text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: William Allen REID v. STATE of Alabama).
    79-190.
    Supreme Court of Alabama.
    June 6, 1980.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston III, Asst. Atty. Gen., for petitioner.
    F. Wayne Keith and S. Palmer Keith, Jr. of Keith, Keith & Keith, P.A., Birmingham, for respondent.
   MADDOX, Justice.

This Court granted the State’s petition for a writ of certiorari to review the decision of the Court of Criminal Appeals, 388 So.2d 202, which had reversed respondent Reid’s robbery conviction on the ground that the warrantless search of Reid’s vehicle was illegal and not within a recognized exception to the warrant requirement of the Fourth Amendment to the United States Constitution. We reverse and remand.

The facts are presented in detail in the opinion of the Court of Criminal Appeals. Reid v. State, 388 So.2d 202 (Ala.Cr.App. 1979). The sole and determinative issue is whether the warrantless search was justified because of the existence of an exigent circumstance, coupled with probable cause. We hold that it was.

The Court of Criminal Appeals held:

“From the facts and circumstances in the instant case, it is clear that the police officers were not faced with a ‘now or never situation.’ The contraband was safely contained in the tool box of the appellant’s truck which was under constant surveillance. The appellant was apprehended only as he was leaving the apartment complex with another individual in a pink Thunderbird. He was nowhere near his truck at that time. The appellant was escorted back to the apartment surrounded by approximately ten deputy sheriffs. He was ‘in custody.’ In short, at the time of the search, there was no danger in the pickup truck leaving the area or of the evidence contained in the tool box being destroyed. A search warrant clearly could have been and should have been obtained before the search was conducted.”

It is apparent that the Court of Criminal Appeals was of the opinion that police officers could have prevented movement of the pickup truck and tool box until a warrant could be obtained. The Supreme Court of the United States addressed the identical issue in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The United States Supreme Court held that “. . . the opportunity to search [a car] is fleeting since a car is readily movable.” That court went on to state: “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” (Emphasis added.) The Court concluded, “. . . there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” (Emphasis added.)

The Court of Criminal Appeals seems to admit that the police had probable cause to believe that the fruits or instrumentalities of a crime were in the tool box of the vehicle, and that a warrant would have issued had those same facts been presented to a magistrate. It is apparent from a reading of the facts contained in the opinion of the Court of Criminal Appeals that the officer had probable cause to believe that the owner of the vehicle was the perpetrator of the crime and that the fruits or instrumentalities of a crime were in the tool box. The Court of Criminal Appeals seems to think that an “exigent circumstance” does not exist if the vehicle can be immobilized until a warrant can be obtained. In Chambers v. Maroney, supra, the Supreme Court of the United States says there is little difference between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. We hold that even though the vehicle could have been immobilized until a warrant could have been obtained, it, nevertheless, was still a “movable” within the parameters of the exception to the requirement that a warrant must be obtained.

One exigent circumstance to justify the search is sufficient to reverse the judgment of the Court of Criminal Appeals. We need not list another, but we know that a second exigent circumstance under the rule espoused in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), exists in this case. In Cady, the Court held that the warrantless search of a vehicle is justified when the police have probable cause to believe an instrumentality which may endanger the public is located within the vehicle. In the instant case, the officer knew that the offense was committed with a firearm. He saw Reid place a box in the tool box on his vehicle. The officer had probable cause to believe the firearm was in the box and it was accessible to the public, thereby creating a possible danger to the public.

In reaching the conclusion that the search was reasonable, we have examined the decision of the Supreme Court of the United States in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Chadwick, federal agents had lawfully seized a locked footlocker from the open trunk of a parked automobile during the arrest of those who were in possession of the footlocker. The court held that the warrantless search of the footlocker was unreasonable.

The Court, in reaching its decision, did not change the rule regarding the automobile exception to the warrant requirement, as that rule is expressed in Chambers v. Maroney, supra, and Cady v. Dombrowski, supra. In fact, the Supreme Court, in Chadwick, specifically addressed the automobile exception to the warrant requirement, as follows:

“The Government does not contend that the footlocker’s brief contact with Chadwick’s car makes this an automobile search, but it is argued that the rationale of our automobile search cases demonstrates the reasonableness of permitting warrantless searches of luggage; the Government views such luggage as analogous to motor vehicles for Fourth Amendment purposes. It is true that, like the footlocker in issue here, automobiles are ‘effects’ under the Fourth Amendment, and searches and seizures of automobiles are therefore subject to the constitutional standard of reasonableness. But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, [39 ALR 790] (1925); Preston v. United States, supra, [376 U.S. 364], at 366-67, 84 S.Ct. [881], at 882-883, 11 L.Ed.2d 777; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). See also South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (1976).
“Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained ‘warrantless searches of vehicles ... in cases in which the possibilities of the vehicle’s being removed or evidence in it destroyed were remote, if not nonexistent.’ Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); accord, South Dakota v. Opperman, supra, 428 U.S. at 367, 96 S.Ct. [3092], at 3096, 49 L.Ed.2d 1000; see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, supra; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).”

It is apparent that the tool box in the instant case was affixed to the body of the pickup truck. We, therefore, apply the automobile exception as expressed in Chambers v. Maroney, supra, and Cady v. Dombrowski, supra, in determining the reasonableness of the search.

We find that the Court of Criminal Appeals erred in holding that the search was not within the previously discussed exception to the warrant requirement.

The cause is due to be reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

ALMON and BEATTY, JJ., concur in the result.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Allen REID v. STATE.
    6 Div. 818.
    Alabama Court of Criminal Appeals.
    June 30, 1980.
   PER CURIAM.

Affirmed on authority of Ex parte State (Re: Reid v. State) 388 So.2d 208 (Ala. 1980).

All the Judges concur.


author: TYSON, Judge.

text:
    Gerald W. AIRHART v. STATE.
    6 Div. 96.
    Court of Criminal Appeals of Alabama.
    Dec. 4, 1979.
    Rehearing Denied Jan. 22, 1980.
    Fred Blanton, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Virginia A. Johnston, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The appellant was indicted and convicted for embezzlement and the trial court fixed his punishment at two years in the state penitentiary. This appeal concerns a variance between the allegation in the indictment and the proof. Based on long standing Alabama law which has been applied to identical facts we hold that appellant’s cause must be reversed and remanded.

The state’s evidence proved beyond all reasonable doubt that the appellant embezzled a check from his employer. The appellant was an accountant for Johnson and Johnson Sandblasting and Metalizing Company. He was in charge of keeping the books and writing checks to pay bills for the company. On November 22, 1976, the appellant wrote a check for $4,436.52 on a company account. He presented the check to Mr. Winford Johnson, a co-owner of the company, to sign, telling Mr. Johnson that the check was to pay for withholding taxes for employees of the company. The appellant was not authorized to use the check for any purpose other than to make the federal tax deposit.

On November 23 the appellant took that check to the Fairfield branch of Birmingham Trust National Bank and purchased a cashier’s check in the amount of $4,436.52. No money changed hands. The cashier’s check was made payable to Trussville Motors, Incorporated, where appellant used the check to purchase a 1976 Chevrolet Chevelle automobile.

I

Omitting its formal parts, appellant’s indictment reads as follows:

“The grand jury of said County charge that, before the finding of this indictment, Gerald W. Airhart, whose name is to the grand jury otherwise unknown, being at the time the agent, clerk, employee, servant or apprentice of Winford Johnson and George Johnson, did embezzle or fraudulently convert to his own use, or the use of another, or did fraudulently secret with the intent to convert to his own use, or the use of another, Four Thousand Four Hundred Thirty Six Dollars and Fifty Two Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, which came into his possession as such agent, clerk, employee, servant or apprentice, the personal property of Winford Johnson and George Johnson, against the peace and dignity of the State of Alabama.” (Emphasis added.)

The issue thus presented is whether proof that a check was embezzled is sufficient to satisfy the allegation of an indictment charging the embezzlement of “lawful currency.” Both Supreme Court and Court of Appeals precedent answer this question in the negative.

In Carr v. State, 104 Ala. 43, 16 So. 155 (1894), the Supreme Court of Alabama held the following:

“If the jury believed this evidence, they could not have found the defendant guilty. Under it, all he ever received from Mrs. Rice was the check for $5,000, and not money or bank notes,’as alleged in the first and second counts of the indictment, to the amount of $1,600.90; and under it there was no special deposit by Mrs. Rice of $1,600.90, or any other sum, with the defendant, or with the Tuscumbia Banking Company. It may be that, conceding the truth of this evidence, the defendant would still be guilty of embezzling the check, but that charge is not made in this case .
“Each count of the complaint charges the defendant with having received, in one form or another, money from Mrs. Rice. On one aspect of the evidence, he received only a check from her, directly or indirectly. Obviously, a check is not money; and obviously, also, unless he did receive money of hers, the jury should have acquitted him.” (Emphasis added.)

This holding was followed by Judge Brick-en, speaking for the Court of Appeals in Pruitt v. State, 21 Ala.App. 113, 105 So. 429 (1925); Brown v. State, 25 Ala.App. 117, 141 So. 725 (1932), and later still in Bauer v. State, 25 Ala.App. 355, 146 So. 539 (1933). In Bauer, supra, Judge Bricken wrote:

“The indictment charged the defendant with the embezzlement of money, not checks, and the inquiry in this connection should have been confined to the question as to whether or not the alleged money came into possession of the defendant as the vice president of the company named; and further, Did he embezzle or fraudulently convert to his own use such money? Certainly if an accused should embezzle a horse, or other property, and afterwards convert the property into money, a prosecution could not be sustained for the embezzlement of money. In this case, the court charged the jury that as a matter of law an indictment charging the embezzlement of money is not sustained by proof of embezzlement of checks only. This is a correct statement of the law, and has been many times so decided.” (Emphasis added.)

The holdings in these cases have at no time been overruled. We believe that the reasoning in the above cases is sound and should be followed in the instant case.

Embezzlement is a statutory criminal offense. Knight v. State, 152 Ala. 56, 44 So. 585 (1907); Napier v. State, 337 So.2d 62 (Ala.Cr.App., 1976); Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972). The prosecution in the instant case was pursuant to the provisions of Alabama Code, § 13-3-20 (1975). Strict construction under this section must be enforced and applied. Spurlock v. State, 37 Ala.App. 390, 69 So.2d 293 (1953).

See Mr. Justice McCall’s thorough discussion of the state’s burden of proof in an embezzlement prosecution. 286 Ala. 722, 246 So.2d 483 (1971). Clearly, it must be established what property was embezzled. Without such proof no conviction could be sustained. Mauldin v. State, 28 Ala.App. 30, 177 So. 309 (1937). Thus, in light of Carr, supra and the Bricken trilogy, “a check is not money.”

We recognize the line of false pretense cases which have held that a deposit slip is money in order to avoid a fatal variance between the proof and allegation. Simmons v. State, 242 Ala. 105, 4 So.2d 905 (1941); Pirkle v. State, 24 Ala.App. 19, 129 So. 707 (1930). We note that in Simmons, supra, the Supreme Court was unwilling to overrule the holding in O’Brien v. State, 29 Ala.App. 39, 191 So. 389, rev’d, 238 Ala. 189, 191 So. 391 (1939), a case in which the defendant had actually obtained a cheek by false pretenses instead of money as charged in the indictment. It was pointed out by the Supreme Court that the variance in Simmons involved deposit slips while the variance in O’Brien had involved checks. Looking to O’Brien, supra, in which the Supreme Court reversed the Court of Appeals decision and the defendant’s conviction, reliance was placed on Carr, Bauer, Brown, and Pruitt.

As late as 1960 the Supreme Court, in response to a question certified by the Court of Appeals, held the following:

“While it might be argued, with some merit, that there is, in practical effect, no difference between a deposit slip and a check as being the instrumentality through which a party might receive money on deposit in a bank, we are not inclined to say that O’Brien v. State, supra, and the cases there relied on, should be overruled.” Christison v. State, 273 Ala. 1, 142 So.2d 663, 666 (1960).

It was thought in Christison v. State, 39 Ala.App. 175, 96 So.2d 701 (1957) (a case charging the embezzlement of money where only the embezzlement of a check was proved) that the Simmons rationale should apply; however, that case was reversed because of a separation of the jury and we are in no way bound by the dicta of that decision.

We hold that the Simmons rationale is inapplicable to a case charging the embezzlement of money where embezzlement of a check is proved. Such a variance in allegation and proof is fatal and could have easily been avoided by a simple use of the disjunctive “money or checks” in the indictment. Evans v. State, 343 So.2d 557 (Ala.Cr.App. 1977). In so ruling we make no new announcement concerning variance in proof and allegation, nor do we impose a standard of technicalities void of logic and necessity. Our decision today simply reaffirms long standing principles enunciated by well reasoned authority. Because of the deficiency herein pointed out we have no alternative but to reverse and remand this cause.

REVERSED AND REMANDED.

All the Judges concur.

      . See Mitchell v. State, 56 Ala.App. 718, 325 So.2d 509 (1975), cert. denied, 295 Ala. 412, 325 So.2d 513 (1976) and cases cited therein for discussion of elements for false pretenses.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General (re Gerald W. AIRHART v. STATE of Alabama).
    79-344.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for petitioner.
    Fred Blanton, Birmingham, for respondent.
   EMBRY, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and FAULKNER, AL-MON and SHORES, JJ., concur.


text:
    Lorenzo E. GREEN v. STATE.
    3 Div. 68.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    George W. Cameron, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County returned an indictment charging that the appellant, Lorenzo E. Green, assaulted Freddie White, with the intent unlawfully, maliciously, and intentionally to put out or destroy his eye. Appellant duly entered a plea of not guilty. Appellant was duly found guilty by a jury of the offense of an' assault and battery. The trial court sentenced the appellant to be imprisoned in the Montgomery County Jail for 12 months, and the appellant appeals to this Court.

The appellant was at all proceedings in the trial court represented by counsel of his own choice and is so represented by the same counsel in this Court. This appeal was submitted to this Court on briefs.

The appellant contends that the trial court erred to his prejudice on two grounds: First, that the offense of an assault and battery is not included in an indictment for assault with intent to maim; second, that the punishment imposed on appellant exceeds that permitted by law.

The indictment in this case is in the form provided by Code Of Alabama, 1975, Sec. 15-8-150(13) for an assault with intent to maim. An assault with intent to maim is a felony punishable by imprisonment in the penitentiary for not less than two nor more than twenty years. Code Of Alabama, 1975, Sec. 13-1—46.

Code Of Alabama, 1975, Sec. 15-17-1. Verdict may be for lesser offense than charged; verdict for offenses included in offense charged.

“When an indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged and guilty of any degree inferior thereto or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony or a misdemeanor.” The jury returned a verdict against the appellant for an assault and battery.

The facts tended to prove that the appellant and Freddie White were incarcerated at Kilby Prison in Montgomery County, and that the appellant picked up a knife and stabbed White in or about the eye, and hit him up side the head, and other inmates took the knife from the appellant. There was before the jury sufficient evidence to sustain the jury verdict- finding the appellant guilty of assault and battery. We note that appellant’s refused charge no. 2 states that an assault and battery is included in the charge against the appellant, and that the trial court in its oral charge to the jury stated, that included in the offenses charged is what is called assault and battery, and defined an assault and battery to the jury.

We hold that an assault and battery for which the appellant was found guilty is a lesser included offense of assault with intent to maim. Code Of Alabama, 1975, Sec. 15-8-150(13); Lynn v. State, 31 Ala.App. 216, 14 So.2d 259; Payne v. State, 148 Ala. 609, 42 So. 988; McArdle v. State, Ala.Cr. App., 372 So.2d 897, certiorari denied, Ala., 372 So.2d 902; Russell v. State, 27 Ala.App. 10, 165 So. 256; Russell v. State, 231 Ala. 297, 165 So. 255.

We now consider the punishment imposed on appellant by the sentence of the court. Code Of Alabama, 1975, Sec. 13-1-40 provides that any person who commits an assault, or an assault and battery, on another, shall, on conviction, be fined not more than $500.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county, for not more than six months. The sentence imposed on the appellant is for 12 months, and exceeds that authorized by law. This does not constitute reversible error under the law in this case, but requires that this cause be remanded for proper sentencing of appellant. Easley v. State, Ala.Cr.App., 369 So.2d 69; Swicegood v. State, 42 Ala.App. 492, 168 So.2d 624; certiorari denied, 277 Ala. 702, 168 So.2d 626, certiorari denied, 380 U.S. 920, 85 S.Ct. 916, 13 L.Ed.2d 804.

We have carefully searched the record and are of the opinion that reversible error does not appear. Appellant’s conviction is hereby affirmed, the twelve months sentence is set aside, and this cause is hereby remanded to the Circuit Court of Montgomery County for a proper sentence to be imposed on appellant by the trial judge.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

Affirmed; remanded for proper sentencing.

All the Judges concur.


author: ALDERMAN, Justice.

text:
    ESTATE of Wendell L. ROBERTS, Deceased, Willa Mae ROBERTS, Appellant, v. Michael W. ROBERTS, etc., Appellee.
    No. 57696.
    Supreme Court of Florida.
    June 5, 1980.
    Rehearing Denied Oct. 15, 1980.
    Thomas M. Brady of Wells, Brown & Brady, Pensacola, for appellant.
    Harry Lewis Michaels, Tallahassee, for appellee.
   ALDERMAN, Justice.

Willa Mae Roberts appeals from a circuit court summary final judgment upholding the constitutionality of section 732.702(2), Florida Statutes (1979), and the validity of an antenuptial agreement. She claims that section 732.702(2) is unconstitutional because it denies access to the courts, due process, and equal protection of the law, in violation of the Florida and federal constitutions. She also contends that there are disputed issues of material fact which preclude the entry of summary judgment. We find no merit in this appeal and affirm the trial judge.

On November 30, 1978, Wendell L. Roberts executed a will devising his estate to his three adult children and nominating his son Michael as personal representative. He bequeathed nothing to Willa Mae, his wife of seven months. Mr. Roberts died December 22, 1978.

The will was admitted to probate, and Michael was appointed personal representative. Mrs. Roberts petitioned the court to set aside homestead and to award a family allowance and elected to take a widow’s share. The personal representative objected to these petitions, claiming that Mrs. Roberts had waived all of her rights as a widow in an antenuptial agreement. Mrs. Roberts attacked the agreement’s validity, alleging that Mr. Roberts did not make a fair disclosure of his wealth and claiming that section 732.702(2), the statute permitting an antenuptial agreement to be valid without full disclosure, is unconstitutional.

Relying upon Kluger v. White, 281 So.2d 1 (Fla.1973), Mrs. Roberts argues that section 732.702(2) denies her access to the courts because it abolishes a common law right of action that had existed prior to the adoption of article I, section 21 of the 1968 Florida Constitution. In Kluger, we held that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Florida Constitution, or where such right has become a part of the common law of the state pursuant to section 2.01, Florida Statutes, the legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the state to redress for injuries, unless the legislature can show an overpowering public necessity for abolishing such right, and no alternative method of meeting such public necessity can be shown.

Mrs. Roberts relies upon Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), to establish the common law right of action which she claims has been abolished. In Del Vecchio, we held that for an antenup-tial agreement to be valid, it must either make a fair and reasonable provision for the wife, or, alternatively, the wife must receive a full, fair, and open disclosure of the husband’s wealth before she signs the agreement. The rule announced in Del Vecchio was legislatively changed by that part of section 732.702(2) which provides: “No disclosure shall be required for an agreement, contract or waiver executed before marriage.”

Mrs. Roberts’ argument that she has been denied access to the courts is based upon a false premise. The legislature has not abolished the wife’s right to sue; it has only altered one of the elements that the court may consider in determining the validity of the antenuptial agreement. Compare Abdin v. Fischer, 374 So.2d 1379 (Fla.1979). The right to have an antenuptial agreement set aside still exists. For example, if a wife were able to show that her signature on such an agreement had been coerced or otherwise improperly obtained or that she was incompetent at the time she signed, section 732.702(2) would not bar her challenge to the validity of the agreement. We hold that section 732.702(2) does not deny access to the courts in violation of article I, section 21 of the Florida Constitution.

We also reject Mrs. Roberts’ argument that the statute violates due process and equal protection provisions of our state and federal constitutions. We find a rational relationship between the classification in section 732.702(2) and the permissible statutory objective of regulating descent of property. The pertinent portion of the statute applies equally to all unmarried people, and it is not discriminatory, arbitrary, or oppressive. The tests to withstand due process and equal protection challenges have been met.

We also conclude that there are no disputed issues of material fact which preclude the entry of summary judgment.

Accordingly, we hold that section 732.-702(2) is constitutional and affirm the lower court.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and MCDONALD, JJ., concur.

      . Section 732.702(2) provides:
      Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.

      . Section 732.702(1) provides in pertinent part:
      Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a . . . prospective spouse . . . is a waiver of all rights to elective share . . homestead property . and family allowance. .
      The Roberts’ antenuptial agreement reads in part: “It is the intention that each party relinquish and waive all right, title, interest or claim in or to the property of the other. .


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. John F. MERKLEIN and James B. Nelson, Appellees.
    No. 79-1692.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1980.
    Rehearing Denied Sept. 12, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Fred S. Pflaum of Ginsburg, Byrd & Jones, Sarasota, for appellee Nelson.
    Robert A. Farrance and Edwin T. Mulock of Mulock & Farrance, Bradenton, for ap-pellee Merklein.
   SCHEB, Chief Judge.

The state appeals the trial court’s order suppressing appellees’ confessions and tangible evidence seized from their vehicle. The court held that the officers’ initial investigatory stop of appellees was proper, but that their continued detention, which resulted in probable cause for their arrest, was unreasonable. We reverse.

The state charged John F. Merklein and James B. Nelson with two counts of attempted robbery and one count of carrying a concealed weapon. Each pled not guilty and moved to suppress both their confessions and tangible evidence seized from their vehicle.

At the suppression hearing several law officers testified. From their testimony it appears that two white males, one armed with a handgun, attempted to rob Roy Campbell on Siesta Key in Sarasota County, and fled in an automobile. After interviewing the victim and several witnesses, Sarasota County Sheriff’s Deputy Poole had the Sheriff’s Department issue a radio bulletin for a late model blue Cainaro or Fire-bird occupied by two white males armed with a handgun. The Department promptly dispatched other deputies to the two bridges connecting the Key to the mainland. Subsequently, the Department informed Deputy Poole that deputies had stopped at least three vehicles fitting the description on the Key. Poole transported the victim and witnesses to the locations of these stops for purposes of identification.

Approximately ten minutes after the bulletin was aired, a deputy stopped Merklein and Nelson, both white males, in a blue Firebird matching the description of the suspect vehicle on Siesta Key three or four miles from the site of the attempted robbery. Immediately after the stop another deputy arrived. The officers asked about the attempted robbery and a rifle they observed on the back seat of the car. Merk-lein and Nelson each denied knowledge of the attempted robbery and explained that they had been target shooting with the rifle. After Merklein and Nelson had produced identification at the deputies’ request, the deputies ran a computer check on them which proved negative.

The officers then asked if there were other weapons in the car, and Merklein and Nelson answered no, but appeared to be in disagreement. The officers separated Merklein and Nelson and again asked them if there were any additional weapons in their vehicle. Merklein told Deputy Bishop that there was a handgun and knife in the car. On direct examination Deputy Bishop testified that she gave Merklein Miranda warnings before asking him about weapons the second time. On cross examination, however, she stated that she did not give the required warnings until after she had questioned him the second time. On redirect examination she emphatically stated that she gave Merklein Miranda warnings before questioning him the second time about additional weapons.

The officers detained Merklein and Nelson until Deputy Poole arrived with the victim and other witnesses some twenty to forty minutes after the stop. When they arrived, neither the victim nor the witnesses could positively identify Merklein or Nelson or their vehicle, however. At that point the officers arrested Merklein and Nelson for carrying a concealed weapon and transported them to the Sheriff’s Department. There each confessed to the attempted robbery of Campbell as well as an earlier attempted robbery.

The trial court granted Merklein’s and Nelson’s motions on the ground that while the officers had the necessary founded suspicion to stop their vehicle, “as a matter of law, they . . . improperly detained [Merklein and Nelson] beyond [the time required to run the computer check].” The trial court correctly held that the officers had the authority to stop the suspect vehicle. Since the police had a description of the crime, the perpetrators and their vehicle, they were proper in making an investigatory stop under the Stop and Frisk law, Section 901.151, Florida Statutes (1977). We think, however, that the court erred in its ruling that the length of the detention was unwarranted.

Given the right to stop the vehicle and Merklein’s and Nelson’s apparent disagreement about the presence of weapons in their car, the officers properly detained them. It is permissible to detain suspects for a reasonable time to investigate the circumstances warranting an investigatory stop as well as any suspicious circumstances produced by the stop. See State v. Lopez, 369 So.2d 623 (Fla.2d DCA 1979); State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978). The reasonableness of an investigatory detention depends on the circumstances surrounding the detention, and not solely on its length. See Lopez, 369 So.2d at 625. In State v. Stevens the Fourth District held that a detention of thirty minutes or less was reasonable where necessary to investigate suspicious circumstances and determine if probable cause existed. 354 So.2d at 1248.

Here Merklein and Nelson and their automobile fit the description of the assailants ,and their automobile, and the police were transporting the victim and witnesses to the scene of the stop for the purpose of identification. If the deputies had allowed Merklein and Nelson to leave, they would have frustrated any attempted identification and thwarted the investigatory process. Finally, Merklein and Nelson appeared to be in disagreement when they initially responded to the deputies’ question about additional weapons in the vehicle. Under these circumstances it was reasonable for the officers to detain Merklein and Nelson for a reasonable time pending arrival of Deputy Poole with the victim and witnesses.

Merklein and Nelson also urge before this court, as they did in the trial court, that Deputy Bishop did not administer the required Miranda warnings until after she had questioned Merklein the second time regarding weapons in the car. It was this admission, they say, that gave the officers probable cause to arrest them. It is not clear to us from the trial court’s comments, however, whether it reached this issue. Further, neither Merklein and Nelson nor the state have indicated that the court reached this issue. Hence, we do not reach it on this appeal. If, on remand, the court should determine that the officers did not properly administer Miranda warnings, then it must suppress the tangible evidence seized from the automobile.

Finally, Merklein and Nelson contend that the trial court erred in ruling that their confessions were not coerced; we reject this contention. Consequently, if the court determines on remand that the officers properly administered Miranda warnings, the confessions are admissible at trial.

We reverse the trial court’s order suppressing appellees’ confessions and the tangible evidence seized by the officers. We remand for further proceedings consistent with this opinion.

RYDER and CAMPBELL, JJ., concur.


text:
    ESTATE of Daisey B. THOMAS et al., Appellants, v. Horace SELLARS et al., Appellees.
    No. OO-406.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.
    Rehearing Denied Oct. 13, 1980.
    Edwin Green, II, Tallahassee, for appellants.
    Carl Pennington, Tallahassee, for appel-lees.
   PER CURIAM.

This is an appeal from a summary judgment entered against the Plaintiffs in the trial court who filed a two-count complaint alleging ejectment and fraud. The trial judge entered a summary judgment based on the complaint, affirmative defenses, and affidavits.

In order for summary judgment to be appropriate, there must be a complete absence of any disputed material fact. This Court finds that there were and are material facts in dispute and reverses and remands for a trial on the merits. Williams v. Lake City, 62 So.2d 732 (Fla.1953); Tompkins v. Rosenberg, 194 So.2d 688 (Fla. 1st DCA 1968); Grizzard v. Colonial Stores, Inc., 330 So.2d 768 (Fla. 1st DCA 1976).

McCORD and SHAW, JJ., and LILES, WOODIE A., Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    Tina D. PHILLIPS and Kenneth E. Phillips, Appellants, v. Charles STYERS, d/b/a Star Motor Court and Trailer Rentals, Appellee.
    No. 79-1715.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Rehearing Denied July 18, 1980.
    Lee S. Damsker of Gordon & Maney, P. A., Tampa, for appellants.
    Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   PER CURIAM.

Affirmed.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Counsel for appellants in their motion for rehearing contend that we overlooked the recent decision of this court in Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA May 28, 1980).

The Zambito opinion is not applicable to the instant case because the record on appeal discloses that appellant Tina D. Phillips’ negligence was the sole legal cause of the accident.

Our supreme court stated in Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973):

A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage .

Motion for rehearing is denied.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Ronald Stephen REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. 79-987.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Rehearing Denied Aug. 13, 1980.
    Robert E. Jagger, Public Defender and Thomas O. Michaels, Asst. Public Defender, Clearwater, for appellant.
    James T. Russell, State’s Atty. and C. Marie King, Asst. State’s Atty., Largo, for appellee.
   PER CURIAM.

Appellant was arrested in Florida for extradition to Illinois. He contends that his petition for writ of habeas corpus should have been granted and that he is entitled to be discharged from incarceration because the rendition warrant issued by the governor of Florida was neither before the trial court nor introduced into evidence at the habeas corpus proceeding. We agree.

DiPiero v. State, 300 So.2d 700 (Fla. 3d DCA 1974) involved the same issue raised here by appellant. That case held that the governor’s warrant must be introduced in a habeas corpus proceeding contesting extradition in order to test the competency of the evidence supporting the warrant. See also Simpson v. Woodham, 332 So.2d 693 (Fla. 1st DCA 1976).

In the instant case, not only was the governor’s warrant not introduced into evidence, it was not even before the trial court. Since the warrant itself serves as the one crucial item of evidence of the facts stated therein and is the sole basis for the introduction of other evidence, DiPiero v. State, supra, the state clearly failed to meet its burden of proof. We have no alternative under these particular facts but to reverse the denial of appellant’s habeas corpus petition.

Accordingly, the trial court’s denial of the petition for writ of habeas corpus is reversed with directions that appellant be discharged.

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.


author: SHARP, Judge.

text:
    James B. RIDENOUR and M. Jane Ridenour, his wife, Appellants, v. Albert Stanley SHAREK and Government Employees Insurance Company, etc., Appellees.
    No. 78-1646/T4-168.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Rehearing Denied Sept. 11 and Sept. 12, 1980.
    Bruce W. Jacobus of Ferrell & Jacobus, Melbourne, for appellants.

      W. Marvin Hardy, III, of Gurney, Gurney & Handley, P. A., Orlando, for appellees.
   SHARP, Judge.

The appellants claim the trial court should have directed a verdict for the plaintiffs on the question of whether Ridenour’s medical and hospital expenses exceed the $1,000.00 threshold limit imposed by the applicable section of Florida’s No-Fault Insurance Statute. We agree with appellant that the record conclusively establishes their right to recover medical and hospital costs. The trial court directed a verdict for appellants on the issue of liability and allowed the question of damages to go to the jury on a special verdict form.

James B. Ridenour filed a law suit against the appellees, Albert Stanley Sha-rek and his insurer, Government Employees Insurance Company, following an automobile accident in which Sharek rear-ended Ridenour’s vehicle. The testimony established that shortly after the accident Riden-our developed a tremor in his arms, which gradually became worse. He consulted his family doctor, Dr. Storey, and a specialist in neurology, Dr. Scott. Dr. Scott admitted Ridenour to a hospital in May 1974, and ran a battery of tests to determine conclusively the cause of the tremor. The total amount of medical bills incurred by Ridenour through that point was $1,858.50. The ap-pellees did not dispute the amount nor the reasonableness of the bills.

Ultimately, Dr. Scott diagnosed Ridenour as having Parkinson’s disease. There was conflicting medical testimony as to whether or not Parkinson’s disease could be caused by a trauma such as Ridenour suffered in the rear-end collision. The jury found for the appellees on that issue, and we cannot disturb their findings. Keith v. Amrep Corporation, 312 So.2d 234 (Fla. 1st DCA 1975).

However, both medical witnesses testified that it was reasonably necessary and proper in order to determine that the tremor was not related to the accident, to refer Riden-our to the specialist, and have him hospitalized for a battery of diagnostic tests. The attorney for Ridenour asked Dr. Scott:

Would you go to the time that you put him in the hospital? At that time, was it reasonably necessary to hospitalize Mr. Ridenour, to examine him and run tests on him to rule out the possibility of any traumatic injury he might have received as a result of this accident?

Dr. Scott answered:

I felt there were other possibilities, certainly not uppermost in my mind — problems which could possibly be related to the history of the accident.

The attorney asked:

Did you hospitalize him to make a determination as to these other factors by tests?

Dr. Scott replied:

Hospitalized him really to determine the basis of the symptoms. This testimony was not countered nor disputed by any other evidence.

This case is remarkably similar to Banyas v. American Mut. Fire Ins. Co., 359 So.2d 506 (Fla. 1st DCA 1978). In Banyas, a plaintiff sued for damages following an automobile accident and appealed a judgment for the defendant. In the accident the plaintiff sustained a blow to his chest. He was hospitalized twice after complaining of chest pains, and ultimately was referred to a cardiologist who performed diagnostic tests. The specialist concluded that the plaintiff had a heart problem not related to the accident. However the treating physician who referred the plaintiff to the specialist testified:

I felt that it was necessary to distinguish between the pain, whether or not it was from the automobile accident or whether it was due to his heart condition. . Primarily that with knowing he had a heart problem and knowing that he had been involved in an automobile accident, I felt that it was necessary to distinguish heart disease from trauma. ... I felt I had to know whether I was treating trauma or whether or not I was dealing with cardiac problems.

359 So.2d at 507.

Here, as in Banyas, the medical testimony conclusively established that the medical and hospital expenses incurred were reasonably necessary to determine whether or not the accident caused the difficulty, and to allow the commencement of proper medical treatment. We reverse the judgment below and remand for a new trial on the issue of damages in light of Banyas.

REVERSED.

CROSS and ORFINGER, JJ., concur.

      . Section 627.737(2), Fla.Stat. (1971): In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by §§ 627.730-627.741, or against any person or organization legally responsible for his acts or omissions, a plaintiff ■ may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the benefits which are payable for such injury under § 627.736(l)(a) [or which would be payable for such injury under § 627.-736(1 )(a)] or which would be payable but for any exclusion or deductible authorized by §§ 627.730-627.741 exceed one thousand dollars or the injury or disease consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function, or death.

      . The special verdict and the jury’s response were as follows: Has the plaintiff, James B. Ridenour, incurred reasonable and necessary medical expenses in excess of $1,000.00 as a result of the collision of October 17, 1973? Answer: No. Has the plaintiff, James B. Ri-denour, sustained a permanent injury within reasonable medical probability or permanent loss of a bodily function, as a result of the collision of October 17, 1973? Answer: No.

      . § 59.35, Fla.Stat. (1979).


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

text:
    Joseph R. THIBEAULT and Kathleen S. Thibeault, his wife, Appellants/Cross-Appellees, v. Joseph J. SEIFERT and Marian J. Seifert, his wife, Appellees/Cross-Appellants.
    No. 79-747.
    District Court of Appeal of Florida, Second District.
    July 25, 1980.
    Rehearing Denied Sept. 25, 1980.

      Britt Whitaker, Tampa, for appellants/cross-appellees.
    Nelson Gilreath, Jr., Tampa, for appel-lees/cross-appellants.
   OTT, Judge.

This action arose in part out of a previous lawsuit between these parties, wherein appellants were granted an easement of necessity over a strip of appellees’ land, the two being next-door neighbors. Appellees brought the present action for damages resulting from the misuse and abuse of the right-of-way privilege, and for an order terminating the easement. The judgment of the trial court ordered appellants to pay $2,500.00 in damages to appellees, but refused to terminate the easement. Both parties have appealed. We vacate the award of damages and affirm the balance of the judgment.

The record reveals that soon after the earlier litigation was concluded appellants were called to Canada to care for Mr. Thi-beault’s terminally ill parents. In their absence, they permitted their adult son and his wife to reside in their home. The conduct of the younger Thibeaults was over-exuberant at best and simply outrageous at worst, and was particularly abusive toward appellees.

When news of such conduct eventually and indirectly reached the elder Thibeaults in Canada, Mr. Thibeault immediately came home and “cleaned house”, laying down stringent ground rules for the young people. In addition, Mr. Thibeault empowered another neighbor, Mr. Little, to evict the young people if there was any problem behavior or any complaints. As soon as Mr. Thibeault had returned to his tragic vigil in Canada, the appellees asserted that the offensive activities of the son, his wife and guests resumed at an even more frenzied pace. Appellees admit they never reported these activities either to the appellants or Mr. Little prior to the institution of this action. Mr. Little testified that after Mr. Thibeault straightened the young people out he thereafter never saw or heard of any problem behavior or activities.

Upon the commencement of this action, appellants immediately came home and evicted the younger Thibeaults, who had not been joined as parties to the litigation.

We are of the opinion that when appel-lees elected not to pursue their grievances against the actual tortfeasors, they assumed the burden of establishing that appellants were somehow vicariously responsible for the torts of their son. In no event could that burden be discharged by merely showing the parent-child relationship, and particularly not where, as here, the son was an adult. Thorne v. Ramirez, 346 So.2d 121 (Fla.3d DCA 1977); Bullock v. Armstrong, 180 So.2d 479 (Fla.2d DCA 1965). Yet the record reveals no other basis for holding appellants liable for the misconduct of their son and his wife. Of a certainty, the naked fact that appellants own the premises in question would not render them liable, even if the activities thereon were deemed a nuisance. See, generally, 23 Fla.Jur. 508 et seq. §§ 21-23.

Accordingly, the portion of the final judgment awarding appellees a money judgment and costs against appellants is vacated and set aside. In all other respects the judgment is affirmed.

DANAHY, J., concurs.

GRIMES, Acting C. J., dissents with opinion.

GRIMES, Acting Chief Judge,

dissenting.

This was not the ordinary dispute between neighbors. On January 23, 1975, the court concluded the first round of this acrimonious litigation by entering a final judgment granting the Thibeaults a way of necessity over the Seiferts’ land, but at the same time enjoining the Thibeaults, “their heirs, assigns, guests or invitees,” from trespassing on the balance of the Seiferts’ land, including the Seiferts’ portion of a common boathouse. The record reflects that when the Thibeaults left for Canada shortly thereafter, their son and daughter-in-law moved into the house and embarked on a course of conduct which Judge Ott has charitably referred to as outrageous. The occupants of the Thibeault property carried on various forms of activity which clearly constituted a nuisance, and they made continued trespasses upon the Seiferts’ land. They even permitted the sinking of a boat in the boathouse, thereby rendering the Sei-ferts’ side unusable.

While the Thibeaults denied ever seeing a copy of a petition of complaints being circulated by the neighbors, Mrs. Thibeault was overheard telling a friend that they had received the petition. In any event, when the Thibeaults got wind of the petition, they came to Florida to clean up the premises. While the objectionable activities were then temporarily discontinued, as soon as the Thibeaults left for Canada, the same pattern of conduct recurred. After the Thi-beaults returned to Canada, there is no indication that they ever sought to determine whether there had been a recurrence of the objectionable conduct.

The Thibeaults had a duty to take reasonable steps to see that those they permitted to occupy their premises did not harass the Seiferts and violate the injunction. I believe the evidence taken as a whole supports the court’s determination holding the Thi-beaults responsible for the continuing violations of the injunction and the offensive conduct of the occupants of their premises which occurred for more than a two year period. Consequently, I would affirm the judgment in its entirety.


author: HOBSON, Acting Chief Judge.

text:
    MAINLANDS OF TAMARAC BY the GULF UNIT NO. FOUR ASSOCIATION, INC. and Condominium Management Resources, Inc., Appellants, v. Jack F. MORRIS and Grace Morris, his wife, Appellees.
    No. 79-2192.
    District Court of Appeal of Florida, Second District.
    July 25, 1980.
    Rehearing Denied Sept. 12, 1980.

      Peter T. Roman of Dunbar, Dunbar & Roman, P.A., Dunedin, for appellants.
    Irene H. Sullivan of Harris, Barrett & Dew, St. Petersburg, for appellees.
   HOBSON, Acting Chief Judge.

Appellants Mainland of Tamarac By The Gulf Unit No. Four Association (the Association) and Condominium Management Resources, Inc. (Management) appeal an order assessing costs, granting appellees’ motion to strike appellants’ motion for award of attorney fees, and denying appellants’ motion for award of attorney fees.

Unit owners Jack and Grace Morris brought suit against the Association and Management seeking injunctive relief, specific performance and damages with regard to the installation and operation of a catch basin and drainage system adjoining appel-lees’ property. The court, after a nonjury trial, entered final judgment in favor of the Association and Management.

Appellees’ complaint included an allegation that appellees were entitled to reasonable attorney fees pursuant to Section 718.-303, Florida Statutes. Appellants’ answer specifically denied the allegation that Section 718.303 provided entitlement to attorney fees and further made no specific plea .for attorney fees.

The parties stipulated during trial that the question of attorney fees and costs to the prevailing party would be heard at a hearing subsequent to the final hearing in the case. The stipulation was filed with the court and in the final judgment the court reserved jurisdiction for the purpose of obtaining appropriate motions for awarding attorney fees and costs. After a hearing on the matter, the court denied appellants’ motion for attorney fees; awarded appellants costs in part and denied appellants costs in part.

We reverse that portion of the final judgment that denied attorney fees to the Association. We affirm the portion of the final judgment that denied attorney fees to Management and apportioned costs.

Section 718.303 provides that unit owners and associations may bring actions against each other or against the developer’s directors. The section goes on to state that “[t]he prevailing party is entitled to recover reasonable attorney’s fees.” This section does not apply to Management since it is neither a unit owner nor an association. Therefore, the trial court correctly denied Management attorney fees.

Regarding the Association, however, we hold that Section 718.303 specifically provides for attorney fees where the association prevails in a suit brought against it by unit owners. In view of the stipulation entered into between the parties and appel-lees’ failure to object to the matter during trial, the failure of the Association to plead entitlement to attorney fees does not preclude the award.

We note that the Association and Management employed the same attorneys in this case. It will be necessary for the Association to present evidence at a subsequent hearing on just which portion of the total fee applies to the Association.

The denial of appellants’ costs for certain depositions which were not ultimately used at trial is a matter within the sound discretion of the trial court. There is no showing that this discretion was abused in the instant case; therefore, we will not disturb that portion of the judgment.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

BOARDMAN and DANAHY, JJ., concur.


text:
    Carey J. WALTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2288.
    District Court of Appeal of Florida, Second District.
    July 30, 1980.
    Rehearing Denied Sept. 9, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Reversed. Hilty v. State, 386 So.2d 1236 (Fla. 2d DCA 1980).

SCHEB, C. J., and BOARDMAN and OTT, JJ., concur.


text:
    June RILEY, a/k/a June Miller Riley, a/k/a June Arlene Riley, Appellant, v. STATE of Florida, Appellee.
    No. 79-2013.
    District Court of Appeal of Florida, Second District.
    July 30, 1980.
    Rehearing Denied Sept. 18, 1980.
    Jack T. Edmund, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This appeal is dismissed. Hardison v. State, 385 So.2d 738 (Fla.2d DCA 1980).

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    DAYTONA MIGI OF JACKSONVILLE, INC., Appellant, v. DAYTONA AUTOMOTIVE FIBERGLASS, INC., Appellee.
    Nos. OO-436/T1-142, OO-470/T1-148.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Rehearings Denied Sept. 18, 1980.

      S. Gordon Blalock, Jacksonville, for appellant.
    J. Doyle Tumbleson, Daytona Beach; for appellee.
   SHARP, Judge.

Litigation between Daytona Automotive Fiberglass, Inc. (hereafter called D.A.F.) and two corporations with whom it contracted to do business, Daytona Migi of Jacksonville, Inc. (hereafter called D.M.-Jax) and Daytona Migi Corporation, Inc. (hereafter called D.M.C.), was consolidated for a non-jury trial and for these appeals. The parties took appeals and cross appeals from the final judgment and “amended” judgment.

We affirm the judgment of the lower court which denied any claims or counterclaims between D.A.F. and D.M.-Jax, because there was insufficient evidence to establish that D.M.-Jax violated any copyright or trade-mark belonging to D.A.F. without its knowledge and consent, and because the evidence established the two distributor agreements between the parties never became effective through failure of D.M.-Jax to make the required purchases of Migi body kits. We also affirm the lower court’s denial of D.A.F.’s trademark infringement claims against D.M.C. for the same reasons and the allowance of D.M.C.’s replevin count against D.A.F. However, we reverse the judgment of the lower court awarding D.M.C. $51,000.00 damages against D.A.F., and requiring specific performance of the Exclusive Assembly Agreement by D.A.F.

Laverne Martincic is the president of D.A.F. In 1975-76, her husband, Joe, designed and engineered molds to produce a fiberglass body or replica of the 1951 M.G.T.D. D.A.F. fitted the “Migi” body on a Volkswagen chassis, and sold it as an assembled car, or sold the body kit to dealers ready for assembly by them in their facilities. Most of D.A.F.’s sales were in the form of body kits to dealers. In June of 1977, Henry C. Anderson came to Daytona to buy a car from D.A.F. He was so impressed with the car, he opened negotiations with Laverne to become a dealer and master-distributor, to take over the assembly and sales function of the business, and to acquire the ownership and control of D.A.F. He formed D.M.-Jax and D.M.C. to carry out these functions. The Exclusive Assembly Agreement was executed by D.M.C. and D.A.F. on August 19, 1977, and D.M.C. began assembling “Migi’s” in a warehouse next door to D.A.F. in Holly Hill.

Laverne and Henry drafted their own agreements without benefit or advice of counsel. The lack of clarity in the draftsmanship led to misunderstandings and a rupture in their relationship. Laverne declared the Exclusive Assembly Agreement and other contracts between D.A.F. and Henry’s corporations terminated on January 2, 1978. Henry claimed the Exclusive Assembly Agreement was wrongfully and prematurely terminated by Laverne, and the trial court found Laverne at fault for the breach. The conclusions of the trial judge should not be overturned where there is sufficient evidence to sustain his findings. We do not do so in this case. However, the Exclusive Assembly Agreement was too vague and ambiguous to be specifically enforceable, and D.M.C. failed to establish a sufficient basis for the award of damages based on anticipated profits.

The Exclusive Assembly Agreement had a ten year term. The parties recited that D.A.F. was selling its “assembly division.” D.A.F. agreed not to assemble any cars for sale, and to purchase all of its assembled cars from D.M.C. as a “dealer”. D.M.C. agreed to sell the assembled cars to D.A.F. dealers, and to the “general public.” D.M.C. purchased inventory and equipment, totaling approximately $3,000.00 and assumed overhead expenses for employees and the warehouse. D.M.C. agreed to pay its “pro-rata” share of advertising done by D.A.F. D.M.C. paid D.A.F. $5,381.39 for this contract. Henry and Laverne also executed an option giving him rights to buy the stock of D.A.F. for $150,000.00 and other considerations. They also prepared, but never signed, an “Exclusive Marketing Agreement” after September 1977, which would have given D.M.C. the right to control all sales, advertising, marketing, and use of D.A.F.’s trademarks.

Shortly after executing the Exclusive Assembly Agreement, Laverne and Henry found they had basic disagreements and misunderstandings. Laverne claimed D.M.C. was supposed to pay 40% of her general advertising costs; and Henry said D.M.C. was only responsible for advertising in D.M.C.’s sole name. The agreement does not cover these points. D.M.C. refused to sell D.A.F. assembled cars at any discount, even though the agreement provided D.A.F. would sell D.M.C. the body kits at a 40% discount, and “act in the capacity of a dealer of S.R.I. assembled products.” D.M.C. then objected to D.A.F. assembling cars itself to fill its dealer’s orders. Henry later took the position that D.M.C. had the right under this agreement to set up dealers, grant exclusive distributorships, and engage in general advertising and promotional efforts using D.A.F.’s trademark and trade name. Laverne strenuously objected to this, pointing out that the agreement granted D.M.C. only exclusive assembly rights and the right to sell to D.A.F. dealers and distributors. Again, the agreement fails to cover these disputed points.

The basic terms of the Exclusive Assembly Agreement are so unclear and so indefinite as to make specific performance an improper remedy for its breach. Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137 (Fla.3d DCA 1974); Brown v. Dobry, 311 So.2d 159 (Fla.2d DCA 1975); see Unatin v. Hudon, 383 So.2d 1131 (Fla. 5th DCA 1980). As stated in Dobry, “it must appear from the writing constituting the contract that the obligation of the parties with respect to conditions of the contract . . . are clear, definite and certain.” 311 So.2d at 160. Nor are we aided in this case by the “custom and practice” of the parties, since the disagreements surfaced almost as soon as the document was signed. The agreement in this case contains such large gaps of vital terms, it cannot be specifically enforced, particularly over a ten year period.

As explained by the trial judge at the hearing on motion for new trial, the award of $51,000.00 to D.M.C. was based on the projected profit D.M.C. would have made on sales of cars, had the assembly agreement been performed over a period of one year and five months (from January 2, 1978 to date of the judgment). A total profit on sales of $3,000.00 per month would require D.M.C. to sell at least 6 cars per month, and realize a profit of $500.00 per car. Henry testified the largest number of cars D.M.C. ever had under assembly at one time was eight to nine. He projected profits of $1,315.00 and $1,870.00 per car on sales to dealers, based on sales of 35 to 40 assembled cars per month. But D.M.C. did not have the capacity to assemble that many cars, nor did D.A.F. have the capacity to produce that many body kits per month. Henry admitted D.M.C. never made any profit on any of its sales during the six months the agreement was operating. Lá-veme testified D.A.F. “assembled” only one to two cars per month, and she did not know what her company’s net profit was on assembled cars. D.A.F. realized a profit of $400.00 to $500.00 per sale on sales of the body kits to dealers.

Based on this record, the award of damages totaling $51,000.00 to D.M.C. cannot be upheld. Florida Outdoor, Inc. v. Stewart, 318 So.2d 414 (Fla.2d DCA 1975); Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975). In order to recover lost profits, there must be an on-going business with an established sales record and proven ability to realize profits at the established rate. Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla.3d DCA 1975); Belcher v. Import Cars, Ltd., 246 So.2d 584 (Fla.3d DCA 1971).

However, where it is not possible to establish lost profits as a measure of damages in a breach of contract case, it is possible to recover other kinds of damages, such as lost capital, investments, expenses and out-of-pocket costs. D.M.C. established a basis for an award of this kind of damages. Therefore, we remand this matter to the trial court for a redetermination of the amount of damages due D.M.C. from D.A.F. consistent with this opinion. Because of the lapse of time since the trial, the lower court may in its discretion rely on the record or take additional testimony concerning D.M.C.’s damages.

We affirm the award of $8,937.35 to D.A.F. against D.M.C. on its counterclaim, but it shall be stayed, pending the redeter-mination of damages for D.M.C.

AFFIRMED in part; REVERSED in part and REMANDED.

BROWNLEE, JACKSON 0., Associate Judge, concurs.

CROSS, J., concurs only in conclusion.

      . Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Greenwood v. Oates, 251 So.2d 665 (Fla.1971); Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla. 1962).

      . This option was the subject of other litigation not involved in these suits.

      . The Agreement was between D.A.F. and Southern Repli-Car, Inc., which later changed its name to D.M.C. Paragraph 10 provided:
      S.R.I. agrees to pay its pro-rata share of the assembled product advertising placed in conjunction with the advertising of D.A.F. In all forms of national, regional, and local mediums including its pro-rata share of the cost of Daytona Migi color brochures and video tapes depicting assembled products of S.R.I.

      . Paragraph 4 of the Agreement provided only: D.A.F.I. will recommend to their dealers, the purchase of assembled units from S.R.I. and will supply a list of dealers to S.R.I. so that they may contact the dealers and advise them of costs on assembled units.

      . § 672.208 Fla.Stat. (1979); Restatement of Contracts §§ 245-249 (1932).

      . 17 Fla.Jur.2d Damages § 28 (1980). Plantation Key Developers v. Colonial Mortgage, 589 F.2d 164 (5th Cir. 1979); Calamari and Perillo, Contracts § 205, p. 327 (1970). Restatement of Contracts § 333 (1932).


text:
    Donald F. WINTER, et ux., Appellants, v. INTERNATIONAL MOTEL BROKERS, INC., etc., Appellees.
    No. 79-207.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Rehearing Denied Sept. 18, 1980.

      C. Allen Watts, of Watts, Biernacki & Frost, P. A., DeLand, for appellants.
    John F. Hughes, Daytona Beach, for ap-pellees.
   PER CURIAM.

Donald and Betty Winter, husband and wife, appeal from a judgment entered after a non-jury trial finding them jointly and severally liable for a real estate commission to International Motel Brokers, Inc., earned upon sale of a motel owned by Donald Winter. We affirm the judgment against the husband, but reverse it against the wife.

In January of 1978, Betty Winter executed an agreement giving International an exclusive right to sell a motel in Daytona Beach. Betty thought she was a joint owner of the motel at the time she signed the agreement. In fact, her husband was the sole owner of the motel. He subsequently ratified her signature on his behalf.

Although a party may bring suit against both the agent and the principal on a contract, a judgment cannot be entered against both. Bertram Yacht Sales, Inc. v. West, 209 So.2d 677 (Fla.3d DCA 1968); Hohauser v. Schor, 101 So.2d 169 (Fla.3d DCA 1958). Betty Winter acted as an agent for her husband, fully disclosed as to his one-half ownership, and undisclosed as to her “supposed” one-half interest. In both situations the liability of the agent and disclosed/undisclosed principal is alternative rather than joint and several. The broker is entitled to a commission from the owner of the property, but not the owner’s agent as well.

AFFIRMED in part; REVERSED in part.

FRANK D. UPCHURCH and SHARP, JJ., and JAMIESON, FRANCES ANN, Associate Judge, concur.

      . Williston on Contracts § 289 (3d Ed. Jaeger 1959); Restatement (Second) of Agency §§ 210(1), 210 A, 184, Comment e (1958).


author: EVANS, VERNON W, Jr, Associate Judge.

text:
    George H. BAKER, II, Appellant, v. Anne Timmons BAKER, Appellee.
    No. 79-391.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Rehearing Denied Sept. 16, 1980.

      James N. Davis, Daytona Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   EVANS, VERNON W, Jr, Associate Judge.

This is an appeal from a final judgment of dissolution of marriage which awarded the wife, in satisfaction of her special equity and as lump sum alimony, the husband’s interest in the former marital residence property and surrounding land. The husband contends that this award was an abuse of the trial court’s discretion.

The parties were married in 1963, and no children were born of this marriage. They worked together first at Cape Kennedy in separate jobs pooling their economic resources, and later in the operation of a charter and booking service in Ponce Inlet. The income from the latter business went into a joint checking account. In 1977 the wife contracted a carcinoma which resulted in removal of the right breast. A subsequent malignancy was discovered which now afflicts the left breast. The wife is currently awaiting treatment for the latter malignancy. One of the wife’s physicians prognosticated that the probability of a complete remission is now less than 10%. Medical expenses incurred to date for the wife total approximately $2,376.05 and treatment of the present malignancy is expected to cost in excess of $10,000. The wife does not have the benefit of any medical insurance coverage.

The husband was last employed as a grocery clerk in a convenience market and the wife’s last income earning activity with the jointly run business terminated in 1977.

During 1967 the parties purchased in Ponce Inlet four adjoining lots, one of which contains the marital residence. The property was purchased for the sum of $32,-000 and an $8,000 down payment was made. Of that sum $2,500 was borrowed from the wife’s mother. The wife contends that the $2,500 was repaid with her funds, while the husband contends that it was repaid from joint funds. The balance of the purchase price was paid pursuant to a purchase money mortgage from the parties’ joint bank account, and there are no liens or encumbrances on the property. The fair market value of the property is $100,000, not including the value of the marital residence and is essentially the only asset of any real consequence acquired by the parties during their 16-year marriage.

In granting lump sum alimony the trial court should be guided by all relevant circumstances to insure equity and justice between the parties as that principle is set forth in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We are of the opinion that an award of lump sum alimony that leaves the husband virtually without anything and creates an instant estate of the value of in excess of $100,000.00 in the wife was an abuse of discretion, particularly where the needs of the wife would be more properly provided for through an award of permanent periodic alimony.

It should be noted that this case was presented to the trial court on a record compiled by a special examiner (court reporter) who was neither empowered to make findings of fact or recommendations. Consequently, the final judgment under review does not come to us clothed with the full presumption of correctness that is accorded a final judgment where the chancellor has heard the evidence. Conklin v. Pruitt, 182 So.2d 644 (Fla.lst DCA 1966). It should also be pointed out that the trial court did not have the benefit of either the Canakaris decision or Duncan v. Duncan, 379 So.2d 949 (Fla.1980), and therefore the trial court should also reconsider the special equity award in the light of the latter case.

Final judgment herein is accordingly reversed and remanded to the trial court for further proceedings consistent with this opinion.

DAUKSCH, C. J., and ORFINGER, J., concur.


author: FRANK D. UPCHURCH, Jr., Judge. CROSS, Judge,

text:
    Thomas G. HAENDEL, Appellant, v. Vincent PATERNO and Paterno Marine Sales, Inc., a Florida Corporation, Appellees.
    No. NN-444/T1-90.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    Rehearing Denied Sept. 18, 1980.

      Burke D. Chester and Edgar M. Dunn, Jr., Daytona Beach, for appellant.
    Arthur M. Ossinsky, Daytona Beach, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from an order of the Circuit Court for Volusia County providing for remittitur or a new trial.

This suit arose from an alleged breach of an oral contract and fraud in the sale of stock of a closely held corporation. The claim was tried before a jury which returned a verdict of $100,000.00 in compensatory damages and $75,000.00 in punitive damages.

Appellees, Vincent Paterno and Paterno Marine Sales, Inc., who were the defendants below, moved for a new trial and remitti-tur. The trial court directed that the verdict on punitive damages be set aside and remitted to zero and directed that the verdict as to compensatory damages be remitted to $20,000.00. The court further provided that if plaintiff failed to enter remitti-turs, the motion for a new trial on all issues would then be granted.

Basically, the following questions are presented on appeal:

1. Was the order granting a new trial deficient as a matter of law?
2. Did the court err in granting remitti-tur or new trial on the issue of compensatory damages?
3. Did the court err in granting remitti-tur or new trial on the issue of punitive damages?

Appellant Thomas G. Haendel, the plaintiff below, was the manager of appellee Paterno Marine Sales, Inc., a corporation wholly owned by appellee Vincent Paterno. In December of 1977, Paterno approached Haendel and offered to sell him forty percent of Paterno Marine Sales, Inc. for $20,-000.00. Haendel, as manager, was familiar with the financial history and condition of the corporation.

Haendel contended that Paterno promised that all debts of the corporation would be paid off except a Chemical Bank note of approximately $237,000.00 which would be handled so the corporation would not have to pay it. Paterno claimed that he promised only to see that Haendel’s “share” of the corporation would not be responsible for the loans. Although Haendel paid the corporation the $20,000.00, he did not receive the stock. Shortly after payment, Paterno had the corporation pay him $20,000.00 as payment on a stockholder loan. In June 1978, Paterno fired Haendel. When Haen-del asked about his stock, Paterno told him “chalk it up as a business loss.”

A. The first question is whether the order granting a new trial was deficient as a matter of law. While a trial court has broad discretion to grant a new trial on proper grounds, Ortega v. Perrini & Sons, Inc., 371 So.2d 203 (Fla. 2d DCA 1979), it is the duty of the trial judge to grant a new trial when he concludes that the verdict is against the manifest weight of the evidence or if he determines that the jury has been influenced by extraordinary considerations or misled by the force and credibility of the evidence. White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). The supreme court stated in Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla. 1978):

Although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla. 3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused. (Emphasis supplied.)

See also Rule 1.530(f), Florida Rules of Civil Procedure, which requires that an order granting a new trial state the specific reasons therefor.

In the case before us, the court made basic findings concerning the award of compensatory damages and punitive damages which met the requirements set forth in Wackenhut. The court order refers to two specific errors made by the court and cites support from the record. Therefore, the order providing for remittitur or a new trial was not deficient as a matter of law.

B. The second question which we consider concerns the jury’s verdict as to compensatory damages.

Appellant Haendel contends that the jury verdict of $100,000.00 as compensatory damages was amply supported by the record. Haendel claims that Paterno’s testimony or that of Gary Kiel, Haendel’s “expert” witness, was sufficient to establish the “benefit of the bargain” to which he was entitled.

. The “benefit of the bargain” theory on which Haendel elected to proceed was described in Ashland Oil, Inc. v. Pickard, 269 So.2d 714, 723 (Fla. 3d DCA 1972):

In actions for breach of contract, the aim is not the mere restoration to a former position as in tort, but is the awarding of a sum which is equivalent to the performance of the bargain; the attempt is to place the plaintiff in the position he would be in if the contract had been fulfilled.

The record reflects that Paterno did not testify as to the market value of the corporate stock. When asked if he had an opinion as to the market value of the stock, he replied negatively. This is not surprising because the market value of a closely held corporation is often difficult to ascertain with accuracy.

The other witness on which Haendel relies was Mr. Kiel, who was initially qualified as an expert. When Haendel attempted to qualify Mr. Kiel, he testified that he was a realtor and appraiser, had a Bachelor of Science degree in business administration and had attended many real estate oriented courses. Paterno objected to his qualification as an expert in the valuation of closely held corporations. The court, on the basis of the testimony as to expertise, determined that Haendel had made a “prima facie case of expertise.” Mr. Kiel admitted that he had never been previously hired for his ability to appraise the stock of a closely held corporation. He did not testify directly as to the market value of the corporate stock. He testified generally that the value of the stock would be increased by the amount of the reduction of outstanding debts. The trial judge, in the order granting a new trial, found that it was error to permit the jury to consider the “benefit of the bargain” theory of damages because there was no competent evidence on which the jury could determine such damages. The trial court concluded that Mr. Kiel was not qualified by training or expertise to value the stock, and therefore it was incorrect to permit the jury to receive his testimony. For such reasons, the court properly granted the new trial. Mr. Kiel’s qualifications were impressive but they related to appraisal of real estate. Real estate was not an asset of the corporation. His knowledge of real estate and his general business background were not sufficient to qualify him as an expert as to the market value of stock in closely held corporations. Even if the court had determined that Mr. Kiel, was an expert in the field, his testimony to the general effect that paying debts of a corporation would increase the value of its stock to the extent the total debt was diminished was not a proper basis for the jury to arrive at its verdict of $100,000.00. Therefore, the court was correct in its decision to order remittitur.

C. The third question is whether there was sufficient evidence of fraud to justify the jury’s verdict for punitive damages.

Appellant Haendel contends that the evidence adduced at trial was sufficient to support the jury award of $75,000.00 in punitive damages and therefore the trial court was in error in granting a new trial.

Punitive damages are generally not recoverable for breach of contract unless there are proper allegations and proof of intentional wrong, insult, abuse or gross negligence constituting an independent tort. Country Club of Miami Corp. v. McDaniel, 310 So.2d 437 (Fla. 3d DCA 1975). The act which constitutes the tort must have been willfully and wantonly committed or attended by fraud, malice or gross negligence. Charter Air Ctr., Inc. v. Miller, 348 So.2d 614 (Fla. 2d DCA 1977).

Haéndel, alleging fraud in the inducement, contends that Paterno had no intention of performing the agreement as promised. Compensatory and punitive damages are recoverable for fraud in the inducement and an action may be based on oral and written representations in the form of contractual promises or statements of present intention. Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972).

Paterno, when testifying as an adverse witness, admitted that he had no intention of paying the corporate debts. It was also established that he had never delivered the stock, that he caused $20,000.00 to be paid to himself shortly after Haendel paid for the stock and within six months he fired Haendel. Apparently the jury chose to believe HaendeTs version of the transaction and concluded that Paterno had no intention to pay the corporate debts at the time he approached Haendel and induced him to purchase the stock. Whether fraud exists in a particular case is a question of fact for the jury. Casey v. Welch, 50 So.2d 124 (Fla. 1951); Winter Park Telephone Co. v. Strong, 130 Fla. 755, 179 So. 289 (1937). Where there is substantial and conflicting evidence about any material question, the finding of the jury should not be disturbed. Florida Power & Light Co. v. Horn, 100 Fla. 1339, 131 So. 219 (1930).

Here, then, the amount of the award cannot be said to be an abuse of the jury’s discretion because awards in a much higher ratio to compensatory damages have been sustained. Ocean Mile Galleries v. Huguenor, 351 So.2d 1043 (Fla. 4th DCA 1977); Air Line Employees Ass’n. Int’l v. Turner, 291 So.2d 670 (Fla. 3d DCA 1974).

There was competent evidence to support the finding of the jury in its award of punitive damages and therefore it was error to grant a new trial on that issue.

The order appealed is affirmed as to the remittitur or new trial on compensatory damages. The order is reversed as to punitive damages. Should appellant fail to enter remittitur as provided in the order as to compensatory damages, all issues including punitive damages shall be tried upon the new trial.

DAUKSCH, C. J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

I would affirm the trial court’s order granting a new trial as to both compensatory and punitive damages.

      . This court held in American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980), that plaintiff must be entitled to recover compensatory damages for the underlying breach before punitive damages will lie.


author: OTT, Judge.

text:
    Warren D. TUBBS, Appellant, v. Charlene TEEPLE, Appellee.
    No. 79-1617.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 1980.
    Rehearing Denied Sept. 12, 1980.
    Marsha B. Wilson, New Port Richey, for appellant.
    James J. Altman, Jr. of Altman & Altman, New Port Richey, for appellee.
   OTT, Judge.

We consider here whether the Florida Anti-Lapse Statute (§ 732.603, Fla.Stat.) applies to a testamentary gift to a stepdaughter. Concluding that it does not, we reverse an order based on a contrary view.

The will of the decedent named her stepdaughter as residuary beneficiary. The stepdaughter predeceased the testatrix. The stepdaughter left two daughters as her only heirs at law. The trial court entered an order naming these two daughters as beneficiaries of the residue of the estate in preference to appellant, a half brother and only heir-at-law of the testatrix.

When a legatee under a will predeceases the benefactor, the gift lapses. Drafts v. Drafts, 114 So.2d 473 (Fla. 1st DCA 1959). But if the predeceased legatee is a grandparent, or a direct lineal descendant of a grandparent of the testatrix, then the descendants of the legatee take the gift. § 732.603, Fla.Stat.

Obviously, a stepdaughter is not a descendant of her stepparent, and therefore the statute cannot save the gift to her from lapsing. Appellant is entitled to the gift and the trial court should have so ordered.

Appellee purports to find support for the order in Section 732.611, Florida Statutes, but that statute merely directs how heirs will share property passing to them under a will. We see no connection between its purview and the issue presented here.

The order is reversed, and the case is remanded to the court below with instructions to enter an order naming appellant as beneficiary of the property bequeathed to decedent’s stepdaughter.

BOARDMAN, Acting C. J., and RYDER, J., concur.


text:
    Lorayne WALSH, Appellant, v. Bermot WALSH, Appellee.
    No. 79-2102.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 1980.
    Rehearing Denied Sept. 18, 1980.

      Dick Lee and Jordan L.'Wallach of Lee & Surfus, Sarasota, for appellant.
    Robert W. Beaudry of Lyons & Beaudry, Sarasota, for appellee.
   SCHEB, Chief Judge.

The trial court dismissed the wife’s petition to enforce the child support provisions of a property settlement agreement incorporated in the divorce decree. The court based its ruling on the ground that it did not have personal jurisdiction over the nonresident husband. We hold that the husband consented to personal jurisdiction by stipulating in the agreement to its incorporation in any divorce decree. We reverse.

Lorayne Walsh and Dermot Walsh married in New York in 1956. In November 1964 they separated, entering into a property settlement agreement under which the husband was required to pay $150 per month child support to the wife until their minor daughter attained her majority, was emancipated or completed her education, whichever occurred last. The agreement also provided that the husband would pay the higher education expenses of the daughter, if his financial condition permitted, and that he would establish a trust fund or account for that purpose. Finally, the agreement provided:

Nothing herein shall be construed to bar or prevent either party from suing for absolute divorce or annulment in any court of competent jurisdiction. This agreement, if acceptable to the Court, may be incorporated by reference in any judgment or decree so obtained.

The wife obtained a final decree of divorce in Sarasota County, Florida, in September 1965, after having served the husband by publication. In its decree the court approved and incorporated the property settlement agreement, and specifically directed the parties to abide by its terms. In September 1978 the wife petitioned the circuit court in Sarasota County to enforce the provisions of the agreement regarding the educational expenses of the daughter. She served the husband personally under Florida’s long arm statute, Section 48.194, Florida Statutes (1979). The husband, having never resided in Florida, moved to dismiss on the ground that the court did not have personal jurisdiction over him. The court granted the motion and the wife filed this appeal.

The wife had to establish residency in Florida at the time of the initial divorce proceeding as required by Section 65.02,

Florida Statutes (1965) (now appearing at § 61.021, Fla.Stat. [1979]). The court therefore, had in rem jurisdiction of the marriage and the power to dissolve it. Orlowitz v. Orlowitz, 208 So.2d 849 (Fla.3d DCA 1967); see Rollins v. Rollins, 155 Fla. 83, 19 So.2d 562 (1944). When the court granted the wife’s request to incorporate the property settlement agreement in its decree, it effectively ordered the husband to pay the daughter’s educational expenses pursuant to the agreement. Mendel v. Mendel, 257 So.2d 293, 296 (Fla.3d DCA 1972). In order to do so, it had to have personal jurisdiction of the husband for this limited purpose. See Orlowitz, 208 So.2d at 850-51.

Since the court had subject matter jurisdiction, the husband could consent to personal jurisdiction on constructive service, or on personal service outside the jurisdiction of the court. Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940); 13 Fla.Jur.2d Courts and Judges § 103 (1979). Here the husband consented to personal jurisdiction as to matters in the property settlement agreement when he agreed that any court of competent jurisdiction could incorporate the agreement in a divorce or annulment decree.

Surely the primary purpose of the parties’ agreeing to incorporate the agreement was to allow a court to enforce it. On incorporating the agreement the court elevated it to the dignity and effect of a court decree, which it then had continuing jurisdiction to enforce. Mendel, 257 So.2d at 296. The wife, therefore, properly applied to the court to enforce the agreement. See Clem v. Clem, 183 So.2d 742 (Fla.3d DCA 1966). Since a court can enforce monetary obligations against a person’s property located inside the boundaries of the state in which it sits without having jurisdiction over the person, there was no reason for the husband to consent to this type of enforcement. See Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872 (1941). It follows, therefore, that the husband was consenting to enforcement against his property located outside of the boundaries of the state in which the enforcing court sits, and was consenting to personal jurisdiction on constructive service for that type of enforcement.

Accordingly, the trial court erred in dismissing the wife’s petition for enforcement for lack of jurisdiction over the husband. We reverse and remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.

      . The husband does not challenge the sufficiency of service or adequacy of notice in the initial divorce proceeding.

      . The wife styled her petition as one to enforce and to modify the decree. In reality, however, she sought only to force the husband to comply with the provisions of the property settlement agreement regarding the educational expenses of the daughter.

      .Given the court’s jurisdiction to incorporate the property settlement agreement, the wife need not have complied with the provisions of the long arm statute. Notice to the husband which satisfied due process considerations was sufficient. Kosch v. Kosch, 113 So.2d 547 (Fla. 1959).


text:
    Willard BROXSON, Appellant, v. STATE of Florida, Appellee.
    No. PP-88.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.
    Rehearing Denied Oct. 17, 1980.
    Willard Broxson, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

Broxson appeals an order denying his motion for postconviction relief entered without an evidentiary hearing, Fla.R.Crim.P. 3.850. He contends his court-appointed counsel failed to render reasonably effective assistance of counsel during his jury trial on charges of larceny of an automobile and possession of a firearm by a convicted felon.

Broxson’s allegations supporting his claim are either conclusively refuted by the record (Dancer v. State, 259 So.2d 764 (Fla. 1st DCA 1972)) or do not establish ineffective counsel. The claim that his counsel was ineffective by reason of failure to object to the joint trial with Earl Dancer is unavailing because the factual allegations in Brox-son’s motion, seeking to establish a conflict of interest between himself and Dancer, are in clear conflict with Broxson’s testimony at trial.

The order is accordingly affirmed.

ROBERT P. SMITH, Jr., BOOTH and WENTWORTH, JJ., concur.


author: FRANK D. UPCHURCH, Judge.

text:
    Eddie James SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 78-259/T4-55.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 16, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Judge.

This is an appeal from a judgment and sentence of the Circuit Court for Orange County involving the offense of receiving stolen property.

Appellant raises as error that the trial court failed to grant appellant’s motion for mistrial when the state produced testimony as to appellant’s post arrest silence.

We reverse.

On March 23, 1977, appellant was arrested in connection with the theft of an automobile and was advised of his Miranda rights. During the trial, the prosecution asked Officer Eagle, the arresting officer, the following question:

Q. Did you have further conversation with Eddie Scott there at that time, Mr. Ferguson?
A. Yes, sir, I did. It was more or less asking basic questions, where he had been, what he had been doing, so forth. For the most part, he refused to answer any questions, and he denied any allegations that were made.

This testimony was clearly improper as the court recognized in sustaining the objection and directing the jury to disregard it. However, the error cannot be considered harmless. The error was constitutional in dimension and it is reversible error not to have granted the mistrial. Weiss v. State, 341 So.2d 528 (Fla.3d DCA 1977). It was not cured by the admonition to the jury to disregard the testimony. Bennett v. State, 316 So.2d 41 (Fla.1975). See also Harris v. State, 381 So.2d 260 (Fla.5th DCA 1980).

REVERSED and REMANDED for new trial.

DAUKSCH, C. J., and ORFINGER, J., concur.