author: GLICKSTEIN, Judge.

text:
    George Kelsey WOODWORTH, Appellant/Cross-Appellee, v. Mary Louise WOODWORTH, Appellee/Cross-Appellant.
    No. 79-365.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied Aug. 5, 1980.

      Linda F. Albritton of Haines & Rossow, P.A., North Palm Beach, for appellant/cross-appellee.
    James P. O’Flarity of Law Offices of James P. O’Flarity, Palm Beach, for appel-lee/cross-appellant.
   GLICKSTEIN, Judge.

Appellant timely appeals from a final judgment denying modification of a “Separation Agreement and Property Settlement Agreement,” and from a post-judgment order awarding appellee costs and attorney’s fees. Appellee cross-appeals from the introduction into evidence of appellee’s answers to interrogatories filed when appellant initiated his first petition for modification in the same case as the original divorce proceeding. We affirm in part, reverse in part and remand.

I

The first issue is whether, as a matter of law, the above agreement is subject to modification within the rule of Hyotlaine v. Hyotlaine, 356 So.2d 1319, 1320 (Fla. 4th DCA 1978):

In reference to the payments, if they are for support, maintenance or alimony, either party may apply for a judgment decreasing or increasing the amount provided for in the agreement. Section 61.-14, Florida Statutes (1975). On the other hand, if the payments are part of a true property settlement agreement they are not subject to modification. Salomon v. Salomon, 196 So.2d 111 (Fla.1967). [We find paragraph 8 to be, at least in part, an agreement for the payment of alimony. We reach this conclusion based upon a reading of the entire agreement, but we particularly note the introductory language which recites that “property rights of the parties as well as questions of alimony payment have been placed in issue by both parties” and that “the parties desire to settle all questions regarding property rights, support and maintenance and other rights and obligations growing out of the marriage relation.”]

The introductory language to the agreement recites:

WHEREAS, the parties hereto desire to enter into this agreement for the purpose of settling forever their mutual and respective property rights and the rights, obligations and duties of one to the other; and
WHEREAS, in view of the irreconcilable differences between them, the parties hereto desire to reduce their separation agreement to writing and do desire to provide for the maintenance and support of the wife, as well as for the division and disposition of their property and property rights. (Emphasis added).

Paragraph 12 of the agreement provides:

12. That the husband does hereby covenant and agree to pay unto the said wife as alimony for her total support and maintenance the sum of Three Hundred Dollars ($300.00) per month, said payments to be made on the first of each and every month hereafter, commencing on the first day of June, 1967, with a payment in like amount each and every month thereafter until the death of the husband or the wife, or until the parties hereto shall become divorced and the wife remarried, whichever shall first occur. Upon the death of the husband or wife, all liability for payments hereunder shall cease. (Emphasis added).

From the wording of its final judgment, the trial court apparently concluded paragraph 12 was not subject to modification. The trial court denied the petition for modification and specifically found “the agreement was entered into by both parties being well informed and agreeable to the contents of the agreement”; that there were “no inequities of consideration existing between the parties at the time the agreement was entered into”; “and to now allow the petitioner to rearrange the agreement to reduce his obligations would be unjust.” The parties’ briefs reflect a similar interpretation.

In resolving the issue, we recognize that our obligation is to determine the intention of the parties. This is accomplished by examining the plain language of the agreement, its surrounding circumstances, and the parties’ apparent purpose. Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Coffin v. Coffin, 368 So.2d 105 (Fla. 4th DCA 1979). Furthermore, as the court stated in Bergman v. Bergman, 145 Fla. 10, 199 So. 920, 921 (1940):

[T]he separation agreement must be given a realistic interpretation based on its plain everyday meaning as conveyed by its terms unless the context unmistakably shows that the parties intended that it be given some peculiar or covert interpretation not readily apparent on its face.

While the use of the terms “alimony,” “support” and “maintenance” are not conclusive, they are certainly indicia of the intent of the parties. Paras v. Paras, 262 So.2d 203 (Fla. 4th DCA 1972). The circumstances surrounding paragraph 12 of the agreement are consistent with alimony, since payments were to terminate on the death of either the husband or the wife, or upon the wife’s remarriage, whichever occurred first. See In re Estate of Freeland, 182 So.2d 425 (Fla.1965); Evans v. Evans, 212 So.2d 107 (Fla. 4th DCA 1968); Hoke v. Hoke, 202 So.2d 118 (Fla. 4th DCA 1967).

In the paragraphs of the subject agreement addressing property rights, appellee relinquished her interest in real property held as tenants by the entirety in North Palm Beach and Memphis, as well as the parties’ joint savings accounts. Appellant relinquished his interest in jointly owned real property in Kensington, Maryland, the parties’ joint checking accounts, and furniture, and agreed to give appellee $800 in cash.

This is a classic case of an agreement containing a combination of provisions. The agreement provides for future support and maintenance subject to modification by the trial court. It also divides the parties’ property and disposes of their property rights without being subject to modification.

Therefore, the leading cases holding that property settlement agreements are not subject to modification are factually distinguishable. The agreement in Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940), contained no provision for termination on the wife’s remarriage, and the payments of $100 per month for six years, together with other benefits, were in lieu of the wife’s right to participate in her husband’s property. In Underwood v. Underwood, supra, the payments for the wife’s support continued, notwithstanding her remarriage or her husband’s death. Payments to the wife in Salomon v. Salomon, 196 So.2d 111 (Fla.1967), continued so long as she lived on and maintained the homestead. In Howell v. Howell, 164 So.2d 231 (Fla. 2d DCA 1964), cert. denied, 169 So.2d 389 (Fla.1964), payments to the wife continued regardless of her earnings or income, after the wife had relinquished her property interest in a business.

Accordingly, we conclude paragraph 12 was subject to modification, and reverse and remand.

II

The second issue is whether on remand the trial court must, as a matter of law, grant appellant’s petition for modification as to paragraph 12.

Appellant, at time of trial, was fifty-six years old and a Commander in the Naval Dental Corps. When he entered into the subject agreement in 1967, he was earning approximately $13,000 per year; his gross earnings in 1977 had risen to $37,404 per year.

Appellee, at time of trial, was fifty-four, a college graduate, and earning $16,942 per year. At the time she executed the subject agreement her annual income was $4,545. Because appellee did not testify at the final hearing, the record reflects no circumstances other than the substantial increase. On remand it will be incumbent upon the trial court to determine if such change in the wife’s income is sufficient to require modification under all of the circumstances.

III

Paragraph 3 of the parties’ agreement provides:

3. The husband covenants and agrees to maintain policies of insurance upon his life as follows: Ten Thousand Dollars ($10,000.00) for the benefit of the wife, and Ten Thousand Dollars ($10,000.00) for the benefit of each child, provided, however, that the policy for the benefit of the wife shall be maintained only so long as the wife is living and not remarried and the policies for the benefit of each child shall be maintained for five (5) years from the date hereof. With regard to said life insurance policies, the husband agrees that
(A)He will pay all premiums on the aforesaid policies of insurance when the same become due and payable and he shall maintain them in full force and effect;
(B) He shall exhibit to the wife on reasonable notice proof of payment of the aforesaid premiums;
(C) He shall not at any time change the beneficiaries on said policies of insurance, and he shall do nothing to alter the method of payment of the proceeds thereof, and shall do nothing to alter the method of payment of the premiums thereon;
(D) He shall not borrow on or otherwise encumber the aforesaid policies of insurance.

The issue is whether paragraph 3 is alimony and therefore subject to modification, or whether it is part of the disposition of the parties’ property rights.

It is true that appellant’s obligation terminates on the death or remarriage of ap-pellee, which is characteristic of alimony. However, nowhere does the paragraph recite that the insurance protection is additional alimony, support, or maintenance. We are of the opinion, in the absence of such expression, that the parties intended this provision to be a property right acquired as a part of the property settlement. Gilbert v. Gilbert, 312 So.2d 511 (Fla. 3d DCA 1975); Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3d DCA 1975); Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959).

IV

The fourth issue is whether the trial court erred in awarding appellee attorney’s fees of $1,800.00. We conclude that the award was error under the rationale of Patterson v. Patterson, 348 So.2d 592, 596 (Fla. 1st DCA 1977):

. To support an award of attorney’s fees, the prevailing party must establish that the fee is reasonable, that the requesting party is unable to pay the fee, and that the opposing party is able to pay. 10A Fla.Jur., “Dissolution of Marriage, etc.”, Sections 225, 229. See also Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977). It is not, of course, necessary that the requesting party, in order to establish inability to pay, be proven destitute . . . (Emphasis added).

In this case there was no evidence of appellee’s inability to pay her attorney’s fee. Accordingly, we reverse and remand for further proceedings upon the issue of financial ability to pay attorneys’ fees.

V

The final issue is whether the trial court erred in permitting the introduction of appellee’s answers to interrogatories filed by appellee when appellant initiated his first petition for modification in the original dissolution proceeding. These answers introduced at the final hearing evidenced appellee’s substantially increased income in 1978 in contrast to what it had been in 1968.

Appellee contends that the present proceeding was instituted as a new, separate action and given a new file number at its commencement. She further contends that while Florida Rule of Civil Procedure 1.330(a)(5) permits the use of depositions in subsequent action between the parties, there is no corresponding provision for interrogatories in Florida Rule of Civil Procedure 1.340. It is appellant’s contention that the signed and sworn answers of appellee act as an admission to her financial circumstances and income since the judgment dissolving the marriage.

As noted in Ehrhardt, Florida Evidence § 803.18 (1977): “Admissions by a party-opponent have historically been admissible as substantive evidence.” See also, Hunt v. Seaboard Coast Line Railroad Company, 327 So.2d 193, 195 (Fla.1976). We are of the opinion that the answers to interrogatories were admissible at final hearing as admissions by a party-opponent, and affirm the trial court’s ruling.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Sidney KOHL and Dorothy Kohl, his wife, and Landmark First National Bank of Fort Lauderdale, as Trustee, Appellants, v. BAY COLONY CLUB CONDOMINIUM, INC., a Florida Corporation, not for profit, Albert A. Lucy and Roselind G. Lucy, his wife, Individually and as representatives for the class, Appellees.
    No. 79-2394.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      Davis W. Duke Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellants.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appel-lees.
   HERSEY, Judge.

By Petition for Writ of Common Law Certiorari we are asked to review certain pre-trial orders determining that a condominium association and the owners of a condominium unit have standing to maintain a class action.

Applying standards frequently reiterated by this Court we determine that the writ should not issue. It has not been demonstrated either that the trial court exceeded its jurisdiction or that the essential requirements of law and procedural due process have been violated. See G-W Development Corp. v. Village of Palm Beach, 317 So.2d 828 (Fla. 4th DCA 1975).

However, the fact that petitioners seek the wrong remedy is not fatal to their endeavor. We have authority to provide another remedy if one is available. Fla.R. App.P. 9.040(c).

The question then becomes whether a determination that plaintiffs have standing to pursue a class action is such a non-final order as will support an interlocutory appeal. We answered this question in the negative in Atreco-Florida, Inc. v. Berliner, 360 So.2d 784 (Fla. 4th DCA 1978). The fifth district followed our lead in American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420 (1980) (Fla. 5th DCA 1980). We propose to revisit the question.

The substantive right of a condominium association to bring a class action under appropriate circumstances is embodied in Subsection 718.111(2), Florida Statutes (1979). The procedural machinery for exercising that right is established by Rule 1.220(b), Florida Rules of Civil Procedure. See In re Rule 1.220(b), 353 So.2d 95 (Fla. 1977).

In a class action the plaintiff is asserting the right to litigate on behalf of a class of persons not joined with him in the action. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977). The court obtains personal jurisdiction over the members of the class.

When the court permits a class suit to be brought or defended by one or more of the class, it necessarily follows that absent parties are properly represented and are bound by the decree. Tenny v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942).

It follows that an order determining a class is a non-final order which determines jurisdiction of the person, appealable under Rule 9.130, Florida Rules of Appellate Procedure.

Of necessity we recede from our contrary holding in Atreco-Florida, supra.

Petitioners, now appellants, shall file their initial brief and appendix within fifteen days from the filing of this opinion and subsequent events required or permitted by Rule 9.130, Florida Rules of Appellate Procedure shall be governed accordingly.

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


author: ANSTEAD, Judge. LETTS, Chief Judge,

text:
    Robert MARLIN, Appellant, v. Haynes E. WILLIAMS and Viking Communities Corp., etc., Appellees. VIKING COMMUNITIES CORP., Appellant, v. Haynes E. WILLIAMS, Appellee. Haynes E. WILLIAMS, Appellant, v. VIKING COMMUNITIES CORP., Appellant.
    Nos. 78-312, 78-313 and 78-323.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Rehearing Denied July 30, 1980.
    Larry Klein, West Palm Beach, and Steinberg & Sorota, Miami Beach, for Viking Communities Corp.
    Walter H. Beckham, Jr. and Michael Olin of Podhurst, Orseck & Parks, P. A., Miami, and Gerald James, Fort Pierce, for Robert Marlin.
    George E. Adams of Adams & Hill, Orlando, for Haynes E. Williams.
   ANSTEAD, Judge.

This is an appeal from a final judgment entered in favor of the appellee, Haynes Williams, a real estate broker, on his action against appellant, Viking Communities Corp., for a broker’s commission on the sale of real estate owned by appellant.

Prior to a scheduled jury trial Viking filed a motion asking the trial judge to excuse himself from presiding over the case due to his relationship with the appellee Williams who had served as clerk of the trial court for many years. The trial judge had previously excused himself from presiding over marriage dissolution proceedings involving Williams. In considering the motion the trial judge indicated that he would excuse himself if the case was tried without a jury. However, since the case was to be tried by a jury, he felt that he could continue on the case and rule on issues of law. In his order denying appellant’s motion the court stated:

The Court, however, provides that it will recuse itself in the event that the trial in this case is a non-jury trial, but the Court finds that, in the event of a jury trial, there is no basis for recusation.

A trial judge’s role in the conduct of a case, whether ultimately tried before the judge or a jury, is of such significance that the parties are entitled to the same high standard of neutrality from the judge. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932). Although the appellant has neither alleged nor cited any instances of actual prejudice in the proceedings below, we believe that the trial judge erred in failing to excuse himself once he decided that it would be necessary to grant the motion if the case was to be decided without a jury. The appellee also challenged the technical sufficiency of the affidavits and other supporting proof offered by appellant on this matter. However, we believe any issue as to the sufficiency of proof was rendered moot by the trial judge’s ruling indicating disqualification would be necessary in a non-jury proceeding.

The appellant has also challenged the sufficiency of the evidence. We have reviewed the record and find that the proof presented was sufficient to submit the case to the jury for determination.

Accordingly, this cause is hereby reversed and remanded for a new trial in accordance with the terms of this opinion.

POWELL, ROM W., Associate Judge, concurs.

LETTS, C. J., dissenting in part and concurring in part.

LETTS, Chief Judge,

dissenting in part and concurring in part.

I concur with the majority that the trial judge should have recused himself, but I would not return the matter for a new trial. I am of the opinion that a directed verdict should have been entered because as a matter of law the broker was not entitled to a commission.

The total facts are amorphous and complex, but only a few need be recited to support my conclusion.

In essence, the seller advised the broker that the land was for sale and agreed to pay a commission if the broker procured a buyer. Thereafter the broker contacted a prospective purchaser who did not himself purchase, but instead was instrumental several months later in securing a third party to buy the land in question. That this original non-purchasing prospect was assisted in these instrumental efforts by the broker, we have no doubt, for the latter supplied him with descriptions, appraisals, advice and even suggested the name of the eventual buyer.

Pinning down a legal definition of procuring cause is elusive. See First Realty Corp. v. Standard Steel Treating Co., 268 So.2d 410 (Fla. 4th DCA 1972). The Florida definition appears to require the broker to introduce buyer and seller and be the one whose efforts consummate the sale by way of continuous negotiation and/or involvement. Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 1st DCA 1975) and National Airlines Inc. v. Oscar E. Dooly Assoc., Inc., 160 So.2d 53 (Fla. 3d DCA 1964). All of these requirements and the extent necessary to satisfy them would appear to be questions of fact not law except in unusual circumstances.

As a consequence, in the case now before us, had this original non-purchasing prospect been a licensed broker or salesman, I might not have quarrelled with the finding of fact that the broker’s conduct in this case was sufficient to satisfy the test for procuring cause. However the non-purchasing prospect was not licensed in any way to sell real estate under Florida Law and there is no question but that it was this unlicensed non-purchasing prospect, not the broker, who carried out virtually all of the negotiating over several months between seller and purchaser. The broker never once even talked to or wrote to the purchaser. All this being so, while the unlicensed prospect may have been the agent of the broker and may have been the procuring cause of the sale, he (the agent) had no right whatever to any commissions under Florida Law. It goes without saying that his principal, if such the broker was, could claim no greater right to a commission than his agent who carried out all the negotiations. In this respect I note Section 475.41 of the Florida Statutes (1975) which states:

Contracts of unregistered person for commissions invalid. — No contract for a commission or compensation for any act or service enumerated in subsection (2) of s. 475.01 shall be valid unless the broker or salesman shall have complied with this chapter in regard to registration and renewal of the certificate at the time the act or service was performed.

Judge Anstead’s footnote leaves me unmoved. It matters not who the unlicensed agent represented or that the purchaser gratuitously paid him a “fee.” I still cannot see how the broker can claim a commission from the seller through the unlicensed agent’s efforts. See Willner v. Wilder, 280 So.2d 1 (Fla. 3d DCA 1973).

I would direct a verdict as a matter of law.

      . We have also considered the point discussed by Judge Letts in his dissent. Judge Letts fails to note that there was evidence presented that the “unlicensed prospect” acted as the agent for the purchaser rather than as agent for seller or broker, and that the “unlicensed prospect” was paid a substantial fee by the purchaser and received no compensation from the seller or the broker.


author: BY THE COURT:

text:
    Robert E. HANSEN, Appellant, v. JEROME NAGELBUSH, INC., a Florida Corporation, Appellee.
    No. 79-792.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Rehearing Denied Aug. 4, 1980.
    Francis K. Buckley of Buckley & Bland, Fort Lauderdale, for appellant.
    David B. Mankuta of Law Offices of David B. Mankuta, P.A., Hollywood, for appellee.
   BY THE COURT:

The final judgment appealed from of July 28, 1978, is affirmed on the authority of Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973), and Kinbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976).

AFFIRMED.

ANSTEAD, BERANEK, and HERSEY, JJ., concur.


author: GLICKSTEIN, HUGH S., Associate Judge.

text:
    Lawrence S. ROBERTS, Appellant, v. Lucy N. ROBERTS, Appellee.
    No. 78-2403/NT4-82.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Rehearing Denied Aug. 1, 1980.

      Seymour Benson, Orlando, for appellant.
    No appearance for appellee.
   GLICKSTEIN, HUGH S., Associate Judge.

This is a timely appeal from an order finding appellant’s arrearage in periodic alimony and child support to be $23,465.00, holding him in contempt for non-payment, sentencing him to thirty days imprisonment therefor, and denying his petition for modification. We affirm in part, reverse in part and remand.

The parties’ marriage was dissolved by final judgment on November 9,1972, which judgment obligated appellant to pay periodic alimony of $540.00 per month to appellee, and $250.00 per month for the support of each of their three children. The periodic alimony was not modifiable, but was terminable “as is provided by law for the termination of alimony.” There was an additional provision for lump sum alimony which does not concern us here.

On November 12, 1976, appellant filed a petition for modification, which was not heard until being considered contemporaneously on June 29, 1978 and September 5, 1978 with appellee’s motion for adjudication of contempt served on May 19, 1978. In between the time of appellant’s petition and appellee’s motion, one of the parties’ three children attained majority and appellee remarried.

When the trial court entered the order now being reviewed, it expressly recognized that the oldest child attained his majority on December 12, 1976, and appellee remarried on August 7,1977. However, while the two events were recognized as respectively occasioning the termination of support for the oldest child and of periodic alimony for appellee, their effect upon the trial court’s jurisdiction to adjudicate contempt was not considered.

With respect to the oldest child’s attaining majority prior to the filing of appellee’s motion for adjudication of contempt, the Florida courts have consistently held in such case that contempt is unavailable as a means of enforcing an order which adjudicates an arrearage. In other words, the only remedy available to the mother who petitions after the child has attained his majority is a judgment enforceable by ordinary civil proceedings, not contempt. Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), cert. den. 247 So.2d 437 (Fla.1971); Moreland v. Moreland, 358 So.2d 907 (Fla. 1st DCA 1978); Gersten v. Gersten, 281 So.2d 607 (Fla. 3d DCA 1973). The rationale of such proposition is that once a child has attained majority, the public necessity of providing support for that child when a minor has been accomplished. Accordingly, the trial court in this case was without jurisdiction to consider the enforcement by contempt of an order adjudicating the arrearage for support of the parties’ oldest child.

As for appellee’s remarriage, there is a dearth of authority on the effect of remarriage upon a subsequently filed motion for adjudication of contempt because of non-payment of periodic alimony. There does exist the teasing proposition that periodic alimony is different from child support. It has been said that the former does not terminate automatically on remarriage, but only upon application to the court. Bernst v. Cotter, 256 So.2d 529 (Fla. 4th DCA 1972); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). Neither of these decisions, however, involved an adjudication of contempt and we can find no logical reason to apply them to such situation. There is a necessity in seeing that an unremarried ex-wife receives support, and contempt is the appropriate method of enforcement to fill that necessity. However, once the ex-wife exchanges vows with her new husband, the reason for the former husband’s obligation of support dissipates, and with it, the need for enforcement by contempt. Accordingly, we hold that once an ex-wife has remarried, any subsequent petition for periodic alimony owed to her prior to the remarriage will not be enforceable by contempt; therefore, the trial court in this case was without jurisdiction to enforce by contempt the order adjudicating the arrearage for appel-lee’s periodic alimony.

Placing what has been said in perspective, the trial court should have only entertained a motion for adjudication of contempt as it related to the two minor children of the parties. Entry of a judgment which would be enforceable by ordinary civil proceedings was the only relief which the trial court should have considered as to the oldest child and appellee. It follows that the order of adjudication of contempt can be affirmed as to the two minor children but must be reversed as to the oldest child and appellee.

Appellant contends that the trial court erred in denying his petition for modification which he filed in 1976 but did not have heard until 1978. We find no error in the trial court’s ruling on this issue.

We are of the further opinion that discussion of appellant’s other points is unnecessary.

On remand, because the trial court must limit its adjudication of contempt to sums owed for the support of the minor children, it follows that the conditions under which appellant may purge himself must also be reconsidered.

AFFIRMED in part, REVERSED in part, and REMANDED.

LETTS, GAVIN K., and ANSTEAD, HARRY LEE, Associate Judges, concur.

      . The record is silent as to the reason for the delay between the filing of the petition for modification and the hearing thereon.


text:
    Otis R. PEAVY, as Personal Representative of the Estate of Martha L. Peavy, Deceased, and Otis R. Peavy, Individually, Appellant, v. Reed PARRISH and Wayne Parrish, Appellees.
    No. 79-1377.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied July 29, 1980.

      Cecil T. Farrington of Farrington & Far-rington, Fort Lauderdale, and Davis, Browning & Hardee, Madison, for appellant.
    Michael G. Widoff of Widoff & Cohn, Fort Lauderdale, for appellees.
   HERSEY, Judge.

Appellees filed a claim against the estate of their deceased mother in probate proceedings in Broward County, Florida. The surviving spouse of the decedent, as personal representative of the estate, filed an objection to the claim.

A complaint was then filed in the Circuit Court in Broward County seeking to enforce an alleged oral promise of the decedent. One form of relief sought was the imposition of a constructive trust on decedent’s real estate located in Broward County-

Appellant countered with motions to transfer venue and to dismiss the complaint. The motions were denied and this appeal followed.

The motion to dismiss asserted failure of the complaint to state a cause of action. An order denying such a motion is a non-final order. The applicable rule, Rule 9.130, Florida Rules of Appellate Procedure, does not permit an appeal of such an order. E. E. Dean Suavely, Inc. v. Weatherking, Incorporated, 359 So.2d 35 (Fla. 4th DCA 1978).

The motion to transfer venue asserts that suit must be brought in the county of appellant’s residence. Venue of the probate proceedings was properly laid in the county of decedent’s last residence, Broward County. § 733.101, Fla.Stat. (1979). However, the statutory provision under which appellees filed this independent action does not refer to venue. § 733.705(3) Fla.Stat. (1979). Therefore, the general venue statute applies. § 47.011 Fla.Stat. (1979).

Plaintiffs, appellees here, have certain limited options in selecting venue. Their election controls, unless venue will not lie in that place. Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla. 4th DCA 1975). The complaint seeks to impose a constructive trust on decedent’s condominium. This real property is located in Broward County. The venue statute clearly permits plaintiff-appellee to select that county for venue purposes. Appellant has therefore failed to show either that venue will not lie in Broward County or that venue should be changed for some good reason. Florida Forms, Inc., supra.

Accordingly, we affirm.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    The MURRAY-OHIO MANUFACTURING COMPANY, a Foreign Corporation, and California Union Insurance Company, a Foreign Corporation, and Employers Reinsurance Corporation, a Foreign Corporation, Appellants, v. Ernest B. PATTERSON and June M. Patterson, Appellees.
    No. 79-42.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Rehearing Denied July 17, 1980.

      Ernest J. Rice, Orlando, for appellants.
    Hale Baugh of Stromire, Westman, Lintz, Baugh, McKinley, Antoon, Clifton & Pearce, P.A., Cocoa, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

The defendant below, the manufacturer of an allegedly defective lawn tractor, appeals from a judgment rendered against it upon an adverse jury verdict in a strict liability case. The only point which gives us pause concerns the rebuttal portion of the plaintiffs’ final argument, in which counsel improperly referred to the Ford Pinto and Firestone 500 cases notwithstanding the fact that the trial judge had twice sustained objections to such references during the course of the trial. While we certainly do not approve of this conduct, the record shows that defense counsel made no contemporaneous objections to the argument at the time it was made and raised the issue below only in a motion for mistrial after the jury had been instructed and had retired to consider its verdict. Since the comment, taken in context, was not so inflammatory as to destroy the defendants’ right to a fair trial and thus to constitute fundamental error, it is apparent that the mistrial motion came far too late to preserve the issue for review. See State v. Cumbie, 380 So.2d 1031 (Fla.1980); Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); Bishop v. Watson, 367 So.2d 1073 (Fla.3d DCA 1979); Sears, Roebuck & Go. v. McAfoos, 303 So.2d 336 (Fla.3d DCA 1974); H. I. Holding Co. v. Dade County, 129 So.2d 693 (Fla.3d DCA 1961). We find no other error, and the judgment below is therefore

AFFIRMED.

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


author: LARRY G. SMITH, Judge.

text:
    MAPLE CHAIR COMPANY, a Foreign Corporation authorized to do business in the State of Florida, Appellant, v. W. S. BADCOCK CORPORATION, a corporation authorized to do business in the State of Florida, Appellee.
    No. SS-39.
    District Court of Appeal of Florida, First District.
    June 5, 1980.
    Rehearing Denied July 28, 1980.

      Peter J. Kellogg, of Grissett, Humphries & Neder, Jacksonville, for appellant.
    Carle A. Felton, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Maple Chair Company appeals a summary judgment awarding attorney’s fees to ap-pellee, W. S. Badcock Corporation. Maple Chair contends that although Badcock was required to defend a products liability suit brought against them jointly by a purchaser of a defective rocking chair, which was manufactured by Maple Chair and sold by Badcock, the award of attorney’s fees to Badcock on the theory of indemnification under the active-passive negligence rule was premature, since no judgment has yet been recovered by the customer against Maple Chair. We agree with this contention, and reverse.

In the customer’s action against the parties, Badcock cross-claimed against Maple Chair for indemnity, based upon its allegation that since Maple Chair was the manufacturer, Maple Chair’s negligence, if any, was active, whereas Badcock could be guilty only of passive negligence in that it delivered the rocking chair to the customer without removing it from the package. Bad-cock applied for a partial summary judgment on its cross-claim against Maple Chair, and the trial court, agreeing with Badcock’s contention that its negligence, if any, was passive in nature, found that Bad-cock was entitled to indemnity from Maple Chair, and awarded attorney’s fees, the amount to be considered at a later date. Badcock subsequently moved for and was granted a summary judgment on the claim of the plaintiff in the main suit, and its application for assessment of attorney’s fees against Maple Chair was then granted by the trial court. Meanwhile, there has been no trial of the plaintiff’s action against Maple Chair, and there has been no finding of a judgment of liability on the plaintiff’s suit against Maple Chair.

We agree with Maple Chair’s position that the two cases, Insurance Company of North America v. King, 340 So.2d 1175 (Fla.4th DCA 1976), and Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla.4th DCA 1978), do not support the award of attorney’s fees in this case. The distinguishing feature is that in each of those cases a judgment had been rendered against one defendant before indemnification was allowed to the other defendant. Here, Badcock has received an award of attorney’s fees even though no judgment has been entered against it or Maple Chair.

The position of Maple Chair is supported by Diaz v. Western Venturers, Inc., 467 F.2d 1361 (5th Cir. 1972), in which a ship repairman brought an action against a shipowner for personal injuries and lost income. The shipowner filed a third party action for indemnification against the repairman’s employer. Because Diaz was unable to prove that his injuries occurred on the ship in question, the court found that the issue of whether or not there had been a breach of warranty of workmanlike performance had never been reached. The court said that if the repairman’s employer were obligated to indemnify by virtue of the breach of its legal duty, such obligation would extend to the litigation expenses of the shipowner for defending the suit. However, the court held, absent a finding of breach of warranty by the repairman’s employer, the employer would not be liable for expenses of the shipowner’s successful defense of the personal injury action.

We disagree with Badcock’s contention that it is entitled to be indemnified by recovery of attorney’s fees expended in defense of the law suit, regardless of whether the injured customer ultimately recovers a judgment against Maple Chair Company. Since there is no contractual duty, either express or implied, imposing an obligation upon Maple Chair to pay Bad-cock’s defense costs, those cases awarding attorney’s fees based upon some contractual duty are inapplicable. See Pender v. Skillcraft Industries, Inc., supra. Badcock’s sole basis for recovery of defense costs would be based upon the equitable principle of indemnity, which is defined as a right which enures to a person who has discharged a duty which is owed by him but which, as between himself and another, should have been discharged by the other. Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977). Badcock cites no authority in support of its contention that a manufacturer’s duty to the retailer extends to the expenses of litigation where the retailer has been absolved of liability, and it has not yet been determined that the manufacturer was at fault. We know of no theory upon which it can be said that a manufacturer has a duty, absent an express contract, to insulate its retailers from unproven claims of dissatisfied customers. Finally, liability for Badcock’s attorney’s fees cannot be imposed upon Maple Chair by means of the summary judgment finding Badcock only passively negligent, unless and until it has been determined that Maple Chair has been guilty of the wrongful acts alleged in the suit against it.

The summary final judgment awarding attorney’s fees to appellee-Badcock is reversed, and the cause is remanded.

MILLS, C. J., and SHIVERS, J., concur.


author: McCORD, Judge.

text:
    Erik JOHNSON, as Personal Representative of the Estate of Nancy M. Johnson, Deceased, Appellant, v. Robert G. MULLEE, M.D., and Aetna Casualty & Surety Company, Appellees.
    No. MM-430.
    District Court of Appeal of Florida, First District.
    June 6, 1980.
    Rehearing Denied Aug. 8, 1980.

      Edna L. Caruso, and Christian D. Searcy of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
    L. William Graham of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, Gainesville, for appellees.
   McCORD, Judge.

This appeal is from a final summary judgment in a medical malpractice suit ruling that appellant’s action is barred by the statute of limitations. We reverse.

The deceased and her husband Erik Johnson (now personal representative of the Estate of Nancy M. Johnson, deceased) began this action by filing a medical liability mediation claim for medical malpractice against appellee on November 29,1976. The mediation panel found that appellee was not guilty of actionable negligence. Within 60 days of the conclusion of the mediation claim, the deceased and her husband filed a personal injury action against appellee. When Nancy Johnson died on January 3, 1978, appellant filed an amended complaint for wrongful death against appellee doctor and his medical malpractice insurer. The undisputed facts are as follows: On September 22, 1972, 26-year-old Nancy Johnson consulted appellee doctor for a breast examination. The doctor found “diffusely cystic areas” in Nancy’s left breast but pursued no investigation into the nature of those lumps. Nancy next visited the doctor on March 1,1973, to have him remove an IUD. He did not examine her breasts again at that time. On March 7, 1973, having noticed a discharge from her left breast, Nancy consulted her father, a surgeon, who, after examining her breast, performed a biopsy, and a subsequent radical mastectomy on March 12,1973, after which his suspicion of malignancy was confirmed. Pathology reports on the removed tissues following the operation showed cancer of the breast with metastasis to three auxiliary lymph nodes. Thus, at that time, Nancy had actual knowledge of the alleged negligent failure of appellee doctor to diagnose her cancer, and of the metastasis of the cancer to her lymph nodes. No evidence of further metastasis beyond the lymph nodes was found prior to February 1975, when metastatic cancer showed up on a bone scan, and it was determined that the cancer had spread to the ribs and skull. Despite treatments and operations, Nancy died in January 1978 from the spread of metastatic breast cancer.

The trial court ruled that as a matter of law whatever cause of action Nancy had against appellee doctor for negligent failure to diagnose breast cancer accrued in March 1973 when the correct diagnosis was made and metastasis to the lymph nodes was discovered because at that time Nancy had notice of the alleged negligent act and of an allegedly resultant injury and consequent damage, although she may not have had actual notice of the ultimate extent of the injury and consequent damage until a later date. The court found that Nancy’s cause of action was barred in March 1975 by the two-year statute of limitations for claims based upon medical malpractice. The court further found:

. Under the provisions of section 768.19 and Florida decisionary law, a bar to the decedent’s right to recovery for her personal injury had she lived will also bar any subsequent recovery for her wrongful death by her personal representative; and that since decedent would not have been entitled within the intendment of § 768.19 to maintain an action if death had not ensued, her personal representative has no statutory right of action for wrongful death.

The statute of limitations applicable to malpractice claims from July 1, 1972, to January 1, 1975, is contained in Florida Statutes 1973 and provides as follows:

95.11(6) WITHIN TWO YEARS.— . . . an action to recover damages for injuries to the person arising from any medical . . treatment or surgical operation, the cause of action in such cases not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury. (Emphasis added.)

The foregoing statute was amended effective January 1, 1975, by Chapter 74-382, Laws of Florida, to provide:

95.11(4) WITHIN TWO YEARS.—
(a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. (Emphasis added.)

The statute as amended remained in effect until May 20, 1975, when by Chapter 75-9, Laws of Florida, a new amendment was adopted, which provides in pertinent part as follows:

(b) An action for medical malpractice shall be commenced within 2 years from the time the incident occurred, giving rise to the action, or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence [§ 95.11(4)(b), Florida Statutes 1975 (emphasis added).]

Appellee contends that the applicable statute of limitations was the one in effect in 1976 when decedent’s claim in medical mediation was filed; that under that statute, decedent had a cause of action in 1973 in that she discovered the “incident” giving rise to the action in 1973 when she learned that appellee doctor had allegedly failed to diagnose cancer; that two years expired thereafter before the claim was filed. We disagree. The applicable statute was the one which was in effect from January 1, 1975, to May 20, 1975. It was during the effective period of that statute that decedent discovered her cause of action. It was in February 1975 that she first learned that the cancer had metastasized beyond the surgically removed portions. From the evidence presented, there is no basis on which to conclude that her cause of action should have been discovered with due diligence prior to that time. Although she had a basis for belief that appellee doctor was negligent in not discovering her cancer, the evidence is to the effect that, had he discovered the cancer at that time, she would have been required to undergo the same radical mastectomy, which she later had. At the time the radical mastectomy was performed, she had no cause of action against appellee doctor because there was no evidence that his alleged negligence had resulted in any harm to her. It was only in February 1975, when the cancer appeared in other parts of her body, that she discovered her cause of action. It was only then that she could have known she had been harmed by the alleged negligent diagnosis. From the evidence presented, appellant’s claim was not barred under the statute in effect from July 1,1972, to July 1,1975, nor was it barred by the statute which was in effect from January 1, 1975, to May 20, 1975. Under the former, decedent’s cause of action would not have accrued until she discovered, or through the use of reasonable care should have discovered the injury. Under the evidence as aforesaid, she did not discover, and through the use of reasonable care would not have discovered, the injury prior to February 1975. Under the latter statute, from the evidence presented, the cause of action likewise was not discovered and through the exercise of due diligence would not have been discovered until February 1975.

In City of Miami v. Brooks, 70 So.2d 306 (Fla.1954), the Supreme Court stated the general rule as follows:

The general rule, of course, is that where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. 34 Am.Jur. 126, Sec. 160, Limitation of Actions.

That rule stated in Brooks, which the court there also pointed out was applied in Cris-tiani v. City of Sarasota, 65 So.2d 878 (Fla.1953), does not defeat appellant’s contention that the statute here began to run February 1975. Here, as previously pointed out, there was no indication that decedent had sustained an injury as a result of the alleged negligence until that time. In Brooks, plaintiff was given x-ray treatment to her foot in 1944. Injury therefrom developed and first became known in 1949. While there the court pointed out that there was nothing to put plaintiff on notice of any probable or even possible injury prior to 1949, we do not consider such statement to be a controlling statement of the law. It is knowledge of injury which the court stated as the criterion under the general rule and not notice of probable or possible injury. In the case sub judice, while decedent may have had reason to believe that it was possible that her operation did not cure her cancer, she would have had no basis for then filing a lawsuit because she had no knowledge that the cancer had spread and, thus, no knowledge of injury.

Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), relied upon by appellees is materially different factually from the case sub judice. There, the injury resulting from an operation upon plaintiff’s infant child was known prior to the child’s discharge from the hospital, but the plaintiffs contended that they had no reason to have knowledge of the alleged negligence for a considerable period of time thereafter. The case turned upon when the parents had cause to know of the negligence, and the court held that the parents had such cause when the negligence was readily ascertainable from hospital records which were available to them.

In the case sub judice, the statute of limitations which was in effect at the time of appellee’s alleged negligent diagnosis and at the time of the radical mastectomy specifically provided that a cause of action would not be deemed to have accrued until the plaintiff discovers, or through the use of reasonable care should have discovered, the injury. It is significant that it provides for discovery of the injury and not discovery that there may be possible injury. The subsequent statute which was in effect at the time the bone scan revealed injury, provides that the period of limitation shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. Here, since no injury was discovered until the bone scan and since there is no evidence that injury should have been discovered by decedent prior thereto with the exercise of due diligence, the cause of action likewise was not discovered until that time. The decedent could not have discovered a cause of action prior to discovering that she had been injured.

Reversed and remanded.

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


author: SHIVERS, Judge.

text:
    Samuel Ray JONES, Appellant, v. STATE of Florida, Appellee.
    No. SS-222.
    District Court of Appeal of Florida, First District.
    June 9, 1980.
    Rehearing Denied July 29, 1980.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant was found guilty of sexual battery and kidnapping by a jury and this appeal was taken from the judgment and resulting sentence. He has presented four points on appeal, two of which merit discussion and are as follows: (1) The court erred in denying a motion for mistrial when the prosecutor insinuated during questioning of a state witness that threats had been made against the witness if she testified against appellant. (2) The trial court should have dismissed the kidnapping count in the information for failure to state the particular felony appellant allegedly intended to commit or facilitate by the confinement of the victim. We agree and reverse.

Appellant contends the trial court erred in denying his motion for mistrial when the prosecutor insinuated during questioning of a state witness, Ruby Davis, that she had been threatened by someone if she testified against appellant. The trial transcript indicates that the prosecutor asked Davis, on redirect examination, whether anyone had threatened her if she testified against appellant. Although appellant objected to the question, the trial court denied the objection. Then, outside the presence of the jury, appellant moved for mistrial and renewed his objection to admitting testimony as to alleged threats against Davis, contending such testimony was irrelevant and prejudicial. The trial court denied the objection and motion for mistrial and thereafter, in the presence of the jury, the following examination took place:

BY MR. EDWARDS [prosecutor]:
Q. Ruby, back up to the last question I asked you. Has anyone threatened you with regard to your testimony here today?
A. No.
Q. Have you gotten the word from the street that something will happen to you?
MR. COTNEY [defense counsel]:
Your Honor, I’m going to object. She testified, “No.”
THE COURT:
Objection overruled.
BY MR. EDWARDS:
Q. Ruby, have you had any conversation about what would happen to you about testifying here today?
A. No, sir.
Q. Did we discuss earlier about that?
A. Yes.
Q. All right. And what did you say at that point just a few minutes ago?
A. When?
Q. Right when you were sitting right there in that chair.
A. What you asked me?
Q. About statements being made to you about your testimony here today.
A. I understood what you had said in the office.
Q. When we were down here and you were testifying awhile ago before you identified the Defendant in this case, did you tell us about some conversation about your testimony here?
MR. COTNEY:
Your Honor, I’m going to object not only to Counsel attempting to testify, but he’s also leading the witness.
MR. EDWARDS:
I’m asking an objective question, Your Honor.
THE COURT:
Objection is overruled.
THE WITNESS:
I can’t remember.
MR. EDWARDS:
Okay. All right. I have no further questions.

Additionally, appellant renewed his motion for mistrial and again raised the issue in his motion for new trial, both of which were denied by the trial court.

The clear impression from the above examination of the witness by the prosecutor was that appellant, or someone connected with him, had made threats against the witness to keep her from testifying against appellant. There was no attempt to show appellant had either made such threats or was aware that threats had been made against the witness. Moreover, the evidence was presented in such a way as to insinuate in the minds of the jury that appellant was guilty because someone had threatened the witness.

An attempt by a defendant or third person to induce a witness not to testify or to testify falsely is admissible on the issue of defendant’s guilt, provided it is shown that the attempt was made with the actual participation, knowledge, or authorization of the defendant. Duke v. State, 106 Fla. 205, 142 So. 886 (1932). Absent a link to the defendant, the issue of whether a witness is subject to improper influence is irrelevant and collateral to the issue of whether the defendant committed the crime for which he is charged and its admission over objection is grounds for the granting of mistrial and the denial thereof would be reversible error. Johnson v. State, 355 So.2d 200 (Fla.3d DCA 1978). Furthermore, the admission of such evidence could only serve to create undue prejudice in the minds of the jury against the accused. Coleman v. State, 335 So.2d 364 (Fla.4th DCA 1976).

Since there was no evidence presented to connect appellant to any threats against the witness as insinuated by the prosecution in its examination, appellant’s motion for mistrial should have been granted.

Inasmuch as appellant may be retried, it is appropriate to address the issue of whether the trial court erred in denying appellant’s motion to dismiss the kidnapping count of the information for failure to state the particular felony he intended to commit or facilitate by the alleged kidnapping. The information states:

And for a second count of this information your informant further charges that Ralph Warren Hall and Samuel Ray Jones, on the 18th day of April, 1978, in the County of Duval and State of Florida, without lawful authority did then and there forcibly, secretly, or by threat, confine, abduct or imprison another person, to wit: Bryan Bruce, against Bryan Bruce’s will, with the intent to commit or facilitate the commission of any felony, in violation of Florida Statute 787.01. (Emphasis added)

Section 787.01(l)(a), Florida Statutes (1977), provides:

‘Kidnapping’ means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without authority, with intent to:
# * * # * *
2. Commit or facilitate commission of any felony.

Appellant contends the kidnapping charge was insufficient to state a crime, and prejudiced him in preparation of his defense and in protecting him from double jeopardy by its failure to allege the felony which he intended to commit by the secret confinement of Bryan Bruce.

The trial court erred in not dismissing the kidnapping count against appellant because the information does not set out or describe the felony that the defendant was intending to facilitate or commit by the act of secretly confining Bryan Bruce. The identity of the felony appellant was allegedly intending to facilitate or commit was an essential element of the crime charged and was essential to an adequate information that complied with Rule 3.140(d)(1), Florida Rules of Criminal Procedure. The omission of such a material portion of the charge rendered the information so vague and indefinite as to mislead the appellant, prejudicing the preparation of his defense. The fact that Count I of the information charged appellant with sexual battery is of no consequence. Each count of the charging document must stand alone and cannot be determined by reference to another count. Davis v. State, 371 So.2d 721 (Fla.1st DCA 1979).

The remaining points urged for reversal by appellant have been considered and rejected. Accordingly, the judgment and sentence is reversed and the case is remanded for a new trial.

ERVIN and SHAW, JJ., concur.


text:
    STATE of Florida, Appellant, v. Kelly SCOTT and Lawrence O. Kelly, Appellees.
    No. PP-341.
    District Court of Appeal of Florida, First District.
    June 10, 1980.
    Rehearing Denied July 29, 1980.

      William E. Whitley, Asst. State’s Atty., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, David J. Busch, Asst. Public Defender, for appellees.
   LARRY G. SMITH, Judge.

The State appeals an order suppressing tape recordings of conversations between appellees, Scott and Kelly, and an informant working as an agent of the Ala-chua County Sheriff’s Department, in connection with controlled purchases of illegal drugs from appellees. The State contends that the tape recording of the conversations violates neither Article I, Section 12, Florida Constitution, nor the Fourth Amendment, U.S. Constitution, and that no intercept warrant was required (under Chapter 934, Florida Statutes), because the informant participating in the conversations gave prior consent for the recording, and the purpose of the interception was to obtain evidence of a criminal act. We agree that it was error to suppress the tape recordings, and we reverse.

The informant, King, in exchange for resolution of criminal charges pending against her, agreed to work as an agent at the direction of law enforcement officers to provide evidence of illicit drug traffic in Gainesville. On two occasions, according to the State, she entered the home of Scott and purchased cocaine. Each time she voluntarily consented to wear a concealed microphone and transmitter, by means of which each of the drug transactions was tape recorded by officers outside the home. Appellee Kelly allegedly was present and participated in both sales. It is conceded that no intercept warrant was obtained, and no contention is made by the State that the officers had insufficient time to obtain a warrant.

Section 934.03(2)(c), Florida Statutes (1977), provides:

(c) It is lawful under this Chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

It is clear that no warrant (as authorized by Section 934.07, Florida Statutes (1977)) was required for this interception made with the cooperation of informant King, because the requirements of the above quoted statute were satisfied. King, a party to the conversation, had given her prior consent, she was working under the direction of law enforcement officers, and the recording of her conversation with appellees was for the purpose of obtaining evidence of a criminal act.

The applicable Florida Constitutional provision, Article I, Section 12 (Florida Constitution, as amended 1968), provides:

SECTION 12. Searches and Seizures.— The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of the evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

It is now well-established in Florida law that the above constitutional prohibition against the “unreasonable interception of private communications” may be satisfied either by obtaining a warrant (under Section 934.07), or by assuring that one of the parties to the communication has given pri- or consent to the interception, and, if consent is relied upon, such consent is evidenced by the testimony of the consenting party, subject to cross-examination, as a condition precedent to the introduction of the recording into evidence. Tollett v. State, 272 So.2d 490 (Fla.1973); and Franco v. State, 376 So.2d 1168 (Fla. 3rd DCA 1979).

It is equally clear that there is no Fourth Amendment impediment to the surreptitious recording of criminally incriminating conversations between a consenting police agent or informant and one who has been or is engaged in criminal activity. Tollett v. State, supra. The opinion in Franco v. State, supra, addressed the point as follows:

The law is well established that the use of secret informers by the government is not per se unconstitutional and the Fourth Amendment does not protect a wrongdoer’s misplaced belief that a person to whom he voluntarily confides, his wrongdoing will not reveal it. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d [374] (1966); see also Walker v. State, 222 So.2d 760 (Fla. 3rd DCA 1969), and cases cited therein. The above principle is applicable to Article I, Section 12 of the Florida Constitution (1968) and is codified in Section 934.03(2)(c), Florida Statute (1975) ....

The Florida Supreme Court in Tollett v. State, supra, relying upon United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1970), recognized that the Fourth Amendment does not forbid electronic surveillance made with the consent of one or more of the conversants. The opinion in United States v. White, by Mr. Justice White (joined by Mr. Justice Stewart, who authored the opinion for the court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)), contains the following discussion of electronic broadcasts and recording by a consenting party to a conversation:

The Court of Appeals understood Katz to render inadmissible against White the agents’ testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.
Hoffa v. United States, 385 U.S. 293 [87 S.Ct. 408, 17 L.Ed.2d 374] (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, “no interest legitimately protected by the Fourth Amendment is involved,” for that amendment affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, at 302 [87 S.Ct. at 413.] No warrant to “search and seize” is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U.S. 206 [87 S.Ct. 424, 17 L.Ed.2d 312] (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U.S. 427 [83 S.Ct. 1381, 10 L.Ed.2d 462] (1963).

Appellees argue, in support of the trial judge’s suppression order (1) that notwithstanding the prior consent of a party to the conversation, the intercept evidence is not admissible unless a warrant has been obtained, where it is practicable to secure a warrant; and (2) there is an increased expectation of privacy in conversations in the home, so that while a wrongdoer may have no constitutional protection against the testimony of the informant concerning what occurred, the risk of disclosure assumed by the wrongdoer does not extend to the possibility that his private conversation is being monitored and recorded by others outside the home. Appellees’ contentions are based almost entirely upon the Third District’s decision in Sarmiento v. State, 371 So.2d 1047 (Fla. 3rd DCA 1979).

There are several reasons why we find the Sarmiento decision cannot be relied upon to support the order of suppression. First, the facts in Sarmiento materially differ from those in this case. Sarmiento involved the admissibility of testimony of officers who engaged in “warrantless electronic eavesdropping” (id. at 1049), accomplished by means of a hidden electronic “body bug” worn by an undercover officer which transmitted his conversations with the defendant, inside defendant’s house trailer, to where they were electronically monitored by other officers stationed nearby outside the house trailer. In contrast, this case involves admissibility of tape recordings of the conversation conducted inside appellee’s home, rather than admissibility of testimony of officers concerning unrecorded conversations overheard by means of electronic eavesdropping.

The second reason for our rejection of appellees’ arguments based upon Sarmien-to, is that it relied upon a prior decision of the same court, State v. Muscara, 334 So.2d 167 (Fla. 3rd DCA 1976), for the proposition that even where prior consent of one party to the communication has been obtained, electronically intercepted conversations are inadmissible unless obtained by means of an intercept warrant, unless the State demonstrates that it was not practicable under the circumstances for the police to have applied for and obtained such a warrant. However, in Franco v. State, supra, the Third District receded from this holding of Mascara.

The third reason why we find Sarmiento inapplicable is that it is based in part upon the same court’s earlier decision in Hajdu v. State, 189 So.2d 230 (Fla. 3rd DCA 1966), for the proposition that it is a violation of both the federal and Florida constitutions for government agents to electronically eavesdrop without a warrant on a private conversation between the defendant and an undercover police officer in the privacy of the defendant's home and thereafter to testify in court as to what they overheard. Appellees have overlooked significant statements by the Hajdu court regarding what its decision would have been had the facts in that case been analogous to those in this case; that is, if the issue had been admissibility of recordings of the conversation. In Hajdu, the informant, White (an employee of a private detective agency working for the State Board of Medical Examiners) carried a radio transmitter on her person by means of which her conversations with the defendant inside his apartment were electronically transmitted and monitored by a witness outside. The issue was admissibility of the outside witnesses’ testimony, not admissibility of testimony of the witness White as to what transpired, and there were no tape recordings involved. It is clear what the result would have been had the issue been the same as in this case, that is, the admissibility of tape recordings of the in-house testimony. The Hajdu court stated:

The person in the instant case who is analogous to the witness in the Gomien [v. State, 172 So.2d 511 (Fla.App.)] case was the witness White, and she was permitted to testify as to what transpired in the appellant’s premises. And, if she had recorded. the conversation, then upon proper authentication [if otherwise admissible] any such transcription would have been admissible under Gomien v. State, supra; Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, and other authorities.

We recognize and appreciate the concerns voiced by Judge Hubbart, writing for the court in Sarmiento, and dissenting in Franco. But we agree with Judge Hubbart, as he acknowledged in Franco v. State (at 1171) that the views he expresses have not prevailed in cases interpreting the Fourth Amendment; and with the Third District’s recession from Muscara, these views obviously have not prevailed as an interpretation of the Florida Constitution. While we may agree philosophically that “a person should have a reasonable expectation of privacy whenever he talks to another person that a verbatim tape recording is not being made of the conversation,” (Franco, dissent page 1171), we disagree that the protection of the constitution should be extended to communications evidencing criminal transactions, disclosed and recorded by prior consent of one of the participating communicants, when the consent and the valid purposes of the interception are properly authenticated as required by Tollett v. State. We find the logic and reasoning of Mr. Justice White in United States v. White, supra, especially compelling on this point:

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300-303 [87 S.Ct., at 412-14.] For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States [343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270] supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
* * * * * *
So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hof fa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. See Lopez v. United States, 373 U.S. 427 [83 S.Ct. 1381, 10 L.Ed.2d 462] (1963).
* * * * * *
Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.
It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a “reasonable” investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an “unreasonable” and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. § 2510 et seq. (1964 Ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance, § 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra.

We find it unnecessary to pass upon the question involved in Sarmiento, that is, whether under the Florida Constitution testimony of the recording officers, standing alone, as opposed to the tape recording itself, and testimony concerning the making of the tape recording, would be admissible, since that question is not presented to us. We further conclude that no distinction logically can be made, as suggested by appel-lee, on the basis that the transaction here occurred in the home of appellee. We note that one of the conversations involved in United States v. White, supra, took place in the home of the accused; and in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), some took place in the defendant’s hotel suite. See also Hajdu v. State, supra. We emphasize, however, that these cases require consent by one party and do not authorize either wiretapping or electronic eavesdropping by means of an unlawful invasion of premises in order to obtain such evidence.

The order appealed from is reversed, and the cause is remanded for further proceedings.

MILLS, C. J., and SHIVERS, J., concur.

      . Mr. Justice White’s opinion in United States v. White was joined in by Chief Justice Burger, and Justices Stewart and Blackmun. Mr. Justice Black concurred in the result, based upon his opinion, expressed in his dissent in Katz v. United States, supra, that the Fourth Amendment has no application to electronic “eavesdropping.”

      . Pending on determination of jurisdiction in Florida Supreme Court, Case No. 57-173.

      . Note however, that such evidence is clearly admissible under decisions of the Supreme Court of The United States, United States v. White, supra.

        . Hajdu v. State, supra, was decided prior to 1968 amendment, Article I, Section 12, Florida Constitution, above quoted.


author: PER CURIAM.

text:
    GENERAL DEVELOPMENT UTILITIES INC. et al., Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, DIVISION OF ADMINISTRATIVE HEARINGS, Appellee. FLORIDA CITIES WATER COMPANY et al., Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, DIVISION OF ADMINISTRATIVE HEARINGS, Appellee. FLORIDA WATERWORKS ASSOCIATION et al., Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, DIVISION OF ADMINISTRATIVE HEARINGS, Appellee.
    Nos. SS-429 to SS-431.
    District Court of Appeal of Florida, First District.
    June 10, 1980.

      Gary P. Sams, of Hopping, Boyd, Green & Sams, Tallahassee, for appellants General Development Utilities, Inc., et al.
    B. Kenneth Gatlin, John W. Costigan, Ross A. McVoy, and Ben E. Girtman, of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellants Florida Cities Water Company, et al.
    R. M. C. Rose, of Myers, Kaplan, Levin-son, Kenin & Richards, Tallahassee, for appellants Florida Waterworks Association, et al.
    Leon F. Olmstead, Staff Counsel, Marta M. Crowley, Staff Counsel and Prentice P. Pruitt, Legal Director, for appellee Florida Public Service Commission, Division of Administrative Hearings.
   ON MOTION TO DISMISS NOTICE OF APPEAL

PER CURIAM.

Appellants, the Florida Waterworks Association and other water and sewer utilities, seek review of an order of a hearing officer of the Division of Administrative Hearings, Department of Administration (DOAH), holding that two proposed rules of the Public Service Commission (PSC) constitute an invalid exercise of delegated legislative authority because of an inadequate economic impact statement.

By motion to dismiss the notice of appeal, PSC argues that the issues presented by this appeal are moot because the two proposed rules have been withdrawn by PSC pursuant to the mandates of Section 120.-54(4)(c), Florida Statutes. In their response Appellants argue that, although they prevailed on the ground of the inadequacy of the economic impact statement, review of the hearing officer’s adverse rulings on their other statutory and constitutional arguments remains necessary. Appellants’ express concern and reason for seeking review is that, if PSC reproposes the same rules with a revised economic impact statement, they may be precluded from relitigating these other statutory and constitutional arguments due to the doctrines of res judicata or collateral estoppel.

It is a long standing rule that a judgment or decree wholly in favor of a party may not be appealed by him, for he is not aggrieved thereby. North Shore Bank v. Surfside, 72 So.2d 659 (Fla.1954). In such an instance the appeal will be dismissed. Witt v. Baars (1895) 36 Fla. 119, 18 So. 330; Credit Industrial Co. v. Mark Chemical Co., 67 So.2d 540 (Fla.1953). Such is the case here; the hearing officer determined that the inadequacy of the economic impact statement rendered these rules an invalid exercise of delegated legislative authority. Since the Appellants prevailed, they are not aggrieved parties. Thus, their appeal must be dismissed.

We are not unmindful of Appellants’ concern that the hearing officer’s order may constitute res judicata or collateral estoppel in any future rulemaking proceeding regarding the same or similar subject matter. This concern, however, is unwarranted. The strict holding of the subject order is that the inadequate economic impact statement invalidates the proposed rules. It is solely dispositive of the case. The hearing officer’s pronouncements on the other statutory and constitutional issues are thus immaterial to the decision and are dicta upon which no claim of res judicata or collateral estoppel could lie.

PSC’s Motion to Dismiss Notice of Appeal is hereby granted.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.

      . “The hearing officer may declare the proposed rule wholly or partly invalid. The proposed rule or provision of proposed rule de-dared invalid shall be withdrawn from the committee by the adopting agency and shall not be adopted."


author: BASKIN, Judge.

text:
    VARIETY CHILDREN’S HOSPITAL, INC., Appellant, v. Jean VIGLIOTTI, Appellee.
    No. 79-959.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 31, 1980.
    Atkinson, Golden, Bacen & Diner and Constance J. Kaplan, Hollywood, for appellant.
    Mason & Meyerson and John C. Maine, Jr., Miami, for appellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   BASKIN, Judge.

Variety Children’s Hospital appeals from a final order dismissing its complaint against Jean Vigliotti for payment for medical services rendered to her minor child. The trial court found that a written agreement to pay, signed by the father at the time of the child’s admission, superseded any implied contract against the mother and foreclosed any possibility of liability on her part. We disagree and reverse.

The amended complaint alleged that the minor child was admitted to the hospital for necessary medical services. At the time of the admission, the father agreed in writing to pay all charges not covered by insurance. The mother knew of the admission but did not object to the child receiving medical services. Eventually, the hospital filed suit seeking payment under the express contract between the father and the hospital. In a separate count of the amended complaint, the hospital sought to recover from the mother, pursuant to an implied contract, because she “never objected to the rendition of the services and benefited from these services as administered to her minor child . .” A default was entered against the father, and the mother filed a motion to dismiss the complaint as to her.

The trial court held that the hospital looked to the father for payment of the $8,799.25 when it obtained an agreement in writing and that there was no basis to hold the mother liable. According to the statement of facts stipulated to for appellate purposes, the trial court found that the written contract superseded any implied contract. The court, noting recent changes in the law concerning the duty to support a child, stated that if neither parent had signed, it would have found both parents liable. If both parents had signed, it would have found both liable, but where only one parent had executed a written contract, that contract represented the agreement to the exclusion of any implied contract.

We must determine whether the express contract executed by the father bars the hospital from pursuing a suit against the mother for services rendered to the child either on an implied in fact contract or on a contract implied in law. Although we find that the facts peculiar to this case do not support an implied in fact contract, accord, Nursing Care Services, Inc. v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980), we hold that the hospital may pursue a claim against the mother on the basis of an implied in law contract stemming from her statutory duty to support her child.

Quasi-contracts are obligations imposed by law on grounds of justice and equity. They are imposed for the purpose of preventing unjust enrichment. Unlike express contracts or contracts implied in fact, quasi-contracts do not rest upon the assent of the contracting parties. Quasi-contracts are based primarily upon a benefit flowing to the person sought to be charged. The person unjustly enriched is required to compensate the person furnishing the benefit. Tipper v. Great Lakes Chemical Company, 281 So.2d 10 (Fla.1973). Thus, the preliminary question in determining whether the law should imply a contract in this case turns upon whether the mother has been unjustly enriched, and that determination turns upon whether the mother has an obligation or legal duty that has been satisfied by the efforts of another.

Traditionally, the father had the primary duty to support his wife and children. Walborsky v. Walborsky, 197 So.2d 853 (Fla. 1st DCA 1967). The mother could be called upon to provide for the family only when the father could not fulfill this obligation. See State v. S.M.G., 313 So.2d 761 (Fla.1975); Copeland v. Copeland, 65 So.2d 853 (Fla.1953); and Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967). Recently, however, “the unity concept of marriage has in a large part given way to the partner concept whereby a woman stands as an equal to her husband in the eyes of the law.” Gates v. Foley, 247 So.2d 40, 44 (Fla.1971). This trend was embodied in a sweeping reformation of the law which now places the mother and father on an equal footing in relation to their obligations to support their minor children. Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973); § 61.001, et seq., Fla.Stat. (1971). As stated in Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978):

The duty to provide support for a minor child is based upon the child’s incapacity, both natural and legal, and its consequent need of protection and care. At common law, this duty of child support was visited almost exclusively upon the father and was limited to that period when the child remained unemancipated. Today, the obligation of child support is recognized by statute to be upon both the mother and father jointly as the natural guardians of their natural and adopted children.

See § 744.301, Fla.Stat. (1977).

Support as contemplated by the foregoing statutory authority and case law is defined as the provision of necessary food, clothing, shelter or medical treatment. See State v. Winters, 346 So.2d 991 (Fla.1977) receded from, on other grounds, in State v. Joyce, 361 So.2d 406 (Fla.1978); §§ 827.04- 05, Fla.Stat. (1977). Thus, either or both of the parents of a minor child have a duty to provide reasonable and necessary medical attention for that child.

In the case under consideration, the mother received a “legal” benefit when the hospital rendered its services to her child. Her duty to provide or procure necessary medical services for her daughter was fulfilled. She would be unjustly enriched if allowed to enjoy that benefit without compensating the hospital.

We turn next to the question of whether the written contract between the hospital and the father superseded this implied contract between the hospital and the mother. We hold that it does not. We reach this conclusion because we observe that the long standing rule that an express contract supersedes an implied contract was derived from cases in which the same parties agreed to more than one conflicting contract. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (Fla.1928); Solutec Corp. v. Young & Lawrence Associated, Inc., 243 So.2d 605 (Fla. 4th DCA 1971); and Bloom v. Frese, 123 So.2d 47 (Fla. 3d DCA 1960). Those cases are distinguishable from the case before this court, which involves different parties to different contracts. Here, where both parents are responsible for supporting the child, the hospital may recover from either the father, by virtue of his express contract, or from the mother, pursuant to an implied in law contract. To rule that the father’s contract superseded the mother’s obligation would be be to return to the “unity concept” that has given way to the partnership theory of a marriage. Gates v. Foley, supra.

Even if the mother reasonably believed the father was obligated to pay under his express contract with the hospital, she is not relieved of her obligation of support by that assumption. Nursing Care Services, Inc. v. Dobos, supra. Although we hold that the written contract with the father does not preclude the hospital from seeking recovery from the mother on the implied contract, we take no position as to the existence of any rights between the parents.

For the foregoing reasons, we find that the hospital is not foreclosed from seeking recovery against the mother under an implied in law contract predicated upon her duty to support her child. The decision of the trial court is reversed and the cause remanded for proceedings in accordance with this opinion.

      . The child received treatment for severe withdrawal, treatment which the mother has conceded to be a reasonable and necessary medical service.

      . The record does not indicate whether the mother was present at the time of the child’s admission.

      .The distinction made in Weinstein v. Weinstein, 148 So.2d 737 (Fla. 3d DCA 1963), questioned on other grounds in Warren v. Warren, 306 So.2d 197 (Fla. 1st DCA 1974), and argued by Mrs. Vigliotti is not applicable in this case. That argument, that an intervening third party will not be compensated on a quasi-contract theory unless the parent “failed or refused” to fulfill her obligation, is similar to the “emergency care” doctrine and designed to encourage and protect one giving assistance. See Nursing Care Services, Inc. v. Dobos, supra.

      . It is obvious that the written contract executed by the father did not expressly exclude recovery from the mother.

      . See Crookham v. Smith, 68 Cal.App.3d 773, 137 Cal.Rptr. 428 (1977), and Plant v. Plant, 20 Ill.App.3d 5, 312 N.E.2d 847 (1974).


author: DOWNEY, Judge.

text:
    VINYL REPAIR SERVICE, INC., a Florida Corporation, Appellant/Cross-Appellee, v. Herbert MENZEL, Appellee/Cross-Appellant.
    No. 78-1548.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied Aug. 1, 1980.
    J. Joseph Hughes of Eddy & Hughes, P. A., Pompano Beach, and Lawrence J. Marchbanks of Reynolds & Marchbanks, Boca Raton, for appellant/cross-appellee.
    Joseph Easthope of Houston, Faircloth, Cooper & Easthope, Fort Lauderdale, for appellee/cross-appellant.
   DOWNEY, Judge.

Herbert Menzel, appellee, owned and operated a business known as Vinyl Repair Service. In June of 1975 appellee entered into an agreement with appellant for sale of the business. In said agreement appellee contracted to sell Vinyl Repair Service for the sum of $25,000; $10,000 to be paid outright with the remaining $15,000 secured by a purchase money note and mortgage. During the negotiations for the purchase of the business, appellee represented to the appellant that he possessed distributorship rights to certain products and supplies used in the vinyl repair business. While the rights to the distributorship were not included in the sale of the business, the contract for sale contained a provision whereby the appellant would be given the right of first refusal in the event the distributorship rights were to be sold, mortgaged or otherwise disposed of. In July of 1976 the appellant, then operating under the name of Vinyl Repair Service, Inc., notified appellee of its intention to rescind the contract. Thereupon appellant sued appellee in two counts seeking rescission and/or damages for fraud and misrepresentation in the sale of a business.

Appellant’s complaint alleged that, in negotiating the purchase of appellee’s business, appellee represented to appellant that “he was a distributor for most if not all of the supplies used in the business being sold and had the legal rights to purchase said supplies at a discount from the manufacturer”. Appellee is also charged with representing that the distributorship “had value as a vested legal right”. The complaint further alleges that the agreement entered into between the parties provided appellant should have first refusal rights in the event appellee sold or otherwise disposed of the distributorship. As stated in the complaint, these representations relative to the distributorship were false, known by appellee to be false, and made in order to induce appellant to purchase his business. Furthermore, appellant relied upon those representations and was induced thereby to purchase the business. The appellee denied the allegations of the complaint and alleged affirmatively that he had offered to sell the distributorship to appellant, but it had refused the offer. Appellee also counterclaimed for an accounting of the amount due on the note and for sale of the property described in the chattel mortgage.

At trial the appellant’s corporate officers who negotiated with appellee for the sale of the business testified to the representations which were made by appellee. They stated, at some length, that appellee had told them he owned an exclusive distributorship for certain materials used in the vinyl repair business and would permit appellant to purchase its materials and supplies at a discount. In addition, appellee indicated that the distributorship was authorized to sell service and materials in various areas throughout the United States. Furthermore, appellee told them the distributorship earned from $1000 to $2000 per month. Finally, they agreed that, if he disposed of the distributorship, appellant would have first refusal. Appellant’s witnesses further testified and the proof otherwise showed that the so-called distributorship was more imaginary than real. It was not exclusive and could not be sold as a property right. Appellee did have an ongoing relationship with a supplier of vinyl repair products which was referred to as a distributorship, but it had little value.

The trial court found the allegations of the complaint relative to fraud and misrepresentation were proven and that appellant was entitled to rescission of the sale but for the fact that appellee could not be returned to a status quo position. Therefore, the judgment granted appellant no relief except to refuse any penalty against appellant for failure to make further payments on the note and mortgage owed to appellee. The judgment, however, upheld the validity of the note and mortgage.

Appellant contends the trial court erred in not granting any relief by way of rescission, damages or cancellation of the note and mortgage held by appellee Menzel. Appellee cross appeals, assigning as error the finding that appellant had proven fraud and misrepresentation by Menzel in the sale of the business.

We feel there is adequate evidence in the record to support the trial judge’s finding of fraud and misrepresentation. Given that finding, however, we are of the view that appellant was entitled to some affirmative relief, assuming appellant was injured by the misrepresentation. We assume the trial court found appellant had been injured because rescission would have been granted if a return to the status quo could have been accomplished. However, since rescission was not available, the appellant was entitled to a award of damages either by way of a judgment therefor against appellee or appellant was entitled to a set-off against the note and mortgage for the amount of damages sustained as a result of appellee’s tortious conduct. Winn & Lovett Grocery Co. v. Saffold Brothers Produce Co., 121 Fla. 833, 164 So. 681 (Fla.1935).

Accordingly, the judgment appealed from is reversed and remanded with directions to determine the extent of appellant’s damages, if any, and enter judgment against appellee for said amount, or in the alternative allow appellant a set-off therefor against the note and mortgage held by ap-pellee.

REVERSED AND REMANDED with directions.

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


author: PER CURIAM. MOORE, Judge,

text:
    In re the ADOPTION of David SORENSEN.
    No. 79-1126.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied Aug. 1, 1980.
    John M. Bernazzoli of DeTardo, Longo & Bernazzoli, Hollywood, for appellant David K. Sorensen.
    Daniel L. Ginsberg of Ginsberg & Goldman, North Miami Beach, for appellees Harry Sorensen and Nancy Sorensen.
   PER CURIAM.

This is an appeal from a final judgment of adoption. The father of the child objected to the child being adopted by the child’s grandfather and the grandfather’s wife. Although we believe the evidence would support a determination that it would be in the best interest of the child to be placed in the temporary custody of the grandfather, we find the record lacks the requisite clear and convincing proof that the father has abandoned the child. In Re Adoption of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977).

Accordingly, the judgment of the trial court is reversed with directions for further proceedings consistent with this opinion.

ANSTEAD and HURLEY, JJ., concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion there is ample evidence to support a finding, based on clear and convincing proof, of abandonment by the natural father. I would therefore affirm.


text:
    Rome Lee HARMON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1351.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied Aug. 6, 1980.
    Nelson E. Bailey of Bailey & Jordan, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA 1979), cert. denied 378 So.2d 344 (Fla.1979).

ANSTEAD, MOORE and HURLEY, JJ., concur.