text:
    ARGONAUT INSURANCE COMPANY, Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY, Appellee.
    No. 79-1188.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.
    Rehearing Denied March 7, 1980.

      Ronald W. Sikes of Welbaum, Zook, Jones & Williams, Orlando, for appellant.
    Richard Benjamin Wilkes of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P. A., Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a final summary judgment in a case in which a contractor’s surety unsuccessfully sought recovery from a subcontractor’s surety.

According to the record, Pinehurst Associates, a limited partnership, entered into a contract with Peninsular State Builders, Inc., in 1972 under which Peninsular was to construct an apartment complex for Pine-hurst. Pursuant to the contract, Peninsular obtained a performance bond from Argonaut Insurance Company. The bond named Peninsular as principal and Pinehurst as obligee.

Peninsular subcontracted the heating, air conditioning and ventilation work on the apartment project to McBroome & Bennett Contractors, Inc. McBroome & Bennett in turn obtained a performance bond from Commercial Standard Insurance Company which named Peninsular as obligee.

In January 1974, Peninsular went into default on its prime contract and was unable to complete the apartment project. Thus in May 1974, Argonaut took over as completing surety to finish work on the apartments. In the meantime, McBroome & Bennett was either unable or refused to complete its subcontract work. Consequently, Argonaut requested that Commercial, as surety for McBroome & Bennett, accept responsibility for the excess costs it claimed were caused by McBroome & Bennett’s breach. Commercial refused to do so, and Argonaut brought suit against Commercial. Upon motion, the court granted summary judgment for Commercial, ruling that Argonaut did not have standing to bring suit on the subcontract bond.

The court predicated the summary judgment upon a limiting clause in Commercial’s bond which read as follows:

No right of action shall accrue on this bond to or for the use of any person or corporation other than the Obligee named herein or the heirs, executors, administrators or successors of the Obligee.

The court concluded that Argonaut was neither the obligee nor the heir, executor, administrator or successor of the obligee and was, therefore, without standing to bring this suit.

Generally speaking, an entity has standing to sue when it has such a legitimate interest in a matter as to warrant asking a court to entertain it. General Development Corp. v. Kirk, 251 So.2d 284 (Fla. 2d DCA 1971). Here, the terms of Argonaut’s performance bond required it to complete the construction when Peninsular defaulted. In so doing Argonaut became subrogated to the rights of both its principal (Peninsular) and its obligee (Pinehurst). Travelers Indemnity Co. v. Evans Pipe Co., 432 F.2d 211 (6th Cir. 1970); St. Paul Fire & Marine Insurance Co. v. United States, 370 F.2d 870 (5th Cir. 1967). Thus, as a consequence of carrying out Peninsular’s construction contract with Pinehurst, Argonaut was entitled to assert the claim that McBroome & Bennett had breached its subcontract with Peninsular. U. S. Fidelity & Guaranty Co. v. North American Steel Corp., 335 So.2d 18 (Fla. 2d DCA 1976).

We also hold that the limiting language in Commercial’s bond did not preclude Argonaut from making a claim against Commercial because Argonaut occupied the status of a successor to Peninsular, the obligee of Commercial’s bond. Florida courts have generally defined a successor as “he that followeth or cometh in another’s place” or more recently as one “who follows or takes the place another has left and sustains the like part or character.” Beatty v. Ross, 1 Fla. 198, 209 (1847); Albury v. Central and Southern Florida Flood Control District, 99 So.2d 248, 252 (Fla. 3d DCA 1957). Argonaut, as the completing surety for Peninsular fits within these definitions because it stepped into the shoes left by Peninsular and assumed Peninsular’s rights and obligations in taking over Peninsular’s role as general contractor. See 11 J. Appleman, Insurance Law and Practice, 427-28 (1944). Therefore, Arnonaut, as Peninsular’s successor, had a cause of action on Commercial’s bond.

Accordingly, the court’s award of summary judgment to Commercial was improper. We reverse the final judgment and remand the case for further proceedings.

SCHEB and DANAHY, JJ., concur.

      . Commercial suggests that we should give a very narrow construction to the word successor, which would limit it to situations involving successor corporations. We do not believe that so narrow a construction is called for in this context. As far as we can determine, the reason that bonds like the one involved here contain such a clause is to'attempt to protect the surety from the claims of its principal’s subcontractors and materialmen as third party beneficiaries under the bond. See National Union Fire Ins. Co. v. Westinghouse Elec. Supply Co., 206 So.2d 60 (Fla. 3d DCA 1968); American Fire and Cas. Co. v. Charles Sales Corp., 203 So.2d 670 (Fla. 4th DCA 1967); Aetna Ins. Co. v. Estero Mfg. and Builders Supply, Inc., 174 So.2d 747 (Fla. 2d DCA 1965).

      . In view of our disposition of the case, we need not determine the validity or effect of purported assignments of the construction contract made by Peninsular to Pinehurst and Pi-nehurst to Argonaut.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Agustin GARCIA, M. D., and Abbey Hospital, Appellants, v. Adelina TARRIO and Rigoberto Tarrio, Appellees.
    Nos. 79-364, 79-429.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Rehearing Denied March 24, 1980.

      Goodwin, Ryskamp, Welcher & Carrier, and Arthur M. Simon, Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for appellants.
    Greene & Cooper and Robyn Greene, Stanley M. Rosenblatt, Miami, for appellees.
    Before PEARSON, HUBBART and NES-BITT, JJ.
   PER CURIAM.

These consolidated appeals are from a final judgment entered upon a jury verdict in a medical malpractice case and from the cost judgment thereafter entered. The appeal of defendant Abbey Hospital is from both judgments; the appeal of defendant Dr. Garcia is from the cost judgment.

The appellant Hospital urges reversal of the final judgment upon its contention that it was entitled to a directed verdict because the evidence did not establish that appellant Dr. Garcia was the Hospital’s agent and that the negligence proved was that-of Dr. Garcia alone. We find sufficient evidence in the record to support a finding by the jury that Dr. Garcia was in fact the agent of the Hospital. It is not necessary to recite all of the evidence on the issue in order to show the basis of our decision. The record does show that Dr. Garcia was not retained by the patient or the patient’s surgeon. Rather, Dr. Garcia had an agreement with the Hospital guaranteeing him at least 50% of the work at the Hospital; he did not work anywhere else. The Hospital supplied him with the equipment necessary for his work. The administrator of the Hospital, during his seven years tenure, did not recall any patient using an outside anesthesiologist. We hold that these facts were, at the least, sufficient to present a jury question upon the issue of whether Dr. Garcia was the agent of the Hospital or an independent contractor. See Kober v. Stewart, 148 Mont. 117, 417 P.2d 476, 479 (1966), and Knox v. Ingalls Shipbuilding Corporation, 158 F.2d 973, 975-976 (5th Cir. 1947). See also the proposition of law in 69 A.L.R.2d 305, 316 (1960); Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977), and Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (1976).

The issues relative to the taxation of costs are not adequately preserved for appeal. The entire record upon the taxation of costs consists of: (1) the Plaintiff’s Motion to Tax Costs, which carefully itemized the costs claimed; and (2) the corrected Order Taxing Costs. The defendants did not file a written objection to any item of costs claimed by the plaintiffs, nor did they show in writing the grounds for their objection to the allowance of any item of costs. The hearing on the taxation of costs was not reported, and no attempt was made to reconstruct a record of the hearing. Under these circumstances, this court is asked to review, from the beginning, the propriety of various items of cost allowed. This we are unable to do because we do not know the objections made in the trial court, nor do we know the grounds for the objections advanced. See Pittman v. Pittman, 219 So.2d 730 (Fla. 2d DCA 1969), and Worcester Mutual Fire Insurance Company v. Eisenberg, 147 So.2d 575 (Fla. 3d DCA 1962).

Affirmed.


author: PER CURIAM. SCHWARTZ, Judge

text:
    EASTERN STEAMSHIP LINES, INC., and Ares Shipping Corporation, Appellants, v. Lamy MARTIAL, Appellee.
    No. 79-415.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Rehearing Denied March 25, 1980.
    Fowler, White, Burnett, Hurley, Banick & Knight and Frank J. Marston, Miami, for appellants.

      Greene & Cooper and Robyn Greene, William Huggett, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Appellants, Eastern Steamship Lines, Inc. and Ares Shipping Corporation, contend that the trial court committed reversible error in refusing to admit certain photographs into evidence at trial and in denying appellants/defendants’ motion for mistrial.

The record in this cause reflects that the appellee/plaintiff was injured while working as a plumber aboard the vessel S/S Emerald Seas; he filed suit alleging negligence on the theory that the defendants provided him with defective tools and required him to accomplish a two-man task by himself. The cause proceeded to trial, concluding with a jury verdict and a substantial damages award for the plaintiff.

During the course of the trial, the defendants attempted to introduce twenty-nine (29) photographs of the various fire stations aboard the vessel, which ostensibly depicted the octagonal configuration of the valves upon which the plaintiff had been working at the time of the unwitnessed accident. Although the photographs were not included in the pretrial catalogue and were initially found to be inadmissible on that ground, appellants/defendants assert that the trial court should have permitted them to introduce the photographs into evidence on the subsequently-claimed basis that they constituted impeachment evidence. Plaintiff had consistently maintained that the valve upon which he was working was circular in configuration.

For a proper initial determination of the correctness of the trial court’s ruling as to the inadmissibility of the evidence, we must first look to whether the proffered evidence is substantive in nature or solely impeachment material. If the evidence is substantive, then it is required to be listed on the pretrial catalogue; if, however, it is introduced solely for impeachment purposes, it does not necessarily have to be so listed on the pretrial order. Of course where the evidence only becomes pertinent because of prior evidence and does not bear on an issue made by the pleadings, such evidence is for impeachment and the evidence need not be listed. See Corack v. Travelers Insurance Company, 347 So.2d 641 (Fla.4th DCA 1977) and Hartstone Concrete Products Company v. Ivancevich, 200 So.2d 234 (Fla.2d DCA 1967). After reviewing the pleadings and relevant discovery and trial transcripts, we find that the photographs constitute “substantive” evidence; therefore, in order to have been found admissible, they would have had to have been listed on the pretrial catalogue. Additionally, it should be noted that regardless of the possibility that the photographs may also have served to contradict or “impeach” plaintiff’s allegation and testimony as to the actual shape of the valves, the defense would, nevertheless, have had a duty to include them on the pretrial cata-logue and remit copies to plaintiff’s counsel. This is so because certain pretrial procedures cannot be deviated from when particular evidence may have the dual characterization of substantive/impeachment evidence. See Corack, supra.

Therefore, on this point, we find that no reversible error has been demonstrated. Not only was the evidence substantive in nature, and, thus, required to have been listed on the pretrial catalogue, but, when considered in light of the record, we see that it was merely cumulative of other evidence introduced by the defense at trial. Little v. Bankers National Life Insurance Company, 369 So.2d 637 (Fla.3d DCA 1979); Safeco Insurance Company of America v. Albriza, 365 So.2d 804 (Fla.4th DCA 1978); Walker v. City of Miami, 337 So.2d 1002 (Fla.3d DCA 1976); Hughes v. Canal Insurance Company, 308 So.2d 552 (Fla.3d DCA 1975).

Eastern Steamship Lines and Ares Shipping have also raised the point that their motion for mistrial was erroneously denied; they urge that comments made by plaintiff’s counsel during closing argument were so prejudicial to the defense as to have warranted the granting of the defense motion for a mistrial. We agree. While we recognize that the ruling on such a matter rests largely within the sound discretion of the trial court, it is well settled within our body of law that if improper remarks are of such character that neither rebuke nor retraction will destroy their prejudicial and sinister influence, a new trial should be awarded. Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936); LeReitilley v. Harris, 354 So.2d 1213 (Fla.4th DCA 1978); Stewart v. Cook, 218 So.2d 491 (Fla.4th DCA 1969). Cf. Sharp v. Lewis, 367 So.2d 714 (Fla.3d DCA 1979). From a reading of the pleadings and the recorded testimony at trial, we have discerned that such comments were totally improper, inappropriate and irrelevant to the issues of the cause. They appear to have been made solely for the purpose of raising sympathy for the plaintiff based upon a tragic experience totally outside the realm of materiality in the instant lawsuit. On this point, we reverse and remand the cause for further proceedings consistent with the views expressed herein.

Accordingly, we affirm on the first point and reverse and remand on the second point.

SCHWARTZ, Judge

(specially concurring).

Because I believe that our decision will have a much-and-long-needed prophylactic effect upon final arguments in civil cases within this district, see Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla.3d DCA 1974) (Barkdull, J., dissenting), cert. denied, 317 So.2d 442 (Fla.1975), I enthusiastically concur in reversal for the reason upon which the court relies.

However, I would also hold, applying the principles recently enunciated in King Pest Control v. Binger, 379 So.2d 660 (Fla.4th DCA 1980), that the trial judge erred in declining to admit the photographs in question, which irrefutably demonstrated that the accident could not have occurred as the plaintiff testified.

      . As a practical matter, the jury was made fully aware of the fact that there was a discrepancy between the plaintiffs description of the shape of the subject valves and that of the defendants. Two of the defendants’ witnesses testified to the octagonal configuration of the valves, while referring to a diagram of octagonal valves on a blackboard throughout their testimony, and one identified certain physical evidence as a “reasonable facsimile” of the valve-flange assembly.

      . The exact comments were: “There is a saying in the Bible, there is a story about a man named Job, who suffered from many plagues. He suffered from all these terrible things that his faith and honesty were tested. If anybody has been plagued it is Lamy Martial. He has been plagued by having his son brought before his eyes and seeing him shot to death. 1 went to Vietnam and I thought I had seen it all.”

      . Defense counsel strongly objected to the remarks as prejudicial and having “absolutely nothing to do with this litigation.” The trial court, however, overruled the objection and denied the subsequent motion for mistrial.


text:
    Pedro A. CELIN and Marta Mallol De Celin, his wife, Appellants, v. SEARS, ROEBUCK & CO., Appellee.
    No. 79-1040.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Rehearing Denied March 25, 1980.
    Wolfson & Diamond and Richard A. Grossman, Miami Beach, for appellants.

      Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Appellants appeal from a summary judgment in favor of appellee in a slip and fall action. The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by movants for summary judgment. Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1974); Gizzard v. Colonial Stores, Inc., 330 So.2d 768 (Fla. 1st DCA 1976); Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla. 3d DCA 1972).

Reversed and remanded for further proceedings.


text:
    Reginald TONEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-336/T2-11.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Milton M. Ferrell, Jr. and Arthur C. Massey, Jr. of Ferrell & Ferrell, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Woodward v. State, 379 So.2d 664 (Fla. 5th DCA 1980).

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.


text:
    Mike CULLISON, Appellant, v. STATE of Florida, Appellee.
    No. 79-337/T2-12.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Rehearing Denied March 7, 1980.
    Milton M. Ferrell, Jr. and Arthur C. Massey, Jr., of Ferrell & Ferrell, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Woodward v. State, 379 So.2d 664 (Fla. 5th DCA 1980).

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.


text:
    Jeffrey Allan BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-339/T2-14.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.

      Milton M. Ferrell, Jr. and Arthur C. Massey, Jr., of Ferrell & Ferrell, Miami, > for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Woodward v. State, 379 So.2d 664 (Fla. 5th DCA 1980).

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.


text:
    Evelyn Allene HAMBLEN, Appellant, v. Clark Gene HAMBLEN, Appellee.
    No. 79-1075.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1980.
    Rehearing Denied March 12, 1980.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appellant.
    John L. Dicks and Raymond A. Alley, Jr., of Trinkle & Redman, P. A., Brandon, for appellee.
   PER CURIAM.

Appellant wife challenges the terms of a judgment of dissolution of marriage, alleging the awards of alimony and child support to be inadequate.

The parties married in 1956 when appellant was fifteen years old and appellee nineteen. Mrs. Hamblen never obtained a high school education. During the marriage, appellant has worked only for brief periods as a nurse’s aide and grocery cashier, acting as a homemaker and raising the parties’ three children. She has no income currently, is in poor health and lists expenses of $450.00 weekly in her financial affidavit.

Appellee has had the same employer at all relevant times, and currently has a gross income of $562.00 weekly as director of a regional bakery plant. His employer also provides for him work clothes, an automobile and automobile expenses. The court granted dissolution prior to the final hearing on property and alimony issues, and appellee remarried before the final hearing. Appellee noted his expenses only by stating that he simply deposited all of his income into his present wife’s account.

The parties lived in a Plant City home worth between $80,000.00 and $90,000.00, maintained another automobile and had a pool installed. Only one minor child, also in poor health, remains at home with appellant.

The court entered a final judgment awarding appellant use of the marital home until the youngest child becomes of age, custody of the minor child, use of the automobile, ordered that appellee make mortgage payments on the home until the minor child comes of age, and ordered appellee to make payments of $150.00 per month alimony and $100.00 per month child support, and to provide hospitalization coverage on the minor child.

Appellant is a thirty-nine year old woman in poor health, with limited education, and with little or no employment experience. She devoted twenty-three years to her marriage to appellee. Under the terms of the final judgment, appellant and her minor son will have income of $250.00 per month, plus the home. After the child reaches majority in three years, appellant will have only $150.00 per month to live on, plus her one-half interest in the undetermined equity in the house. Appellee has a gross income of $2,435.00 per month.

The primary criteria to be used by a trial judge in determining alimony are the husband’s ability to pay, needs of the wife, and the shared standard of living during the marriage. See Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2d DCA 1976). Below, the award is well below the wife’s needs, the husband’s ability to pay, and the shared standard. We hold the award to be so inadequate as to constitute an abuse of discretion. Hall v. Hall, 363 So.2d 137 (Fla. 2d DCA 1978).

We therefore REVERSE the award of alimony, and REMAND with directions to award higher alimony payments consistent with this opinion. All other aspects of the final judgment are AFFIRMED.

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


author: BOOTH, Judge.

text:
    John L. S. SNEAD, as Executor of the Estate of Kathryn W. Snead, Deceased, et al., for and on behalf of W. W. C., Inc., etc., Appellants, v. UNITED STATES TRUCKING CORPORATION, a corporation, and W. W. C., Inc., a corporation, Appellees.
    No. KK-203.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    Rehearing Denied April 2, 1980.

      Harold B. Wahl, of Wahl & Gabel, Jacksonville, for appellants.
    E. Earle Zehmer and Charles P. Pillans, III, of Bedell, Bedell, Dittmar & Zehmer, •Jacksonville, for appellees.
   BOOTH, Judge.

This is an appeal from a final judgment in a stockholders derivative suit seeking rescission of a written lease extension agreement executed April 13, 1972 between W.W.C., Inc., a Florida corporation, and U. S..Trucking Corporation, a New York corporation. The cause was tried before the judge without a jury, and judgment entered denying the relief prayed for, and dismissing the suit with prejudice.

The following facts, as found by the trial court, are essentially undisputed:

“The agreement in controversy extended for an additional 4V2 years in the term of an existing 30-year lease between the parties which original lease had been executed on September 1, 1966. The lease premises consisted of a warehouse owned by the lessor, W.W.C., Inc., and said warehouse was the only asset of said W.W.C., Inc. There is no controversy concerning the execution of the original 30-year lease or concerning the terms and conditions of that lease. At the time of the negotiations for and the execution of the contested lease extension agreement Rex Wiesenfeld (now deceased) was the owner of 50% of the stock of W.W.C., Inc. and was the President, Treasurer and a Director of said corporation and had also since September of 1966 been employed by U. S. Trucking Corporation as the warehouse manager of said warehouse. At all such times Kathryn Wiesenfeld Snead (who is also now deceased and who was Rex Wiesenfeld’s sister) was the owner of the remaining 50% of the corporate 'stock of W.W.C., Inc. and was the Vice President and a Director of said corporation and Arthur W. Milam as Secretary and a Director of said corporation.
‡ ⅜ * ‡ * ‡
“Subsequent to the execution of the original lease the said Rex Wiesenfeld (now deceased) negotiated with United States Trucking Corporation concerning a lease to that company of another warehouse which Rex proposed to construct across the street from the W.W.C., Inc. warehouse. Pursuant to those negotiations Rex formed a new corporation (Zorex, Inc.), became an officer, director and stockholder of that corporation and that corporation took title to real property across the street from the W.W.C., Inc. warehouse and constructed thereon another warehouse which was leased to United States Trucking Corporation for a 30-year term expiring February 28, 2001. This lease also imposed upon the lessee the obligation to pay, in addition to the specified rentals all taxes, insurance and maintenance on the demised premises, but the rentals under the Zorex lease compute to approximately 74 cents per square foot as compared to approximately 38 cents per square foot in the W.W.C., Inc. lease. Kathryn Wiesenfeld Snead (now deceased) was' not a stockholder, officer or director in Zorex, Inc. and was not consulted concerning the business of that corporation.
“The lease extension agreement of the W.W.C., Inc. lease, which is here in controversy, extends the term of the W.W.C., Inc. lease so that it will expire on February 28, 2001 and coincide with the expiration date of the Zorex lease. Kathryn Wiesenfeld Snead (now deceased) was not consulted concerning the extension of the W.W.C., Inc. lease, was not advised of any negotiations concerning such extension, and did not learn of the lease extension agreement until shortly before Rex Wiesenfeld’s death on August 12, 1974, over two years after the lease extension agreement had been executed.
♦ * * * * *
“Arthur W. Milam, who signed the contested W.W.C., Inc. lease extension agreement as the Secretary of W.W.C., Inc., is an attorney who represented W.W.C., Inc. on legal matter and also acted as an officer (Secretary) and a director of that company. At all times during the negotiation for and execution of both the Zorex lease and the W.W.C., Inc. lease extension agreement Mr. Milam was also an officer and director of Zorex, Inc. For some time prior to the negotiations for and execution of the W.W.C., Inc. lease extension agreement, the said Arthur W. Mi-lam had performed legal services in the Jacksonville area for United States Trucking Company on a “case by case” basis and not on a regular retainer basis.
* * * * * *
“At all times during the negotiations with United States Trucking Company for the execution of the Zorex lease and at the time of executing that lease, the said Rex Wiesenfeld was an officer, director and a stockholder of Zorex, Inc. and was also employed on a salary basis by United States Trucking Company as the warehouse manager of the W.W.C., Inc. warehouse, and was so employed at all times during the negotiations for and the execution of the W.W.C., Inc. lease extension agreement which is here in controversy. Rex Wiesenfeld signed the contested W.W.C., Inc. lease extension agreement as President of W.W.C., Inc.”

Under the foregoing facts, as found by the trial court, Wiesenfeld was: (1) owner of 50 percent of the stock of W.W.C., Inc.; an officer and director of W.W.C., Inc.; (2) salaried employee of U. S. Trucking Company; and (3) officer, director and stockholder of Zorex, Inc. In April of 1972 Wiesenfeld executed a lease extension agreement extending the existing lease on the W.W.C. warehouse (the sole asset of that corporation) at 38 cents per square foot (the same rental as under the 1966 original lease). The term of the lease extension is to commence in 1996 and expire on February 28, 2001, the same date as the expiration of the lease on the warehouse owned by Zorex, which lease paid 74 cents per square foot. Both léases were identical triple-net leases except for the discrepancies in the amount of rental. The warehouses were located across the street from each other, and the trial court further found that “the fair rental value of the W.W.C., Inc. warehouse was equal to that of the Zorex, Inc. warehouse across the street . . . ”

It is also undisputed, as found by the trial court, that one Arthur W. Milam, who signed the lease extension as secretary of W.W.C., Inc., was: (1) officer and director of W.W.C., Inc.; (2) officer and director of Zorex, Inc.; and (3) attorney in the Jacksonville area for U. S. Trucking, though he testified that his representation of U. S. Trucking was only on a case-by-case, rather than a retainer, basis.

Based on the facts, the trial court concluded:

1. There was no conflict of interest on the part of Mr. Milam, who “was acting solely on behalf of W.W.C., Inc. and free from any undue influence or pressure on the part of U. S. Trucking.”

2. That “with reference to Rex Wiesen-feld’s ‘triple role’ as (1) local warehouse manager for U. S. Trucking Company of the W.W.C., Inc. warehouse, (2) as president and a director of W.W.C., Inc. and (3) as an officer and director of Zorex, Inc., there has been no showing that any undue influence whatever was exerted by U. S. Trucking Company to cause Wiesenfeld to execute the lease extension agreement.”

3. That the rental at 38 cents per square foot of the W.W.C. warehouse as opposed to the 74 cents per square foot of the Zorex warehouse across the street was below fair rental value, but was an exercise of “business judgment” and “continued [a] fair return on investment” to W.W.C. stockholders.

4.That the lease extension “was not detrimental” to W.W.C or its stockholders and that “the plaintiff has failed to prove that such action was taken or induced as the result of fraud, deceit, overreaching or any other improper motive on the part of either Rex Wiesenfeld (now deceased), Arthur W. Milam or U.S. Trucking Company.”

It is not the function of the Appellate Court to retry the facts as found by the trial court sitting without a jury. The trial court’s order, however, fails to consider the traditional principles of law applicable where persons occupying a fiduciary relationship enter into a transaction involving property intrusted to their care under circumstances of conflicting self-interest. The trial court’s order does not consider: (1) the fiduciary duty owed by Wiesenfeld and Mi-lam to W.W.C., Inc.; and (2) the principles of rescission applicable to a third party receiving the benefit in other than an arms-length transaction. It is not necessary that actual fraud, misrepresentation or unfairness of the transaction be established in such circumstances. The transaction is voidable at the option of the party to whom the fiduciary duty is owed.

The relationship of a director and of an officer to the corporation and its stockholders is that of a fiduciary. Further aspects of this universally accepted rule are stated in treatises as follows:

“A director’s duties being trust duties or in the nature of the duties of a trustee toward his cestui que trust, his acts are subject to be tested by the rules governing he relation of a trustee to his cestui que trust. The duties result from the nature of the employment, and without any stipulation to that effect. He is bound to act with fidelity, the utmost good faith, and with his private and personal interests subordinated to his trust duty whenever the two come in conflict. Courts of equity must enforce strict compliance with these rules.”
“A director cannot place himself in a position where his individual interest clashes with his duty to his corporation, and there is authority that equity will grant relief where it appears that directors have made in behalf of the corporation contracts which favor their personal interests.
“Actual injury is not the principle upon which the law proceeds in condemning such transactions. Fidelity in the agent is what is aimed at, and as a means of securing it the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. Although the contractors may, as members of the board, have acted honestly and solely with reference to the corporate interest, yet, if they have acted otherwise, they occupy a position which puts it in their power to conceal the evidence of the facts and to defy detection. If, therefore, such transactions were to be held valid until shown to be fraudulent or corrupt, the result, as a general rule, would be that they must be enforced in spite of fraud or corruption.”
“If a third person joins with a corporate officer in dealing with the corporation, with knowledge that he is such officer, the contract may be set aside as to him as well as the corporate officer, and cannot be enforced by either party thereto because they are in pari delicto.”

It is clear that these rules apply even without the degree of inadequacy of compensation here and disparity between the rental of the substantially identical warehouses. The trial court in the instant case was unable to make a finding that the transaction was for adequate compensation. Instead, the court rationalized that the lease extension was “not detrimental” to W.W.C. and its stockholders because it simply “continued the same return” as that agreed to in 1966. The court further rationalized that the owner of the older warehouse needed only half as much rental to recoup the investment and this was an exercise of “business judgment.” This opinion is particularly inappropriate in a derivative suit where complaining stockholders were not informed, and did not have the opportunity to exercise “business judgment” to accept half the rentals received across the street. Because this was not an arms-length transaction, there was no enforcement of W.W.C.’s bargaining position under the 1966 lease which gave U. S. Trucking an option to extend for ten years but at a higher rental rate, allowing for inflation.

The question remains as to whether Florida Statutes, § 692.01, as amended effective January 1, 1972, precludes rescission of this transaction. That statute, in effect on the date of the formal execution of the lease here, provides:

Fla.Stat. § 692.01: “Any corporation may execute instruments conveying, mortgaging or affecting any interest in its lands by instruments sealed with the common or corporate seal and signed in its name by its president or any vice-president or chief executive officer. ... No corporate resolution need be recorded to evidence the authority of the person executing the deed, mortgage, or other instrument for the corporation, and an instrument so executed shall be valid whether or not the officer signing for the corporation was authorized to do so by the board of directors in the absence of fraud in the transaction by the person receiving it. In cases of fraud, subsequent transactions with good faith purchasers for value and without notice of the fraud shall be valid and binding on the corporation.”

The clear intent and purpose of Florida Statutes, Section 692.01, as amended 1972, is to allow third parties without knowledge of intracorporate disputes, fraud or misrepresentations, to enter into business transactions of the type specified by the statute with confidence as to the transaction’s validity and without the need to verify the actual authority of the officer executing the agreement. The statute was not intended to permit a “raid” on corporate assets and breach of fiduciary duties where no bona fide third party purchaser is involved.

We further note a substantial question here as to whether the agreement between U. S. Trucking and Wiesenfeld preexisted the effective date of the statute, January 1, 1972. The Zorex lease was executed March 20, 1970; and, on the same day, the president of U. S. Trucking wrote the following letter to Wiesenfeld, as president of W.W.C., Inc.:

“As you know, the undersigned has today executed a lease (the ‘New Lease’) with Zorex, Inc., covering premises on the south line of West 33rd Street, Jacksonville, Florida, for an original term of 30 years, to commence on completion of the construction of a warehouse building and other improvements. It is our desire that both leases have the same expiration date, and you have indicated a willingness to accommodate such desire. Accordingly, it is understood and agreed between us that promptly following the ascertainment of the commencement date of the New Lease, you will execute and deliver to the undersigned an agreement extending the original term of the 1966 Lease [W.W.C. lease] so that it will have the same expiration date as the New Lease [Zorex lease].” (emphasis supplied)

Thereafter, the Zorex warehouse was completed, and that lease became effective on March 28, 1971, with occupancy by U. S. Trucking. In compliance with the “understanding” in the above-quoted letter, the lease extension agreement was drafted in 1971, as appears from the typed documents of record here. Formal execution of the lease extension was delayed until the following year, after the effective date of § 692.01. The date of formal execution is of little consequence, however, since arrangements had been made between U. S. Trucking and Wiesenfeld. and agreement reached at least a year previously.

The trial court found that “from a general business standpoint” U. S. Trucking wanted the W.W.C. lease extended but that the extension was not “a condition insisted upon” by U. S. Trucking. It is not necessary that there be evidence that U. S. Trucking “insisted” on the W.W.C. lease extension in order to go through with the Zorex lease. The record here and the trial court’s findings establish that the transactions were inter-related. Wiesenfeld and Zorex, Inc. secured a favorable thirty-year lease of the Zorex warehouse by “throwing in” the four and one-half year extension at less than fair rental of the W.W.C. warehouse. Based on this rather overwhelming evidence, the trial court was unable to make the finding that the W.W.C. lease extension was an arms-length transaction, or that U. S. Trucking was a bona fide purchaser. The lease extension is therefore voidable at the election of W.W.C., Inc.

Accordingly, the judgment below is REVERSED and cause remanded for proceedings consistent herewith.

MELVIN, WOODROW M. and VANN, HAROLD R., Associate Judges, concur.

      . Triple-net lease: The lessee is obligated to pay all taxes, insurance, costs and maintenance on the demised premises.

      . Testimony of Arthur Milam (T. 11):
      “Q Have you and your firm, since 1966, been the local Jacksonville attorney for U. S. Trucking for whatever business they had in Jacksonville for local
      “A As far as I know, it is true.”

      . 19 C.J.S. Corporations § 761, at 103, 107.

      . 19 C.J.S. Corporations § 761, at 105, 106; Thompson on Corporations, § 1328, at 799 (3rd ed. 1927):
      “No principle in the law of corporations is founded on sounder reasons, or more surely settled, than the principle that the directors, trustees, or other officers of a corporation, who are intrusted with its interests, and occupy a fiduciary relation to it, will not be allowed to contract with the corporation, directly or indirectly, or to sell property to it or purchase property from it, where they act both for the corporation and for themselves. In such a case, the transaction is, at the very least, voidable at the option of the corporation; and it may be avoided and set aside, or affirmed and any profits recovered, without proof of actual fraud or of actual injury to the corporation.
      * * * * * *
      “In purchasing or selling property he cannot reserve a benefit or reap any profit to himself or a firm with which he may be connected without an abuse of the trust and confidence reposed in him by the corporation. The law will enforce fidelity on the part of the person who acts for others, by imposing upon him a disability either partial or complete, to deal in his own behalf or for his own private interests or profit in respect to a matter involving such trust or confidence.”

      . 19 Am.Jur.2d, Corporations, § 1288, at 695; 3 Fletcher, Cyclopedia, Corporations, § 926, at 394.

      . 3 Fletcher Cyclopedia, Corporations, § 947, at 432; 19 Am.Jur.2d Corporations, § 1290.


text:
    Whipple Van Ness JONES, Jr., Appellant, v. Sally F. COCKAYNE, formerly Sally F. Jones, Appellee.
    No. OO-224.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    Rehearing Denied April 2, 1980.
    Jean Laramore of Oertel & Laramore, P. A., Tallahassee, for appellant.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellee.
   PER CURIAM.

In the case below, appellee successfully sought enforcement of a property settlement incorporated into a prior decree which divorced the parties. The trial judge awarded the appellee $750 for attorney’s fees, to be paid by appellant.

Appellant argues that appellee, having failed at the trial below to introduce any evidence as to her inability to pay her attorney’s fees, is not entitled to an award of attorney’s fees. We find no abuse of discretion by the trial court in the attorney’s fee award. See Canakaris v. Canakaris (Fla.1980), Supreme Court Case No. 54,124, opinion filed January 31,1980.

Appellee/cross-appellant contends on cross-appeal that the trial court awarded the wife an attorney’s fee which is less than a reasonable fee for the services of her attorney. We find no abuse of discretion as to the fee awarded.

AFFIRMED.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


text:
    Sammie FOSTER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-23.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied March 26, 1980.

      Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE, F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The defendant Sammie Foster pled nolo contendere to an information charging him with robbery, aggravated assault, carrying a concealed firearm, possession of a firearm by a convicted felon while engaged in a criminal offense and resisting an officer without violence. He reserved the right to appeal the denial of his motion for discharge pursuant to the speedy trial rule.

The defendant was taken into custody on April 1, 1978. After arraignment and before trial, the State moved to extend the time for speedy trial. The motion was made on July 13, 1978, and alleged the unavailability of a witness. Judge Paul Baker granted^, the motion and signed an order which stated:

“ORDERED that the foregoing Motion is granted and the period of time established by the Florida Rule of Criminal Procedure 3.191 for trial is extended to and including_”

The judge did not fill in a date at the end of the sentence quoted.

The defendant argues that Judge Baker extended the speedy trial time only until November 27 and announced that the case must be tried at that time or dismissed. There is no record of Judge Baker’s remarks. The State conceded at the argument on the motion for discharge that Judge Baker had intended to make November 27 the last day of the extension.

The motion for a discharge was heard before another judge because of Judge Baker’s unfortunate illness from which he subsequently died. The court denied the motion for discharge.

We affirm. The allegation that the speedy trial time was extended to a day certain on which the defendant must be tried or discharged is not supported by the record. It does not appear that this case was, set on the trial docket for a day certain. If the formal order had been completed with the date that both attorneys remembered (November 27th), the failure to try the defendant on that day would not have resulted in his discharge because there remained a portion of the 180 days allowed by the rule. The order extending the time tolled the running of the speedy trial period. See the legal principle in Mullin v. State, 307 So.2d 829 (Fla. 3d DCA 1974); and Esperti v. State, 276 So.2d 58, 64 (Fla. 2d DCA 1973). Between April 1 and July 13, 102 days expired. On November 27th, 78 days remained. Defendant pled nolo contendere on November 29th.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my judgment, either way this case is analyzed, the appellant was entitled to be discharged under the speedy trial rule when his trial was not commenced on or before November 27, 1978.

(a) If the only extension of the speedy trial time is that contained in the uncompleted “order,” it seems clear that such an order, which sets no date at all by which the defendant must be tried, is not in compliance with Fla.R.Crim.P. 3.191(d)(2) and must be regarded as entirely ineffective. Cf. State v. Williams, 287 So.2d 415 (Fla. 2d DCA 1973). Under this view, the speedy trial time ran when the unextended 180-day period after the defendant’s arrest expired on September 28.

(b) If, as seems more appropriate and as the state attorney and both trial judges believed, the record is properly regarded as reflecting a specific extension to November 27, Foster was required to be tried before the end of that day. This is so because the order of extension under Fla.R.Crim.P. 3.191(d)(2) did just that — as the rule clearly provides, it “extended” the speedy trial time until that date. Respectfully, I find nothing in the rule or in the cases cited by the majority to support its conclusion that the speedy trial time was merely “tolled” during the pertinent period.

      . “MR. SIEGEL: . Judge Baker specifically extended Speedies, I believe, until November 27th. Now it is November 29th. The problem arose obviously from the judicial seminar. It is all mixed up. Apparently it was never picked up by me. We ask that the Speedies be continued. We have a witness in the hospital and also this judicial seminar with Judge Baker not aware of it, I ask for extenuating circumstances, that Speedies should be extended.”

      . “THE COURT: Motion for discharge is denied. The Court finds that in cases in Judge Baker’s division there have been exceptional circumstances. In the intervening period between July when this case was set specially by Judge Baker for November 27th, Judge Baker has had some serious problems with an appendectomy. Judge Baker is still unable, unavailable to be present. I cannot tell when Judge Baker will be back, permanently back on the Bench. I am not going to discharge you. You may get discharged—
      “MR. KERSHAW: We hope to, Your Honor.

        “THE COURT: —in the District Court of Appeal, but I am not going to discharge Defendants on cases where Judge Baker’s illness has caused confusion and has caused a problem. I will not do it.”


text:
    Robert H. ANDERSON and/or Out Island Charters, Inc., Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 79-361.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied March 24, 1980.

      A. John Goshgarian and Howard J. Hoch-man, Miami, for appellant.
    Jim Smith, Atty. Gen., and William D. Townsend, Asst. Atty. Gen., Tallahassee, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This case is before us on appeal from a final agency action of the Department of Revenue of the State of Florida, which upheld a proposed tax assessment to be enforced against the appellants herein, Robert H. Anderson and Out Island Charters, Inc. The underlying issue which we must determine is whether an agency rule requiring a certificate of registration by the purchasers at the time of the sale of some sailing vessels, in order to be applicable for a statutory sales tax exemption, may be sustained upon the facts as found by the hearing examiner.

The parties are agreed that there is no dispute concerning the facts on this appeal, and each of them has proceeded in argument from the findings of fact included in the examiner’s recommended order.

FINDINGS OF FACT

“1. Petitioner Out Island Charters, Inc., Miami, Florida, is a Florida corporation engaged in the business of selling, leasing, repairing and chartering yachts in South Florida. Robert H. Anderson is president of the firm. During the tax period in question, i. e., December 1, 1973 to November 30,1976, Petitioner sold various sailing vessels and made repairs thereon. The purchasers individually entered into a “Yacht Charter Management Agreement” with Petitioner under which the latter agreed to act as the owners’ agent to obtain charters of the boats from third parties, and to maintain, repair, and dock the vessels at the owners’ expense. The agreement provided that Petitioner would receive a percentage of the gross bareboat charter fee. It also contained a provision that the owner could use his vessel at any time without cost provided that no charters had been booked for the particular time period. Although this was a standard provision in all of the contracts, some of the owners deleted it prior to execution of the agreement. In most cases, the owners used their vessels occasionally for the purpose of testing equipment and performing routine maintenance and repairs. At such times, some of them were accompanied by their wives, mechanics, or friends who assisted in handling the vessels or performing the routine maintenance functions. They did not use the vessels for purely personal pleasure trips.
“When the vessels were purchased, sales tax under Chapter 212, Florida Statutes, was neither collected from the buyers by the Petitioner nor otherwise paid to the state. Sales tax was not paid on various equipment purchases, repair parts, dockage, or other expenses incident to the management and maintenance of the vessels. However, sales tax was collected by Petitioner from the third parties who rented the vessels except for a few inadvertent omissions. At the time Petitioner sold the vessels, none of the purchasers had applied for nor received from Respondent a certificate of registration to engage in or conduct business as a ‘dealer’ in yacht chartering under Chapter 212, Florida Statutes, nor had they provided Petitioner with a certificate of resale. Anderson believed the transactions to be exempt from sales tax because the vessels were purchased for rental purposes, and he was unaware that registration as a dealer and submission of a resale certificate were required to establish such an exemption.
“2. Pursuant to an audit of Petitioner’s business by Respondent’s tax examiner, a proposed assessment of sales tax, penalties, and interest was issued to Petitioner in the total amount of $28,790.76. The parties met at an informal conference on March 29,1977, and, as a result of adjustments at that time, a revised Notice of Proposed Assessment was issued on May 19,1977, showing a total sum due of $26,646.91. Petitioner thereafter requested an administrative hearing in the matter.
“3. In March, 1977, Petitioner’s counsel advised the various purchasers of the pending tax audit and requested that they either pay the sales tax if they had used the boats for personal business, or, if the boats had been exclusively used for chartering purposes, that they execute affidavits to that effect, together with applications for certificate of registration as dealers and blanket certificates of resale. Most of the purchasers returned the executed documents and were later registered with the Respondent as dealers in the chartering business.
“4. In one particular transaction wherein James Morgan purchased a vessel from Petitioner, Anderson testified that the vessel was removed from Florida to Tennessee where Morgan lived on the day after full payment had been made under the contract. Anderson, however, did not know if Morgan provided him with an affidavit for exemption of the boat by removal from the state, and no documentary evidence concerning the transaction was presented by Petitioner at the hearing.
“5. In another transaction, Anderson purchased a vessel in 1973 from Coastal Sailing Services, Inc., of Tallahassee, Florida, and paid sales tax in the amount of $1,027.40. Later, Anderson believed that he was exempt from the payment of tax because he had purchased the vessel solely for rental purposes. He communicated with Respondent’s sales tax bureau through his accountant for information concerning refund procedures. Remus O. Cook, Jr., an examiner in the state sales tax bureau, advised in a letter of August 14, 1974, that a refund from Coastal Sailing Service could be secured if the vessel had been purchased solely for rental purposes, and that such request to the seller should be accompanied by a certificate of sales tax exemption utilizing a form enclosed with the letter. Although the vessel had been purchased by Anderson, the letter made reference to Out Island Charters, Inc. as the buyer and cited its sales tax registration number. Cook testified that it was departmental policy to grant an exemption if tangible personal property was purchased exclusively for rental purposes, even if the purchaser was not registered as a dealer at the time of sale. However, Henry Coe, Jr., Respondent’s Executive Director, testified that registration at or a few days after the time of sale was a prerequisite to exemption in such cases. Anderson proceeded to request the refund from the seller, but the exemption form was executed in the name of Out Island Charters, Inc. He received the refund in 1975. Respondent’s tax examiner assessed this sale in the current proposed tax assessment because he found no documentary evidence that Anderson intended to use the boat for charter purposes when he purchased it, and there was no evidence that Anderson was registered as a dealer at that time or furnished a resale certificate to the seller when it was purchased. No evidence was presented that Anderson had used the boat for personal purposes and he testified that he purchased it solely for rental, but conceded that he had no dealer’s registration number at the time of purchase.
“6. Petitioner conceded at the hearing that the tax computations were correct, but contested liability therefor except for the several instances where sales tax had not been collected on boat rentals.”

The salient conclusion of law made by the Department is as follows:

“Respondent appears to concede that the boat sales would be exempt from tax if they qualified under Rule 12A — 1.71(2) which provides that ‘equipment’ purchased solely for rental purposes is exempt at the time of its acquisition. Although it is indeed questionable if a boat could be construed as ‘equipment’ within the meaning of that rule, it apparently has been the practice of Respondent to exempt such purchases in the past, as evidenced by the testimony of its officials. Respondent, however, contests any such exemption on two grounds: (1) [Found by the Examiner and the Department not to be applicable.] * * * (2) that the purchasers of the vessels were not registered as dealers at the time of purchase and thus petitioner should have collected sales tax on the transactions.
******
“The basic question for determination is whether registration as a dealer and submission of a resale certificate some months after the date of sale, as was done in the transactions under consideration, can relate back and provide exemption for such sales. At the outset, it must be kept in mind that exemptions to taxing statutes are to be strictly construed against the taxpayer. Wanda Marine Corporation v. State Dept. of Revenue, 305 So.2d 65 (Fla. 1st DCA 1974). Although it is apparent that the exempt status of the various boat purchases could have been established if the purchasers had been registered as dealers at the time of sale, no evidence has been submitted by Petitioner that they were then so registered or had otherwise complied with the above provisions of Rule 12A-1.38. In view of such failure of proof, relief cannot be granted from the proposed tax assessment with respect to the sales price of the vessels and the interest and penalties thereon.”

Only the statute can create a tax. A retail sale under Florida law is defined in Section 212.02(3)(a), Florida Statutes (1977):

“ ‘Retail sale’ or a ‘sale at retail’ means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions that may be made in lieu of retail sales or sales at retail. A resale must be in strict compliance with rules and regulations and any dealer making a sale for resale which is not in strict compliance with rules and regulations shall himself be liable for and pay the tax.”

The term “dealer” as used in the foregoing statute is defined in Section 212.06(2), Florida Statutes (1977), as:

“(c) The term ‘dealer’ is further defined to mean every person, as used in this chapter, who sells at retail, or who offers for sale at retail, or who has in his possession for sale at retail, or for use, or consumption, or distribution, or storage to be used or consumed in this state, tangible personal property as defined herein.
“(d) The term ‘dealer’ is further defined to mean any person who hás sold at retail, or used, or consumed, or distributed, or stored for use or consumption in this state, tangible personal property and who cannot prove that the tax levied by this chapter has been paid on the sale at retail, the use, the consumption, the distribution, or the storage of said tangible personal property.
“(e) The term ‘dealer’ is further defined to mean any person, as used in this chapter, who leases or rents tangible personal property, as defined in this chapter, for a consideration, permitting the use or possession of said property without transferring title thereto, except as expressly provided for to the contrary herein.”

The rule which the Department held to disqualify the appellants from the exemption is Florida Admin.Code Rule 12A-1.38, which provides in pertinent part:

“(1) It is the specific legislative intent that each and every sale, admission, use, storage, consumption or rental is taxable under Chapter 212, F.S., unless such sale, admission, use, storage, consumption or rental is specifically exempt. The exempt status of the transaction must be established by the dealer. Unless the dealer shall have taken from the purchaser a certificate to the effect that the property or service was purchased for resale and bearing the name and address of the purchaser and the number of his dealer’s certificate of registration or a certificate bearing the number of his consumer’s exemption certificate, the sale shall be deemed to be a taxable sale at retail.
******
“(3) A dealer shall refuse to accept a resale certificate, except as provided in Rule 12A-1.64(23), and shall collect the tax unless the purchaser has obtained a dealer’s certificate of registration from the Department of Revenue and the number of his dealer’s certificate of registration is stated on the resale certificate.”

The question of whether a taxpayer may avoid the assessment of a tax by showing that the use was for an exempt purpose when the taxpayer failed to file the required dealer’s certificate prior to the sale has not been determined in Florida, so far as we have been able to discover. In the situation reflected by the finding of the examiner in this case, we hold that it would be grossly unfair not to allow the taxpayer to show the true situation. It must be borne in mind that a tax has been collected from the user in many of the situations covered by this assessment. The department must attempt to avoid double taxation. It is well recognized that “[d]ouble taxation is not only to be avoided, but [also] the intention of the legislature to impose it will not be presumed.” 71 Am.Jur.2d State and Local Taxation § 33 (1973); and see Section 212.12(12), Florida Statutes (1977).

Additionally, the Department of Revenue, as found by the examiner, changed its position with regard to the necessity for the dealer’s certificate during the progress of its determination of the tax due from the sale of the appellants’ boats. This change of position seriously handicapped the appellants in their attempts to satisfy the Department concerning the taxable status of the sales. We hold that the appellants had a right to rely upon the interpretation of the statute as originally set forth. See the principle enunciated in Outdoor Advertising Art v. Florida Department of Transportation, 366 So.2d 114 (Fla. 1st DCA 1979).

We, therefore, reverse the agency action and direct a reassessment of the appellants’ liability in accordance with the views herein set forth.

In this connection, it should be noted that, in this court, the Department has confessed error upon the appellants’ Point Six, which contends that the Department was not authorized to impress the tax against both Robert H. Anderson and Out Island Charters, Inc., without differentiating which of the two owed which particular portion of the assessment.

The order appealed is vacated and the proceeding remanded.


text:
    PARLIAMENT INSURANCE COMPANY, Appellant, v. Johanna J. BRYANT, Appellee.
    No. 79-994.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied March 25, 1980.
    Underwood, Gillis, Karcher, Reinert & Valle and Thomas Trompeter, Miami, for appellant.
    Bailey & Dawes and Sara Sota, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

By this appeal, we address the question of whether the trial court correctly held that Parliament Insurance Company is legally responsible for damages to appellee, Bryant, by virtue of a policy of insurance with Ultra Marine Corporation. Bryant was injured in a boat accident in 1974, and the allegations included in her complaint were that the operator of the boat, an employee of the marine company, was negligent in the operation of the boat while taking Bryant on a “demonstration ride”[] in an effort to sell her the boat. See Ultra Marine Corporation v. Bryant, 375 So.2d 613 (Fla. 3d DCA 1979).

The. marine company’s insurer, Parliament, the appellant herein, contends that there is no insurance coverage in this case; it is asserted that the subject policy was intended to cover the marine company’s premises and accidents occurring thereon, only. Parliament maintains that trial court erred in entering summary final judgment against it on the issue of coverage because of the nature of the policy, the wording of the insuring clause and the specific exclusion contained in the policy (which denies coverage for the operation and use of watercraft away from the insured premises).

A review of the record, with particular attention to the policy itself, reveals that the policy is an “owner’s, landlord’s, and tenant’s” policy. The insuring clause states in pertinent part:

“The company will pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages because of:
“A. bodily injury or
“B. property damage,
“to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance, or use of the insured premises, and all operations necessary or incidental thereto, and the company shall have the right and duty to defend a suit against the insured seeking damages on account of such bodily injury or damage . . . ”

The exclusionary language in the policy reads:

“This insurance does not apply:
“(d) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft, if the bodily injury or property damage occurs away from the insured premise . . .”

The pivotal issue, restated, is whether the boatride, which of necessity occurred away from the insured’s premises, is a covered activity under the policy. We must respond in the negative. The appellee urges that although Parliament admits that by the terms of the policy it was insuring “all operations necessary or incidental” to the business of selling boats, it is attempting to exclude coverage for accidents off the premises involving watercraft in the pursuit of the marine company’s business. Appellee maintains that in order to reconcile what it deems to be conflicting provisions, the court should resolve the inconsistency in favor of the insured, and cites Matthews v. Ranger Insurance Company, 281 So.2d 345 (Fla.1973) and American Manufacturers Mutual Insurance Company v. Horn, 353 So.2d 565 (Fla. 3d DCA 1978). However, a review of the record and applicable caselaw demonstrates that the rule that inconsistencies in insurance contracts are to be construed in favor of the insured applies only when a genuine inconsistency, uncertainty or ambiguity in meaning remains after resort to the ordinary rules of construction, and that the said rule does not allow courts to rewrite insurance contracts. See Excelsior Insurance Company v. Pamona Park Bar & Package Store, 369 So.2d 938 (Fla.1979). We find that the clear and unambiguous language of the exclusion clause works to provide a limitation of coverage— that is, to exclude coverage for situations where the insured was engaged in activities away from the insured’s premises. It is undisputed that the accident occurred miles away from the premises; and also since it is evident that the policy we are examining is a premises liability policy, not a general liability policy, and that the very wording of the policy sets out that the premium base was the 5,000 square feet of land upon which the marine company conducted its business, we see no ambiguity. We believe that the appellee has been attempting to convert the policy from a designated premises policy to a general liability policy covering all activities related to boat sales regardless of where and how they occur. In so doing, the court would have to delete not only the exclusionary (or limitation) clause but also crucial wording used in the insuring clause. See Emmco Insurance Company v. Southern Terminal and Transportation Company, 333 So.2d 80 (Fla. 1st DCA 1976).

The remaining minor points raised by appellant regarding attorneys’ fees and costs need not be reached here, in light of the views expressed above.

As a matter of law the judgment for appellee should be vacated and the cause remanded for entry of judgment for Parliament Insurance Company.

Reversed and remanded.

      . The issue of whether the boatride was for demonstration purposes or was actually the employee’s “frolic” has been hotly disputed throughout the proceedings.


author: SCHWARTZ, Judge. BASKIN, Judge

text:
    Earlene P. BULLARD, Appellant-Cross-Appellee, v. Charles B. BULLARD, Appellee-Cross-Appellant,
    No. 79-1264.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for Earlene P. Bullard.
    Daniel A. Sorrentino, Miami, for Charles D. Bullard.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The wife appeals and the husband cross-appeals from a purported final judgment in a dissolution action. We affirm in part and reverse in part.

The parties were married in 1964 and separated in 1977. They had no children. Mrs. Bullard is a teacher, and earns approximately $18,000 a year; Mr. Bullard earns slightly more than that as an employee of the Dade County Community Action Agency. Although neither brought any property into the marriage, by the time of the dissolution they owned, all by the entireties, the marital home and its furnishings, two cemetery lots, a parcel of real property acquired from Mrs. Bullard’s aunt, and a 1974 Pontiac automobile. Aside from providing for a credit of half of those mortgage payments on the home which had been entirely made by the wife after Mr. Bullard departed, the trial judge left the parties as he found them. He denied the wife’s claim for lump sum alimony and for the imposition of a trust or special equities in the husband’s interest in the jointly held properties, thus providing that the Bullards had simply become tenants in common as to each of them. The wife appeals from these rulings. The husband’s cross-appeal claims error in the determination below to assess attorney’s fees against the husband, and in the lower court’s direction that a separate proceeding be filed to partition the real property held in common.

I

As to the wife’s appeal, we first reject her claim to a “special equity” in Mr. Bullard’s record interests in the marital home and furniture and in the cemetery lots. These assets were bought and paid for completely from the earnings of the parties during the course of the marriage. The fact that the wife may have made larger contributions than the husband does not create an adjudicable “special equity.” At the least, it cannot be said that the trial judge abused his discretion in determining that none existed as to these items. Ingram v. Ingram, 379 So.2d 955 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976); Smith v. Smith, 378 So.2d 11 (Fla.3d DCA 1979); Fiedler v. Fiedler, 375 So.2d 1119 (Fla.2d DCA 1979); see Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Canakaris v. Canakaris (Fla.1980) (Case no. 54,124, opinion filed, January 31, 1980).

Because of the particular circumstances under which it was acquired, we reach a contrary conclusion concerning the realty formerly owned by Mrs. Bullard’s aunt, located at 1084 N.W. 74th Street, Miami. Prior to the transfer the aunt had agreed to convey the property if a mortgage and certain liens were satisfied. Mrs. Bullard in fact paid these obligations out of her own earnings. Perhaps more importantly, it was also shown that Mrs. Bullard and her husband had agreed that the property was to be held in her name alone. Only as a “favor,” he undertook the paperwork involved in securing the transfer from her aunt, but the deeds he had executed were in both names. Mrs. Bullard immediately and continuously protested and Mr. Bullard immediately and repeatedly promised to have the title transferred to her. He did not keep those promises. On this record, we think it clear that Mrs. Bullard must be deemed the sole owner of the N.W. 74th Street property.

Even though the respective rights of husband and wife to jointly held property are involved, we do not confine our analysis to the question of whether the wife had a “special equity” in Mr: Bullard’s interest in this parcel. In Duncan v. Duncan, supra, the supreme court stated that

“[i]n its true sense, a ‘special equity’ is a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties.”

Under this doctrine, as we have noted in considering the home and cemetery lots, the fact that Mrs. Bullard provided the only monetary consideration for the acquisition of the aunt’s property would not alone be sufficient to grant her sole title as a matter of law. This is so because these funds came from her earnings during coverture, which is not a “source clearly unconnected with the marital relationship.” Ball v. Ball, supra, at 335 So.2d 7. The additional showing, however, that Mr. Bullard agreed to act on behalf of his wife in transferring the title solely to her, and that he breached promises, made both before and after the aunt’s conveyance, to effect that transfer, requires a different result. As has long been held, these facts give rise to a resulting trust in favor of Mrs. Bullard in Mr. Bullard’s interest in the property. Boswell v. Cunningham, 32 Fla. 277, 13 So. 354 (1893); 33 Fla.Jur.Trusts §§ 55-56 (1960); cf. Safford v. McCaskill, 157 Fla. 133, 25 So.2d 210 (1946). The rule simply stated in Jackson v. Jackson, 80 Fla. 557, 86 So. 510, 512 (1920) directly applies:

“An agent who invests his principal’s money in real estate with the latter’s knowledge, but takes the title in himself without the consent of his principal, a resulting trust in favor of the principal will arise.”

It is true that so-called presumptions of resulting trust arising from the monetary contribution of one spouse to property taken either in both names or in the name of the other spouse have been abandoned in favor of the “special equity” approach adopted in Ball v. Ball, supra; at 355 So.2d 8, nn.8-10. But there is nothing either in that decision or in any other which indicates that the doctrine does not apply when the facts warrant it, merely because the resulting trustee and the resulting beneficiary happen to have been married. After remand, therefore, the lower court shall enter judgment declaring Mrs. Bullard the sole owner of the N.W. 74th Street property.

Finally, the record shows that the 1974 Pontiac, although titled in both names, was being used and had been paid for exclusively by Mrs. Bullard. Since she had a demonstrated need for the car and Mr. Bul-lard, who owns his own, has the obvious ability to provide it without detriment to himself, we hold that it was an abuse of discretion to fail to award his interest in the vehicle to Mrs. Bullard as lump sum alimony. Canakaris v. Canakaris, supra.

II

Turning to the husband’s cross-appeal, we conclude that both points he raises are well-taken.

In the Canakaris case, supra, the court reiterated the rule applicable to the lower court’s award of attorney’s fees to the wife:

The final issue presented to us is whether the award of the wife’s attorney’s fees, to be determined at a subsequent hearing, was error. In Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976), we cited Mertz v. Mertz, 287 So.2d 691 (Fla.2 DCA 1973), as correctly stating that the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel.

In this case, unlike Canakaris, the financial situations of the parties are virtually identical. While Mr. Bullard earns somewhat more than his ex-wife, she has more in savings and the effect of the order below was to create an almost exact equality in their other capital assets. Our determination, supra, that Mrs. Bullard is the sole owner of the N.W. 74th Street property actually effects a further imbalance in her favor. Thus, there is no basis for the requirement that the husband pay or contribute to Mrs. Bullard’s attorney’s fees, and that provision must be stricken from the final judgment. See also, e. g., Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978), and cases cited.

It was also error to require the husband to file a separate action for partition of the parties’ home. Bullard’s amended complaint properly prayed for partition under Sec. 64.041, Fla.Stat. (1977), and Mrs. Bullard did not contest that application. The final judgment should therefore itself order the partition of the marital domicile. Pantuso v. Pantuso, 335 So.2d 361 (Fla.2d DCA 1976); see Carlsen v. Carlsen, 346 So.2d 132 (Fla.2d DCA 1977); Rankin v. Rankin, 258 So.2d 489 (Fla.2d DCA 1972).

The order under review is affirmed in part and reversed in part and the cause remanded for entry of an appropriate revised final judgment in accordance with the views and holdings stated in this opinion.

Affirmed in part, reversed in part and remanded.

BASKIN, Judge

(concurring in part and dissenting in part).

With regard to the husband’s cross-appeal, I disagree with the reversal of the award of attorney’s fees to the wife. The award of the N.W. 74th Street property may increase the amount of the wife’s assets, but it does not, however, create liquid assets readily available to her. Valparaiso Bank & Trust Company v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977).

The trial judge properly exercised his discretion in awarding the wife attorney’s fees based upon the record before him. Valparaiso Bank & Trust Company v. Sims, supra.

      . While the order below was styled a “final judgment of dissolution of marriage” and found that the parties’ marriage was irretrievably broken, it does not contain any formal language actually dissolving the marriage. Obviously, this defect must be corrected upon remand.

      . Mrs. Bullard never claimed permanent periodic alimony and withdrew her request for periodic rehabilitative alimony at the trial.

      . The trial judge also ordered an IRS refund attributed to the parties’ 1976 joint return to be divided equally. We find no error in this ruling.

      . There was no request or need to partition the cemetery lots. As a result of our holding that Mr. Bullard has no interest in the N.W. 74th Street property, the request for partition of that parcel has become moot.


author: MOORE, Judge.

text:
    Scott Bryant JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1366.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1980.
    Rehearing Denied April 2, 1980.

      Geoffrey C. Fleck of Kogen & Kogan, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mary E. Marsden and Russell S. Bohn, Asst. At-tys. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

In this appeal from a conviction of second degree murder, appellant asserts that the trial court erred in admitting hearsay evidence. We reverse.

While on his way to a rock concert, appellant with his' sister and others as passengers, drove his vehicle on the right hand shoulder of a congested highway in order to pass slow moving traffic. The victim, who was traveling in the same direction, blocked appellant’s progress. The two drivers exited their vehicles and an altercation between them ensued. During this altercation, the appellant stabbed the victim, who was removed from the scene by ambulance and subsequently died from his injuries.

Upon cross-examination of a defense witness, the trial court permitted the State to elicit, as part of the res gestae, a statement made to her by the appellant’s sister. The witness, a girlfriend of the victim, testified that appellant’s sister told her: “I’m sorry, I know it’s my brother’s fault.” This statement was allegedly made while the two girls were following the ambulance to the hospital in another vehicle.

Statements made by third persons not produced as witnesses are usually objectionable as hearsay. Halfrich v. State, 122 Fla. 375, 165 So. 285 (Fla.1936). This is particularly true when the statements are themselves conclusions or opinions of the declarant. Mitchum v. State, 56 Fla. 71, 47 So. 815 (Fla.1908). As this Court stated in Elmore v. State, 291 So.2d 617 (Fla. 4th DCA 1974), the rule is not without its exceptions. Where the statement was (1) spontaneous, with all that term legally embraces, (2) made by one who witnessed the act concerning which the statement was made, (3) made at the scene of the homicide in the sight or hearing of the accused or victim, and (4) relevant to a material issue in the case, it is admissible as part of the res gestae. Id.

We find the instant statement fails to meet these criteria. The record does not reflect whether the declarant witnessed the altercation nor does it reflect how soon after the altercation the statement was made. Obviously, it was not made at the scene of the homicide in the sight or hearing of the accused or victim in that the accused had previously left the scene and the victim was at that time being transported to the hospital in an ambulance. The admission of the statement was therefore error. Although we are tempted to view its admission as harmless error, we are compelled to find that it was prejudicial in light of the close question regarding appellant’s plea of self defense. The jury may well have been influenced by the appellant’s own sister’s conclusion in determining guilt.

Accordingly, the conviction is reversed and the cause remanded for a new trial.

BERANEK, J., and WOODROW M. MELVIN, Associate Judge, concur.


text:
    James F. EDWARDS and Joan C. Edwards, Appellant, v. Cloys SMITH and Jeanne Smith, Appellee.
    No. 79-581.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1980.
    Rehearing Denied March 28, 1980.

      Dianne Weaver of Weaver & Weaver, Fort Lauderdale, for appellant.
    Maurice Fixel of Meyer, Leben, Fixel & Cantor, Hollywood, for appellee.
   PER CURIAM.

Appellants seek to reverse a non-final order of the trial court striking their answer and entering judgment for appellees on the issue of liability. Appellants’ answer was stricken for violations of several court orders pertaining to discovery.

We have studied the briefs and portions of the appendix and find adequate support in the record for the trial judge’s action. Put another way, appellants have failed to demonstrate an abuse of discretion.

Accordingly, the order appealed from is affirmed.

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


text:
    The DUBLIN COMPANY and Fidelity and Deposit Company of Maryland, Appellants, v. BRADY SALES, INC., Sea World of Florida, Inc., et al., Appellees.
    No. 78-377/NT4-70.
    District Court of Appeal of Florida, Fifth District.
    Feb. 20, 1980.
    Rehearing Denied March 31, 1980.
    Alan S. Becker of Becker, Poliakoff & Sachs, P. A., Miami Beach, for appellants.

      Greg J. Orcutt and R. Elliott Dunn, Jr. of Dixon, Schear, Brown & Lima, Tampa, for appellees.
   PER CURIAM.

This is an appeal by appellant, a subcontractor, from an amended final judgment allowing the appellee, a materialman, to recover $18,960.40, plus interest, on its statutory lien.

Appellants first allege that the trial court committed error in concluding that the materials allegedly delivered by appel-lee were in fact delivered or incorporated in the subject real property. Materialmen are entitled to perfect a mechanic’s lien against' the property “improved” to recover for items which are incorporated into the improvement. § 713.01(6), (Fla.Stat. 1973). Except when the item is specially fabricated, or constitutes normal wastage in the course of construction, or is used in building the improvement, such as tools or equipment, the materials furnished by the lienor must be shown to have been actually incorporated into the improvement. Beautyware Plumbing Supply Co. v. Columbiad Apartments, Inc., 215 So.2d 42 (Fla. 4th DCA 1968).

On direct examination, Mr. Brady, President of appellee Brady Sales, testified that he had actual knowledge from his visits to the job site that a certain portion of the materials were delivered and incorporated into the project. He further testified that the balance of the materials supplied were specially fabricated for the project. He described the materials that were incorporated into the project and explained the basis for his opinion that the other materials were specially fabricated. He also, submitted detailed invoices for all of the materials. On cross-examination, Mr. Brady’s memory was demonstrated to be far from perfect as far as his recollection of viewing all of the items claimed to have been supplied. However, we believe that it was for the trial court to determine the weight and credibility of Brady’s testimony and that while the evidence was marginal, it was sufficient to support the trial court’s judgment.

Appellant next contends that the ap-pellee’s claim of lien should be reduced by $7,154.00, since that figure represents a duplication of billing. Brady alleged in its complaint and subsequently Mr. Brady testified that with appellant’s agreement, Air Guide Corporation had been paid by Brady to perform a portion of its contract with appellant. Air Guide filed a separate claim of lien against appellant. Appellee’s claim of lien as filed and attached to its complaint was for $18,960.40, which included Air Guide's bill. The évidence at trial was undisputed that Brady paid the Air Guide bill. In addition, it was shown that appellant was well aware of the fact that Brady was claiming the Air Guide bill as part of its claim. Appellant made no effort to join Air Guide in the proceedings. Under these circumstances we find no error in including the Air Guide billing in Brady’s recovery.

Appellants finally contend that the trial court erred in finding that a surplus of funds existed out of which appellee could be paid where appellee had filed a late notice to owner. The surplus of funds was found to exist by reason of the payments made by the owner before the filing of the notice of commencement. The trial court’s ruling on this issue is in conformity with this court’s opinion in Wool Wholesale Plumbing Supply, Inc. v. Abdo, 365 So.2d 216 (Fla. 4th DCA 1978).

Accordingly, the judgment of the trial court is hereby affirmed.

DOWNEY, JAMES C., ANSTEAD, HARRY LEE and GLICKSTEIN, HUGH S., Associate Judges, concur.


author: OTT, Judge.

text:
    Winifred HARLOFF, Appellant, v. Roger W. HARLOFF, Appellee.
    No. 79-88.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1980.
    Rehearing Denied March 18, 1980.
    Stephen A. Rappenecker, Gainesville, for appellant.
    Tim H. Warren, Sarasota, for appellee.
   OTT, Judge.

The parties to this action were divorced in 1972. Appellant was awarded alimony of $10 per week plus half of appellee’s annual earnings in excess of $5,000. In 1975, appellant filed a motion to have appellee held in contempt for failure to make payments in accordance with the judgment. In August, 1976 appellee moved to terminate alimony entirely.

The two motions were consolidated for hearing and thereafter the court issued its order (1) terminating alimony as of the date appellee filed his motion, and (2) declaring that he owed appellant $20,000 as of the end of 1975.

Appellant challenges the amount the trial court found due. Specifically, she argues that the trial court erred in failing to (1) take into account appellee’s share of the profits earned by a farming operation he conducted with his new wife, and (2) award any amount of alimony for the year 1976. We agree with both points and accordingly reverse the order in that respect.

Following the divorce appellee’s new wife began a tomato farming operation with one Forrest under the name Sun & Sand Farms. Appellee managed this business at a salary of $150 per week. In 1974, this venture was terminated and appellee’s wife received $66,000. Thereafter, she continued growing tomatoes as a sole proprietor under the name “A & R Farms”. Ap-pellee managed this farming operation at a salary of $200 per week.

The business was very successful. Exact profit figures have not been divulged, but in 1976, for example, 350 acres of tomatoes were harvested at a total cost of $2,000 per acre. The crop was sold to three packing houses, and while receipts from two packers were not produced, the third paid A & R Farms $713,500 for “half to two-thirds” of the crop.

The profits from A & R Farms were used to acquire various properties, both real and personal. Title to everything was taken in the joint names of appellee and his wife. When the business needed operating capital, these assets were sometimes pledged as collateral for bank loans. On at least one occasion appellee cosigned for a $350,000 loan for the business.

The trial court found that appellee and his wife were joint-venturers as to a half interest in Sun & Sand Farms, and accordingly found that appellant was due one-fourth of the $66,000 received when that business was dissolved. As to A & R Farms, however, the court ruled that even if appellee had a joint interest in that business, appellant was not entitled to any of its earnings because she had not sustained her burden of proving accurate profit figures.

We think that the evidence that A & R Farms was a joint venture of appellee and his wife, Angelina, was at least as clear as that concerning Sun & Sand Farms. In addition, the evidence established that A & R Farms earned a profit of at least $246,833 in 1976 alone. The record before us does not indicate that appellee attacked these figures in any way. On the record, therefore, it would appear that appellant is entitled to an additional $61,708. Since the lower court excluded 1976 altogether, we remand the case for retrial of the issue of the profits earned by A & R Farms from the time it began operations until August 27, 1976. That will afford both parties an opportunity to address the point.

We further hold that the court should have determined the amount of alimony due up to the date of termination, August 27, 1976. Perhaps the trial court wanted to keep the question of 1976 alimony open for consideration in other proceedings at which appellant would have an opportunity to cure what the court regarded as a failure of proof. However, it seems to us that the interests of both parties will be better served by resolving all their disputes in this one action.

The portion of the order determining the amount of alimony due appellant is reversed and the case is remanded for further proceedings consistent with this opinion.

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

      . Appellant also makes an oblique attack .on that portion of the order terminating alimony. She does not challenge the merits of the order, but instead confines her argument to the question of the propriety of entertaining appellee’s motion while he was delinquent in alimony payments. We are satisfied that this lies within the discretion of the court and that no abuse thereof has been shown. See Martin v. Martin, 256 So.2d 553 (Fla. 4th DCA 1972) and English v. English, 117 So.2d 559 (Fla. 3d DCA 1960), especially at page 562 under [7],

      . $713,500 less two-thirds of $700,000.


author: SCHEB, Judge.

text:
    Lynne D. HOLLEY, Appellant, v. Charles R. HOLLEY, Appellee.
    No. 79-543.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.
    Rehearing Denied March 13, 1980.

      Lynne D. Holley, pro se.
    Lawrence D. Martin, of Vega, Brown, Nichols, Stanley & Martin, Naples, for ap-pellee.
   SCHEB, Judge.

Appellant, Lynne D. Holley, contends the trial court abused its discretion in denying her claims for alimony and other relief in a dissolution of marriage proceeding. To the extent the trial court failed to award her rehabilitative alimony for a period of time necessary to re-establish herself in the practice of law, we agree and, on that point, reverse.

Appellant and appellee, Charles R. Hol-léy, were married in July 1972. Each has been a member of the Florida Bar for over thirty years and has served in the state judiciary. The husband is 54; the wife, 52. No children were born of the marriage.

After almost six years of marriage, the parties separated in May 1978. The husband petitioned for dissolution and wife counterpetitioned for alimony, attorney’s fees and a sum representing her contributions to her husband’s assets and his career.

During the marriage the husband practiced law in Collier County from a building owned by the wife. He made the mortgage payments and paid taxes, insurance and maintenance expenses on the building. Throughout the marriage the parties lived in a home owned by the wife. The wife left her position as county judge in Collier County in January 1975 after an unsuccessful candidacy for a circuit judgeship. Although she did not practice law thereafter, she assisted the husband in an unsuccessful state-wide judicial campaign in 1976, worked as a secretary for him for a time, and assisted him when he authored a law book.

The evidence revealed that, at the time of final hearing, the husband’s assets consisted primarily of cash and an ongoing law practice. His net income for the year 1978 was at least $45,000. Although the wife’s income was negligible, she had cash, securities and substantial real estate. While it appears that the wife’s assets exceed the husband’s, the trial judge concluded that if the husband’s legal work in progress was taken into account, his assets could be as high as the wife’s. The court noted that the parties had approximately equal liabilities.

The trial judge also noted that while the husband was at the peak of his ability to practice law, the wife was beginning her practice after a four-year absence from professional contacts. The court recognized that the wife would incur the expense of setting up her own law practice. Yet it balanced this against the husband’s having to face the expenses of relocating his home and office, along with his continuing obligation to pay child support for his child from his previous marriage. The court then concluded that in setting up a law practice the wife would not be depleting her assets but, rather, would be investing them toward the production of future income. Hence, the court reasoned there was no necessity to award alimony to her.

At the outset we recognize that the law vests broad discretion in the trial court in determining amounts required for alimony and support. The corollary to this principle is that absent a clear showing of abuse of discretion, we must uphold the judgment of the trial court. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976).

We find no reason to disturb the trial court’s denial of the wife’s claims for award of permanent alimony or other sums to compensate her for her contributions to the marriage and her husband’s career. The wife contends that because she provided the parties’ marital home, owned the building from which the husband practiced law, and provided services to the husband, that she is entitled to a special equity toward building her husband’s law practice. The wife, however, retained both the home and the building following the dissolution of the parties’ marriage. Further, we do not think the services provided by the wife were “made over and above the performance of normal marital duties.” Duncan v. Duncan, 379 So.2d 949 (Fla.1980); see § 61.08, Fla.Stat. (1979).

Likewise, the wife was not entitled to an award of permanent alimony. This was a second marriage for each of the parties and it lasted only six years. The wife’s assets were sufficient to enable her to provide for herself and her education and experience should have enabled her to successfully reintegrate herself into the practice of law. Thus, permanent alimony was not warranted. Peck v. Peck, 291 So.2d 211 (Fla. 4th DCA), cert. denied, 301 So.2d 776 (Fla.1974). The wife’s reliance on Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975), is misplaced. There, the wife in a long term marriage had foregone a career to raise children and manage the home and, thus, did not have the opportunity to. develop marketable skills.

Here, there seems to be no serious question as to the wife’s ability to establish herself in a successful practice. In addition to having served as a county judge, she has served as a small claims court judge, school board attorney, and public defender. The wife does have a liquidity problem, however. Because her assets consist primarily of real property, she will require a reasonable time to readjust them to capitalize her law practice and sustain herself until it provides sufficient income.

As in In re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978), there is a great disparity between the present income of the parties. At the time of the final hearing, the wife was just recommencing practice after having not actively practiced law since 1972. It will undoubtedly require a reasonable period for her to establish a productive law practice.

We recognize that the wife has capital assets, but the law does not require her to use these during rehabilitation to maintain some semblance of the standard of living she enjoyed with her husband. Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977); Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967). The husband has the ability to provide rehabilitative alimony and this, it would seem, is the proper mechanism to assist the wife to recommence her law practice. See Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973).

Accordingly, we reverse the trial court’s denial of alimony, and remand for an award of rehabilitative alimony to the wife in an amount and for a period which the trial court determines necessary. Otherwise, we affirm the final judgment of dissolution. Since more than one year has passed since the trial court entered the final judgment of dissolution, the court may now find it appropriate to hear additional testimony to determine the actual needs of the wife since the final judgment, as well as evaluate any prospective needs and the husband’s ability to respond. See DeHart v. DeHart, 360 So.2d 1285 (Fla. 2d DCA 1978). The trial court’s award to the wife may take the form of lump sum for the retroactive period, or may be payable in such other manner as the court determines to be equitable upon consideration of all the circumstances.

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