered into a five-year business lease with Leonard and Shirley Groh, then the owners of the property. Paragraph one of the lease provides that the lessee shall not assign the lease, nor sublet the premises without the written consent of the lessor.

On July 27, 1978, Vazquez and Portales purchased the property from the Grohs and became the new lessors. On July 17, 1978, lessees Fernandez and Hialeah Bakery entered into a written contract to sell the bakery shop to Rubin Gonzalez, a defendant below. Lessors refused to consent to this assignment. Subsequently, on August 21, 1978, Vazquez and Portales offered to approve Gonzalez under a new lease if he would pay an additional rent of $250 a month. Since Gonzalez was not interested in acquiring the business under the increased rent and since Vazquez and Por-tales would not otherwise consent to the assignment, the purchase and sale contract between Gonzalez and lessees was rescinded. Hialeah Bakery remained in possession of the premises.

On August 30, 1978, Vazquez and Por-tales filed suit against Fernandez and Hialeah Bakery seeking to cancel the lease for untimely payment of the August 1978 rent installment and to evict Fernandez, Hialeah Bakery, and Gonzalez from the premises. Fernandez and Hialeah Bakery counterclaimed alleging lessors breached the lease agreement by refusing to consent to the assignment. Vazquez and Portales filed a motion for summary judgment as to the counterclaim, which was granted by the trial judge.

The law generally favors free alienation of property and under common law a tenant has the right to assign his leasehold interest without the consent of the lessor. See Frissell v. Nichols, 94 Fla. 403, 114 So. 431 (1927); 3A R. Thompson, Real Property, § 1200 (J. Grimes, 1981). In order to protect the landlord from this common law right of assignment, many leases expressly provide that the property cannot be assigned without the written consent of the landlord. A decreasing majority of jurisdictions hold that when such written consent is required, a landlord may arbitrarily and capriciously refuse to approve a subtenant or assignee. See B & R Oil Co., Inc. v. Ray’s Mobile Homes, Inc., 422 A.2d 1267 (Vt.1980); Carleno v. Vollmert Tire Co., 36 Colo.App. 446, 540 P.2d 1149 (1975); Segre v. Ring, 103 N.H. 278, 170 A.2d 265 (1961); Grumen v. Investor’s Diversified Services, 247 Minn. 502, 78 N.W.2d 377 (1956). See also 49 Am.Jur.2d, Landlord and Tenant, § 423; 51C C.J.S., Landlord and Tenant § 36(1); Annot. 31 A.L.R.2d 821 (1953).

The arbitrary and capricious rule is undergoing continued erosion. An increasing number of jurisdictions hold that when a lease requires written consent prior to assignment or subleasing, but does not contain any language limiting the withholding of that consent, such consent may not be arbitrarily or unreasonably refused. Homa-Goff Interiors, Inc. v. Cowden, 350 So.2d 1035 (Ala. 1977); Arrington v. Walter E. Heller International Corp., 30 Ill.App.3d 631, 333 N.E.2d 50 (1975); Shaker Building Co. v. Federal Lime and Stone Co., 28 Ohio Misc. 246, 277 N.E.2d 584 (1971). See Sommer v. Kridel, 74 N.J. 446, 378 A.2d, 767 (N.J. 1977) (residential lease requiring written consent of landlord), holding that a landlord has the duty to mitigate damages. At least three states, Alaska,. Delaware, and New York, have prohibited a landlord from arbitrarily refusing consent in cases involving residential leases. See also Restatement (Second) Property, Landlord and Tenant, § 15.12 (1977); Weissenberger, “The Landlord’s Duty to Mitigate Damages on the Tenant’s Abandonment: A Survey of Old Law and New Trends,” 53 Temp.L.Q. 1 (1980).

Underlying the cases abolishing the arbitrary and capricious rule is the now well-accepted concept that a lease is a contract and, as such, should be governed by the general contract principles of good faith and commercial reasonableness. One established contract principle is that a party’s good faith cooperation is an implied condition precedent to performance of a contract. Where that cooperation is unreasonably withheld, the recalcitrant party is estopped from availing herself of her own wrongdoing. Dade County v. O.K. Auto Parts of Miami, Inc., 360 So.2d 441 (Fla.3d DCA 1978), cert. denied, 379 So.2d 207 (Fla., 1979). See also Zim v. Western Publishing Co., 573 F.2d 1318, 1324 (5th Cir. 1978); Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (1945); Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (1929); Paul v. Hurley, 315 So.2d 536 (Fla. 4th DCA 1975); Casale v. Carrigan and Boland, Inc., 288 So.2d 299 (Fla. 4th DCA 1974); 3 A. Corbin, Contracts, §§ 767, 768 (1960); 5 Williston Contracts, §§ 676, 677 (3d ed. Jaeger 1972).

Where a lessee is entitled to sublet under common law, but has agreed to limit that right by first acquiring the consent of the landlord, we believe the lessee has a right to expect that consent will not be unreasonably withheld. We cite with approval the rationale of the courts in Homa-Goff, supra 350 So.2d at 1038 and Arrington, supra 30 Ill.App.3d 631, 333 N.E.2d at 58:

Where the lease merely contains a provision — without more — granting a person, normally a landlord, the power to withhold consent, regardless of whether explicitly qualified to reasonable exercises of the power ... the courts have held the person’s refusal to consent to a person acceptable by reasonable commercial standards to be an unreasonable exercise and thus violative of the lease.

Accordingly, we hold that a lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides, even without limiting language, that a lessee shall not assign or sublease the premises without the written consent of the lessor. A withholding of consent to assign a lease, which fails the tests for good faith and commercial reasonableness,, constitutes a breach of the lease agreement. Whether a landlord breached the lease by acting unreasonably in withholding consent of a commercial tenant is to be determined by a jury according to the facts of that case. The following factors are among those which a jury may properly consider in applying the standards of good faith and commercial reasonableness: (a) financial responsibility of the proposed subtenant (b) the “identity” or “business character” of the subtenant, i. e., suitability for the particular building, (c) the need for alteration of the premises, (d) the legality of the proposed use, and (e) the nature of the occupancy, i. e., office, factory, clinic, etc.; See Popovic v. Florida Mechanical Contractors, supra, Whitman v. Pet Inc., supra, American Book Co. v. Yeshiva University, Development Foundation, Inc., 59 Misc.2d 31, 297 N.Y.S.2d 156 (1969); Johnson v. Jaquith, supra. Denying consent solely on the basis of personal taste, convenience or sensibility or in order that the landlord may charge a higher rent than originally contracted for have been held arbitrary reasons failing the tests of good faith and reasonableness under commercial leases. Catalina Inc. v. Biscayne Northeast Corp., supra; Chanslor— Western Oil & Development Co. v. Metropolitan Sanitary District, 131 Ill.App.2d 527, 266 N.E.2d 405 (1970), citing Broad and Branford Place Corp. v. J. J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (1944).

Reversed and remanded for further proceedings consistent with this opinion.

      . See Lane v. Floridus Enterprises, Inc., 391 So.2d 270 (Fla. 4th DCA 1980), Glickstein, J., dissenting: “Whether the conduct of the lessor’s representative was reasonable is not an issue because in my judgment when a lease requires the consent of the lessor to any assignment and the lease does not contain limiting language requiring a reasonable withholding thereof, the lessor may refuse or decline to give such consent for any or no reason.” Id at 272.

        See also Tallahassee Mall, Inc. v. Rogers, 352 So.2d 1272 (Fla. 1st DCA 1977). The primary issue is whether appellant unreasonably withheld consent. There is no indication in the opinion if the lease contained language limiting the refusal.

      . The arbitrary and capricious rule does not apply where (a) the lease specifically provides that consent may not be unreasonably withheld, Popovic v. Florida Mechanical Contractors, Inc., 358 So.2d 880 (Fla.2d DCA 1978); Whitman v. Pet Inc., 335 So.2d 577 (Fla.3d DCA 1976); Catalina, Inc. v. Biscayne Northeast Corp. of Florida, 296 So.2d 580 (Fla.3d DCA 1974); Johnson v. Jaquith, 189 So.2d 827 (Fla.4th DCA 1966); or (b) the lessor has waived the right to withhold consent by accepting benefits, Crossman v. Fountainebleau Hotel Corp., 273 F.2d 720 (5th Cir. 1959); Barber v. Hatch, 380 So.2d 536 (Fla.5th DCA 1980); Gould v. Ruzakowski, 345 So.2d 842 (Fla.3d DCA 1977); Leeds Shoes, Inc. v. Wally, 309 So.2d 249 (Fla.4th DCA 1975); Tollius v. Dutch Inns of America, Inc., 244 So.2d 467 (Fla.3d DCA 1970). See Annot. 54 A.L.R.3d 679 (1973).

      . The court in Grumen, supra, lists the following nineteen jurisdictions as permitting arbitrary refusal: District of Columbia, Alabama, Arkansas, California, Connecticut, Delaware, Florida, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Missouri, Nebraska, New Jersey, New York, Ohio, Pennsylvania, and Texas. Since this case was decided, at least five of the states (Alabama, Illinois, New Jersey, New York and Ohio) have changed their laws. Massachusetts remains with the majority but not without protest. See Granite Trust Building Corp. v. Great Atlantic & Pacific Tea Co., 36 F.Supp. 77, 78 (D.C. Mass. 1940) (“It would seem to be the better law that when a lease restricts a lessee’s rights by requiring consent before these rights can be exercised, it must have been in the contemplation of the parties that the lessor be required to give some reason for withholding consent); Edmands v. Rust & Richardson Drug Co., 191 Mass. 123, 77 N.E. 713 (1906) (landlord may not hold tenant responsible for damages if he refuses to accept financially responsible tenant); Ablondi v. Chase, - Mass.App. -, 414 N.E.2d 617 (1981) (but lease may contain limiting language). The Florida case cited in Grumen, supra, does not necessarily support this position. See Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944).

      . Alaska Statutes, Section 34.030.060 (1975): (b) The tenant’s right to sublease his premises or assign the rental agreement to another shall be conditioned on obtaining the landlord’s consent, which may be withheld only upon the grounds specified in (d) of this section; no further restrictions on sublease or assignment are enforceable. . .
      (d) With 14 days after the written offer has been delivered to the landlord, the landlord may refuse consent to a sublease or assignment by a written rejection signed and delivered by him to the tenant, containing one or more of the following reasonable grounds for rejecting the prospective occupant:
      (1) insufficient credit standing or financial responsibility;
      (2) number of persons in the household;
      (3) number of persons under 18 years of age in the household;
      (4) unwillingness of the prospective occupant to assume the same terms as are included in the existing rental agreement;
      (5) proposed maintenance of pets;
      (6) proposed commercial activity; or
      (7) written information signed by a previous landlord, which shall accompany the rejection, setting out abuses of other premises occupied by the prospective occupant.

      . Delaware Code Annotated Tit. 25, § 5512(b) (1974):
      The rental agreement may restrict the tenant’s right to assign the rental agreement in any manner. The tenant’s right to sublease the premises may be conditioned on obtaining the landlord’s consent, which shall not be unreasonably withheld. No consideration of race, creed, sex, marital status, religion, political opinion, or affiliation or national origin may be relied on by the landlord as reasonable grounds for rejection.

      . New York Real Property § 226-b (49 McKinney’s Supp. 1980-81);
      1. A tenant renting a residence in a dwelling having four or more residential units shall have the right to sublease or assign his premises, subject to the written consent of the landlord given in advance of the sublease or assignment. Such consent shall not be unreasonably withheld. If the landlord unreasonably withholds consent for such sublease or assignment, the landlord must release the tenant from the lease upon request of the tenant.

      . For other jurisdictions, see 2 R. Powell, Real Property § 221[1] (Rohan ed. 1977); 3 R. Thompson, Real Property, § 1110 (J. Grimes 1980); Javins v. First National Realty Co., 428 F.2d 1071 (D.C. Cir. 1970), cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); Sommer v. Kridel, supra, Parkwood Realty Co. v. Marcano, 77 Misc.2d 690, 353 N.Y.S.2d 623 (1974); 57 E. 54 Realty Corp. v. Gay Nineties Realty Corp., 71 Misc.2d 353, 335 N.Y.S.2d 872 (App.Div. 1972); Lemie v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969); Wright v. Baumann, 239 Or. 410, 398 P.2d 119 (1965). For Florida see, R. Boyer, 2 Florida Real Estate Transactions, §§ 35.01-02 (1980); Uniform Residential Landlord and Tenant Act, § 83.44, Fla.Stat. (1979), Butler v. Maney, 146 Fla. 33, 36, 200 So. 226, 228 (1941).

      . Although we see no significant difference between a residential lease and a commercial lease as to the obligations of good faith and commercial reasonableness, we are presented only with a business lease and, therefore, adopt the narrow holding. We are not presented with and make no ruling on the general duty of a landlord to mitigate damages under Florida law.


text:
    Abraham WALLACE, a/k/a James Williams, Appellant, v. The STATE of Florida, Appellee.
    No. 81-728.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied May 29, 1981.
    Jeffery Garmel, Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, 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 on the authority of Dalton v. State, 362 So.2d 457 (Fla. 4th DCA 1978), which decided the identical issue presented here. See, Dorfman v. State, 351 So.2d 954 (Fla. 1977).


author: BERANEK, Judge.

text:
    BROWARD COUNTY, Appellant/Cross-Appellee, v. R. W. OBERMAYR, D. D. S., P. A., Individually and on behalf of all others similarly situated, and Lester Bauer, in his capacity as Tax Collector, Appellees/Cross-Appellants.
    No. 80-822.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Rehearing Denied May 26, 1981.

      Harry A.' Stewart, Gen. Counsel, and John Franklin Wade, Asst. Gen. Counsel, for Broward County, Fort Lauderdale, for appellant/cross-appellee.
    Donald A. Wich, Jr., of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Fort Lauder-dale, for appellees/cross-appellants, Ober-mayr.
   BERANEK, Judge.

This is an appeal by defendant, Broward County, from a final judgment rendered in the Circuit Court of Broward County finding a certain county tax to be unconstitutional. The invalidated tax was an occupational license tax levied against professional associations. Plaintiff, a dentist, operating as a professional association (P.A.) pursuant to Florida Statutes, Chapter 621, filed a class action seeking declaratory relief. Plaintiff asserted that the County’s tax discriminated against professional associations because there was no similar tax on dental partnerships or on dental unincorporated associations. It is clear that the County taxes each individual dentist the same license tax, but this case does not present a question as to the validity of the tax on the individuals. The trial court found the tax against P.A.’s unconstitutional because there was no similar tax levied against similar partnerships, unincorporated associations or other forms of doing business. This finding was in accordance with the position of the plaintiff at the time of trial. Appellee’s position may be summarized by the following quotations taken from appel-lee’s brief.

Simply stated, BROWARD COUNTY has unfairly and unreasonably discriminated against professional associations, without any rational basis, ....
The Appellee, in the instant action, does not dispute the classifications established by the county for the imposition of the license tax. The Appellee, does dispute, however, the arbitrary, capricious and otherwise, discriminatory treatment within the classification by the imposition of the license tax upon, professional associations but not upon other forms of conducting the same profession.
The Appellee would emphasize that they do not dispute that the taxing entity, in the imposition of an excise tax, may reasonably distinguish between businesses or trades or between different methods of conducting the same general character of a business or trade.... In the case at bar, the imposition of the occupational license tax upon professional associations practicing dentistry, but not upon partnerships or other entities is unreasonable, discriminatory and renders the tax void with respect to professional associations.

We conclude that the trial court erred in holding the tax on P.A.’s unconstitutional based on the argument that there is no similar tax on partnerships or unincorporated associations. From a constitutional point of view, only arbitrary, unreasonable and unequal classifications in license taxation render a taxing ordinance invalid. Howland v. State ex rel. Zirklebach, 56 Fla. 422, 47 So. 963 (1909). Furthermore, the mere fact that a business may be taxed under two or more classifications does not invalidate a tax on the grounds of double taxation. Smith v. City of Miami, 160 Fla. 306, 34 So.2d 544 (1948), and Ingraham v. City of Miami, 388 So.2d 305 (Fla.3d DCA 1980). In Florida Sugar Distributors, Inc. v. Wood, 135 Fla. 126, 184 So. 641, 645 (1938), the Florida Supreme Court stated as follows:

To sustain a license tax statute against the charge- of unconstitutional discrimination, the difference between the subjects taxed need not be great; and if any reasonable distinction can be found to exist, the duty of the court is to sustain the classification imposed by the law.

In Peninsular Casualty Company v. State, 68 Fla. 411, 67 So. 165 (1914), the court upheld classifications in the fixing of the amount of license taxes where the discrimination involved was not found to be purely arbitrary and unreasonable “under every conceivable condition in practical affairs.”

The basic question is whether a professional corporation organized under Chapter 621 may be taxed as an entity when no similar tax is imposed upon a partnership or an unincorporated association. We have no difficulty in concluding that a professional association actually engaged in business and organized pursuant to Chapter 621 is a sufficient legal entity which is subject to taxation. Indeed, appellee does not contend professional associations are not taxable. The question is thus whether there is “any reasonable distinction” between a P.A. on the one hand and a dental partnership or unincorporated association on the other. In construing Chapter 621, the Fifth Circuit Court of Appeal has specifically held that a professional association practicing medicine and incorporated under the Florida Professional Service Corporation Act was a corporation and not a partnership for purposes of federal taxation. Kurzner v. United States, 413 F.2d 97 (5th Cir. 1969). Clearly, the federal view supports a distinction between the two.

We also conclude a professional association is a distinguishable taxable business entity by reference to the statute under which it is created. The trial judge herein concluded that a professional association was not a “true corporation.” Although this finding is not relied upon for the ruling of unconstitutionality, we conclude it was error to so rule. A Florida P.A. existing under Chapter 621 has legal existence and all provisions of Chapter 607, the General Corporation Act are applicable to it unless in conflict with Chapter 621.

The Florida Income Tax Code embodied in Chapter 220, Florida Statutes, is applicable by analogy. The announced intent of this chapter is to tax all corporations and other entities for the privilege of conducting business, deriving income or existing within the State. Partnerships are specifically not taxed and Chapter 621 professional service corporations are specifically included as corporations subject to tax. See Section 220.02(1), Florida Statutes (1979). Further, Section 220.03(l)(b), Florida Statutes (1979), provides that the term “corporation” shall not include proprietorships, partnerships of any type or certain other designated entities. Under the Corporate Income Tax Code, a professional association is a taxable corporation and a partnership or proprietorship is not such an entity.

The basic legal distinctions between a partnership and a corporation are substantial and meaningful. A partnership is a relationship between persons based upon a contract between them. Dubos v. Hoover, 25 Fla. 720, 6 So. 788 (1889). Partnerships are today governed by the Uniform Partnership Act contained in Chapter 620 of the Florida Statutes. Although the Uniform Partnership Act has been adopted in this State, it is not at all clear whether a partnership should be recognized as a legal entity thereunder. Florida apparently adheres to the common law principle that a partnership is not a legal entity apart from the partners actually composing it. I. Epstein & Brothers v. First National Bank, 92 Fla. 796, 110 So. 354 (1926). Because this case does not require it we do not answer the precise legal question of whether a partnership constitutes a distinct legal entity, however, we conclude that there are clear legal distinctions between a professional service corporation and a partnership and that such distinctions are sufficient to meet the test set out in Florida Sugar Distributors, Inc. v. Wood, supra.

Even though restricted by its nature to the professional services which it must render, the P.A. like all other corporations, is the creature of statute and is an entity distinct from its individual stockholders. Partners are personally and individually liable for the acts of other partners acting on behalf of the firm. This concept of personal liability is inapplicable to the P.A. Under the rationale of the appellee herein, a tax on any normal Chapter 607 corporation would be improper if partnerships are not also so taxed. We reject this argument.

The contentions regarding unincorporated associations do not present a substantial question. The absence of a tax on such associations does not invalidate the tax on P.A.’s.

The finding of unconstitutionality by the trial court is thus reversed. In view of this conclusion we find it unnecessary to explore the further points on appeal asserted by appellant or to consider the cross-appeal which relates to the alleged improper refusal to certify other professionals as being within the class in question. The judgment below is reversed.

REVERSED.

DOWNEY, J., and RUTTER, R. WILLIAM, Jr., Associate Judge, concur.

      . It is conceded that each individual dentist is taxed and that each dental P.A. is also separately taxed. Appellant does not urge this form of taxation to be invalid.


text:
    Christopher Alvin LEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-771.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

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

AFFIRMED.

COBB, SHARP, and COWART, JJ., concur.


text:
    FLORIDA POOL SUPPLY, INC., a Florida Corporation, Appellant, v. C & D ENTERPRISES, INC., a Florida Corporation; Leisure Time Pool Supply, Inc., a Florida Corporation; and Charles W. Lautenklos, Appellees.
    No. 80-896.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellant.
    J. Daniel Ennis of Ennis & Northcutt, Indian Harbor Beach, for appellees.
   PER CURIAM.

The order appealed from is affirmed upon the authority of Schweitzer v. Seaman, 383 So.2d 1175 (Fla. 4th DCA 1980).

AFFIRMED.

DAUKSCH, C. J., and COBB and OR-FINGER, JJ., concur.


text:
    Antonio NUNES, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY and Nationwide Insurance Company, Appellees.
    No. SS-247.
    District Court of Appeal of Florida, First District.
    April 30, 1981.
    Rehearing Denied May 26, 1981.
    Timothy H. Kenney of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.
    Frank G. Cibula, Jr., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., and SHAW, JJ., and VICTOR M. CAWTHON, Associate Judge, concur.


author: BASKIN, Judge.

text:
    John Joseph BASSING, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2370.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Defendant Bassing challenges the denial of his motion to suppress tangible evidence and a statement he made to the arresting officer. He reserved his right to appeal the denial of his motion when he entered a plea of no contest to the charge of grand theft, second degree. We affirm.

The thrust of defendant’s argument is that when Florida Highway Patrolman Breen arrived at the scene of a one-car accident and saw a disabled and damaged automobile on the shoulder of an expressway ramp and also saw, on the opposite side of the road, defendant Bassing, scratched, shirtless and disoriented, walking away from the car, the officer lacked a founded suspicion to make an investigatory stop. He contends that defendant’s explanation that he had been in a brawl at a nearby bar should have satisfied the officer sufficiently to terminate defendant’s detention, citing section 901.151, Florida Statutes (1979).

(1) This section may be known and cited as the “Florida Stop and Frisk law.”
(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
(3) No person shall be temporarily detained under the provisions of subsection (2) longer than is reasonably necessary to effect the purposes of that subsection. Such temporary detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.

In addition, defendant maintains the officer’s subsequently received information that the car had been stolen did not furnish probable cause for the officer to arrest him and to conduct a search of his person. The officer, upon learning the car had been reported stolen, ordered defendant to empty his pockets which contained keys to the car he had denied owning. When defendant said he “was in big trouble now”, he was arrested and advised of his rights.

We do not agree that either the keys or defendant’s statement was the product of an unlawful search. We hold that the officer was justified in stopping defendant Bassing, who appeared intoxicated and in need of medical treatment.

The officer’s founded suspicion that defendant had committed the offense of driving under the influence of intoxicating beverages justified the stop. See State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). When Officer Breen learned that the car had been reported stolen, hé had probable cause to conduct a search of defendant’s person, incident to an arrest.

The search was incident to the arrest even though the search preceded the arrest. “Where the formal arrest followed quickly on the heels of the challenged search ...” it is not important that the search preceded the arrest. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633, 645 (1980); United States v. Chatman, 573 F.2d 565 (9th Cir. 1977); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981). The fruits of the search were not necessary to support probable cause for the arrest.

Affirmed.


text:
    Raymond SEKOSKY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-522.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.

      Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981).


text:
    Robert Keith KEEFER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-965.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    J. Edward Worton, Key West, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The appellant claims error in a jury instruction that possession of cannabis is a lesser included offense of the crime of sale or delivery as charged in the information. We find both (a) that Keefer did not preserve the alleged error for appellate review, see Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980), cert. denied, 388 So.2d 1110 (Fla.1980); Thompson v. State, 368 So.2d 670 (Fla. 3d DCA 1979), and cases cited; and (b) that, as was squarely held in the case of his co-defendant, Bradshaw v. State, (Fla. 3d DCA Case No. 80-966, opinion filed, February 10, 1981), his contention is substantively incorrect on the facts involved below.

Affirmed.


text:
    Louis GASSEL, Appellant, v. Shirley GASSEL, Appellee.
    No. 80-1319.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Sheldon R. Rosenthal, Miami, for appellant.
    Christie, Gelber & Christie and Irwin G. Christie, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

We affirm the Order and the Order on Attorney’s Fees.


text:
    CEDARS OF LEBANON HOSPITAL CORPORATION, Appellant, v. SUN BANK OF RIVERSIDE, formerly Riverside Bank, and Sun Bank of Midtown, formerly Midtown Bank, Appellees.
    No. 80-1322.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Gunn, Venney & Buhler and Robert E. Venney, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and R. Owen Ricker, Jr., Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Jett v. The Lewis State Bank, 277 So.2d 37 (Fla.1st DCA 1973); § 673.405, Fla.Stat. (1967).


text:
    Efstathios J. CATOGAS, Appellant, v. Frank SAPP and Edwin Sapp, Appellees.
    No. 80-1432.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Pertnoy & Greenberg and Stuart H. So-bel, Miami, for appellant.
    Ezzo, Garel & Saylor and Bruce A. Say-lor, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Efstathios Catogas, plaintiff below, appeals from a court order dismissing his complaint without prejudice. Appellate jurisdiction is pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.110. We reverse.

Following the announcement that both parties were ready for trial, the trial court ordered attorneys for both sides to appear on Monday, June 9, 1980 at 9:00 a. m. prepared for trial. Late in the afternoon, on Friday, June 6, 1980, the attorney for Catogas checked with the secretary of the trial judge and learned that his case still stood at number four on the trial calendar. Believing that his case would not be called for trial before midmorning, counsel for Catogas.attended a 9:00 a. m. hearing in criminal court. When he appeared before the trial court by 10:00 a. m., he was advised by the court that he should appear promptly with his client to proceed to trial, or that the case would be dismissed, for failing to prosecute. Counsel for Catogas advised the court he would then take a voluntary dismissal. The next day, counsel for Catogas appeared before the court intending to seek a continuance and argue in favor of permitting the case to go to trial either then or on a subsequent calendar. Because Catogas was not present at that moment, the case was not allowed to proceed. Catogas did not file a voluntary dismissal as he indicated he would. On July 12, 1980, the court ordered the case dismissed for failure of the plaintiff to appear for trial.

Where the record is devoid of evidence reflecting a willful or flagrant disregard for the court’s authority, dismissing a plaintiff’s complaint without prejudice for failure of counsel to appear on time for trial is too severe a sanction to visit upon a litigant. Aller v. Editorial Planeta, S. A., 389 So.2d 321 (Fla. 3d DCA 1980). For derelictions of this nature, the court is empowered to discipline the offending attorney by contempt or other appropriate punishment. Aller, supra.

Reversed.


text:
    BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., Appellants, v. Ann PETKUNAS, by and through her son and Legal Guardian, Daniel Petkunas and Daniel Petkunas, individually, Appellees.
    No. 80-1444.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Proby & Adkins and H. Lawrence Hardy, Coral Gables, for appellants.
    Greene & Cooper and Sharon L. Wolfe, Miami, Grover, Ciment, Weinstein & Stau-ber, Miami Beach, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The judgment awarding attorney’s fees is reversed and remanded for an evidentiary hearing for the purpose of fixing and determining fees in accordance with the applicable statutory criteria, pursuant to Section 627.428, Florida Statutes (1979), which authorizes attorney’s fees for “prosecuting the suit in which the recovery is had,” accord, American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978).

Reversed and remanded.


text:
    Robert Tod HOFFMAN, Appellant, v. Timothy Miller TERRY and Patricia R. Terry, Appellees.
    No. 80-1484.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Shutts & Bowen and Richard M. Leslie, Miami, for appellant.
    Cuadrado & Sosby, Miami, and Teresa Gail Sosby, for appellees.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   FERGUSON, Judge.

The issue at trial was the correct interpretation to be given the terms of a contract. Appellant contends that the language of the instrument was clear and unambiguous and should have been interpreted by the court as a matter of law. Appel-lee contends that the provision in question had a meaning inconsistent with that meaning advanced by appellant. The court submitted the cause to the jury which returned a verdict in favor of appellees. The issues on appeal are whether the court correctly submitted the question to the jury to interpret the contract and correctly denied appellant’s motion for a directed verdict.

We have examined the record, particularly the disputed contract provision, and find that the provision is, as determined by the trial court, reasonably susceptible to more than one construction. Because the provision is ambiguous, it was proper to submit the issue to the jury for resolution as a matter of fact. Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952); Pan American Bancshares, Inc. v. Trask, 278 So.2d 313 (Fla. 3d DCA 1973). There was no error in denying appellant’s motion for a directed verdict. See, e. g., Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Bruce Construction Corp. v. The State Exchange Bank, 102 So.2d 288 (Fla.1958); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979).

Affirmed.


text:
    Glenn WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-299.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Glenn Wilson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 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.


text:
    Marshall Earl WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-835.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.
    James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence for robbery with a firearm. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On October 16, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

DAUKSCH, C. J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.

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


text:
    NATIONAL ADVANCED SYSTEMS CORPORATION, Appellant, v. The SCHOOL BOARD OF ORANGE COUNTY, Appellee.
    No. 80-882.
    District Court of Appeal of Florida, Fifth District.
    May 6, 1981.

      John A. Barley, Tallahassee, for appellant.
    William M. Rowland, Jr., of Rowland, Thomas & Bruggeman,'Orlando, for appel-lee.

      . Fla.R.App.P. 9.030(b)(1)(C); § 120.68, Fla. Stat. (Supp.1980).

   SHARP, Judge.

This is an appeal from the School Board of Orange County’s denial of a Petition for Administrative Hearing pursuant to section 120.57(1), Florida Statutes (Supp.1980), on the grounds that the Petition was not timely filed. We have jurisdiction. National Advanced Systems Corporation (National) argues that the Petition was filed within the time required by the appropriate administrative rule. We agree and reverse.

Competitive bids relating to the purchase of data processing equipment were solicited by the Board. At a public meeting on June 24, 1980, the Board voted to accept another firm’s proposal as the “lowest and best” bid. National’s regional sales manager, Michael Thomas, appeared at the meeting and presented arguments for accepting National’s bid.

On July 2,1980, National received a written notice of the Board’s decision in the form of a typewritten copy of the minutes of the public meeting. National’s Petition for Administrative Hearing was received by the Board on July 16, 1980, fourteen (14) days after appellant received the written notice. National was entitled to receive notice and the opportunity for a hearing pursuant to section 120.57(2), Florida Statutes (Supp.1980) because if it had made the “lowest and best bid,” the award to another party determined a matter of substantial interest to National. See section 120.52(2) and (10)(a), Florida Statutes (1979) and sections 120.54(5) and 120.57, Florida Statutes (Supp.1980).

The Board had not adopted a specific rule of procedure concerning the method or procedure to request a hearing by a party adversely affected by the Board’s actions. Therefore the model rules promulgated by the Administration Commission apply in this case. § 120.54(10), Fla.Stat. (Supp. 1980). Florida Administrative Code Rule 28-5.111 provides in part:

(1) Persons requesting a hearing on an Agency decision which does or may determine their substantial interest shall file a petition with the Agency within twenty-one (21) days of receipt of written notice of the decision, or within twenty-one (21) days of receipt of written notice of intent to render such decision; ...
(2) Any person who receives written notice of an agency decision or who receives written notice of intent to render a decision and who fails to request a hearing within twenty-one (21) days, shall have waived his right subsequently to request a hearing on such matters.

There was no evidence in the record to show that National received any written notice other than the minutes of the Board meeting. Therefore the Petition, filed within fourteen (14) days after receipt of the minutes, was timely.

Our decision is not intended to suggest a determination of the bid dispute. By reversing the Board’s denial of the Petition, we rule only that National should be afforded an opportunity to present evidence and arguments, pursuant to section 120.-57(l)(b)4, Florida Statutes (Supp.1980), that its bid was the “lowest and best” response to the bid document. Accordingly, this case is reversed and remanded to the School Board of Orange County with directions to conduct an administrative hearing.

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.

      . Florida Administrative Code Rule 6-1.12(5) provides in pertinent part:
      In acceptance of bids, the school board shall accept the lowest and best bid.