author: LARRY G. SMITH, Judge. ERVIN, Judge,

text:
    Leroy JERRY, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. NN-361.
    District Court of Appeal of Florida, First District.
    May 13, 1980.
    Rehearing Denied June 12, 1980.

      Thomas A. Daniel, Florida Legal Services, Inc., Prison Project, Gainesville, for appellant.
    Earl H. Archer, III, Tallahassee, for ap-pellee.
   LARRY G. SMITH, Judge.

Jerry appeals an order entered after an evidentiary hearing denying his amended petition for writ of habeas corpus. The trial court determined that Jerry was accorded due process in his disciplinary hearing and his rights were adequately and completely protected. However, Jerry complains before us that he was not allowed to call witnesses nor informed that he had such a right even though the disciplinary committee knew or should have known that he desired to call witnesses. He also argues the trial court erred because he was not given a written statement of the findings and conclusions of the disciplinary team. We agree that Jerry should have been given the written statement and remand for that purpose. As to the other errors urged, we-affirm the trial court.

Initially, we note that an inmate does not have an absolute right to call witnesses in his behalf at a disciplinary proceeding. Roberts v. Brierton, 368 So.2d 117 (Fla. 1st DCA 1979). In Roberts, this court recognized that a trial court is not required to issue a show cause order or grant an evidentiary hearing every time an inmate makes a conclusory allegation that he was denied an opportunity to call witnesses. Instead, detailed factual allegations are required. This requirement may be met by alleging the specific evidence sought to be elicited from the witnesses, its pertinence to petitioner’s guilt or to mitigating circumstances affecting the degree of his punishment. Piccirillo v. Wainwright, 382 So.2d 743 (Fla. 1st DCA 1980).

In the instant case, Jerry’s petition alleged several procedural violations of Rule 10B-12.08, Florida Administrative Code. In particular, Jerry alleged that he was denied the right to present any witnesses in his behalf, although he had a number of witnesses who could show that he was not guilty. However, the witnesses were not named nor was the evidence sought to be elicited from them set forth. Additional allegations concerning the testimony which could be obtained from-the witnesses were contained in a memorandum filed in support of the petition, but again, the witnesses were not named. It is noteworthy that at this point in the proceedings, it was also Jerry’s position that he was entitled to all the procedural due process requirements of Section 120.57(1), Florida Statutes.

As a result of these allegations, the trial court issued an order to show cause. In response, the Department gave Jerry a rehearing. The trial court stayed its proceedings until the rehearing was held. After the second hearing, Jerry was again found guilty of unarmed assault and the same punishment of loss of 180 days gain time was recommended. Thereafter, an ev-identiary hearing was held before the trial court on the question of the adequacy of the due process afforded Jerry at the second disciplinary hearing. Prior to the evidentiary hearing, Jerry withdrew his request for an administrative hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing on his petition, Jerry testified that he asked to call witnesses at his rehearing, but his request was denied. He gave the names of the witnesses he wanted to call, but he did not give the substance of the testimony he sought from them or its pertinence to his guilt or innocence. On the other hand, the three members of the disciplinary panel testified that Jerry never asked to call any witnesses and in fact was given an opportunity to “give his story” but he refused. The members testified that Jerry was sullen and uncooperative when told he would not be allowed an attorney or an administrative hearing pursuant to Section 120.57(1), Florida Statutes, Notably, one member stated that Jerry told them he didn’t want to have a disciplinary hearing before them but he wanted a hearing before an' administrative hearing officer.

The trial court, having had an opportunity to observe the witnesses and judge their candor or lack of candor, resolved this conflict in testimony in favor of the Department. In ruling that Jerry was not denied due process, the trial court apparently believed the testimony from the Department witnesses that Jerry never asked to call witnesses, but instead demanded that he be accorded an administrative hearing. We are not at liberty to disturb this ruling, since the resolution of conflicting testimony is peculiarly within the province of the trial judge.

Concerning Jerry’s contention that he was prejudiced because the disciplinary panel did not inform him that he had the right to call witnesses, we point out that procedural rights of prisoners in disciplinary proceedings are not an end in themselves but are a means of achieving a fair and just determination of the question of whether an inmate in fact committed the infraction charged and, if so, whether mitigating circumstances exist. Piccirillo, supra. In that regard, we again note that Jerry testified that he asked to call witnesses at the disciplinary proceeding, but his request was turned down. This testimony •necessarily implies that he knew he had a right to call witnesses. Further, it belies any allegation of prejudice as a result of this alleged error.

Finally, we agree with Jerry that the Department should have provided him a written statement of the evidence relied upon and the reasons for the disciplinary action. Lightfoot v. Wainwright, 369 So.2d 110 (Fla. 1st DCA 1979). Therefore, on remand the Department is directed to furnish a copy of the written statement to Jerry.

In all other respects, the order is affirmed.

BOOTH, J., concurs.

ERVIN, J., concurs and dissents with opinion.

ERVIN, Judge,

concurring and dissenting.

I agree with the majority that the department must provide Jerry with its written statement of evidence, and, because the evidence was conflicting on the question whether Jerry requested witnesses be called at his disciplinary hearing, that the evidence sufficiently supports the finding he did not make such a request. However, as to the majority’s conclusion that Jerry had no need to be advised of his right to call witnesses, Jerry now finds himself in a bizarre Catch-22 position. The majority concurs that Jerry never made the request, but paradoxically finds, due to his statements that he did so ask, he must have been aware of his right to have witnesses, and so did not need to be advised. I do not think both findings are tenable. Either Jerry made the request, or made none, and, if he failed to do so, the record is silent on whether he was ever advised by the department, as required by its own rules.

Although the rules do not specifically state the disciplinary team must advise an inmate that he has the right to bring material witnesses to a hearing, this right is necessarily implied since the rules.allow the inmate to request material witnesses, and provide that the team will call such witnesses “who are available and who are determined to be necessary for an appreciation of the circumstances.” Fla.R.Admin.Code 33-3.08(14)(i). Moreover, if the team declines to comply with an inmate’s request for witnesses, it must state its reason for the denial. Id. Clearly an inmate’s right to call witnesses, albeit qualified, presumes the concomitant right to be aware of such a right. Additionally, subparagraph (14)(c) of the rule provides that whenever a disciplinary report warrants either consideration of disciplinary confinement or loss of gain-time, the disciplinary team shall explain to the inmate “the procedures that will be followed in the hearing . . . .” I think the conclusion inescapable, given both the majority’s decision that Jerry made no request and the record before us, that the department failed to comply with its rules by not advising Jerry that, if requested, material witnesses could be called. We previously reversed an order denying without a hearing a petition for writ of habeas corpus which had alleged the department did not observe its own rules at a disciplinary hearing. Moore v. Wainwright, 366 So.2d 183 (Fla. 1st DCA 1979). When, as here, similar allegations remain unrefuted, I see no justification for excusing the department’s unexplained deviation from the clear requirements of its rules.

The rule stated in Roberts v. Brierton, 368 So.2d 117 (Fla. 1st DCA 1979) and Piccirillo v. Wainwright, 382 So.2d 743 (Fla. 1st DCA 1980), and relied upon by the majority, requiring detailed factual allegations as a precondition to habeas relief, has no application to the circumstances before us. Following Jerry’s first disciplinary hearing, he filed a petition for writ of habe-as corpus, alleging the department’s unlawful taking, of gain-time credits without following its rules, specifically those requiring that he be informed of his right to request witnesses. Jerry explicitly alleged that he “was denied the right to present witnesses in his behalf, although he has a number of witnesses who could show that Petitioner was not guilty.” The department responded, stating that it consented to a rehearing on the disciplinary charges, and requested that the habeas action be stayed pending the outcome of the second disciplinary proceeding. A rehearing was held. We now accept the finding of the lower court that Jerry did not ask for witnesses at the rehearing; yet the department knew before the rehearing was conducted that Jerry’s petition had alleged his first hearing was tainted by the department’s unexplained denial of his right to present witnesses and its failure to explain to him his right to request witnesses. The department cannot in good faith argue that Jerry’s petition for habeas did not afford it notice of the grounds he relied upon, since its concession to the rehearing must also have been an admission that the petition’s allegations presented colorable grounds for a new hearing.

Because I think the evidence does not reveal Jerry was advised of his right to call witnesses, as required by the agency’s rules, I would remand this cause to the trial court with directions that the case in turn be remanded to the disciplinary team; that the team provide the inmate with a copy of the written statement of evidence, and that it comply with its rules by advising him of his right to seek witnesses, and, should the team upon his request decline to call witnesses, that it state in the record, as required by Fla.Admin.Code Rule 33-3.-08(í4)(i), why such witnesses should not be called.

      . This rule is derived from the Supreme Court’s opinion in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), stating that an inmate at a disciplinary proceeding “should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to the institutional safety or correctional goals.” 418 U.S. at 566, 94 S.Ct. at 2979.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    Mary LAWSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-796.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 19, 1980.
    Long & Smith and Harold Long, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   HENDRY, Judge.

The appellant was indicted and tried for kidnapping and murder in the first degree in the Circuit Court for Dade County, Florida. The jury found her guilty of manslaughter. She appeals her conviction on the ground, inter alia, that the jury’s requested reinstruction on that charge was incomplete, and that she was prejudiced thereby.

On August 19, 1978, the appellant was involved in an incident which culminated in the fatal shooting of Giles Baker, whom she had sought out because he had stolen her purse. She was accompanied in her search by a fellow victim, and an acquaintance of the decedent. Testimony, both by the surviving participants and eyewitnesses, was contradictory.

At the close of her trial, the jury was instructed by the court on the degrees of murder, on manslaughter, justifiable and excusable homicide, false imprisonment and citizen’s arrest. Thereafter, the jury interrupted its deliberations to request reinstruction on the second and third degrees of murder, and on manslaughter, as well as false imprisonment and citizen’s arrest. Over timely objection by defense counsel, which, we find, comported with the requirements of Fla.R.Crim.R. 3.390, the court chose not to include in its reinstruction the definitions of justifiable and excusable homicide. This was error.

Controlling authority is found in the decision of Hedges v. State, 172 So.2d 824 (Fla.1965). In Hedges, as in the case sub judice, the appellant was charged with murder in the first degree, and convicted of manslaughter. Upon request of the jury, the court reread the instructions on manslaughter and the degrees of murder, withholding, over defense objection, redefinition of justifiable and excusable homicide. Reversal of the ensuing conviction was predicated on that failure, Mr. Justice Thornal noting for the court that manslaughter is defined as homicide which is not murder, and which is neither justified nor excused. Thus, a complete explication of manslaughter requires definition of the acts statutorily excluded therefrom. Hedges, supra, at 826; followed in Clark v. State, 301 So.2d 456 (Fla.3d DCA 1974); DeMattia v. State, 292 So.2d 390 (Fla.3d DCA 1974).

Appellee contends that a trial court may choose not to reinstruct on charges not specifically requested by the jury, citing Henry v. State, 359 So.2d 864 (Fla.1978). Such a reading is overbroad.

In that case, the petitioner was convicted of first-degree murder, after the jury had been reinstructed on the distinction between murders in the first and second degree. The Supreme Court held that the trial judge’s refusal to reinstruct on justifiable and excusable homicide was a proper exercise of his discretion; the jury had requested reinstruction only on first- and second-degree murder; it had therefore, already determined that the homicide was unlawful.

Similarly, where a conviction for first degree murder was ultimately returned, the appellant would not be heard to complain that the gratuitously-repeated manslaughter instruction was not accompanied by redefinition of justifiable and excusable homicide. The verdict rendered the matter moot, because the additional information to be gleaned from a description of lawful homicide could in no way have influenced the jury’s finding that the appellant was guilty of murder. Dean v. State, 325 So.2d 14 (Fla.1st DCA 1975).

We hold that the failure of the trial court to include- in its reinstruction on manslaughter — of which the appellant was ultimately convicted — the essential negating element of excusable homicide, “injuriously affected the substantial rights of the appellant,” where a finding of excusable homicide was not inconsistent with evidence presented at trial.

Because of our reversal on the ground stated above, we need not examine other issues presented by the appellant.

We reverse and remand to the court below for new trial.

Reversed and remanded.

      . “Jury Instructions. (d) No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.”

      . § 782.07, Fla.Stat. (1979): “Manslaughter. The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . . and in cases in which such killing shall not be excusable homicide or murder, . . . shall be deemed manslaughter . . . .”

      . § 924.33, Fla.Stat. (1979).


author: VANN, HAROLD R., Associate Judge.

text:
    Roscoe Eugene CALDWELL, Appellant, v. Joan Marshall CALDWELL, Appellee.
    No. 79-1091.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 16, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appel-lee.
    Before SCHWARTZ, PEARSON, DANIEL, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, HAROLD R., Associate Judge.

This appeal comes to us from a judgment dissolving the marriage of Roscoe and Joan Caldwell. Each party has taken issue with certain of the award provisions of the judgment. We are called upon first to resolve the claims of the husband that the trial court erred (1) in awarding to the wife the marital home and its various furnishings as lump sum alimony, (2) in awarding to the wife $359.42 a month (for twenty-four months) for the payment of debts incurred by the wife for necessities, and (3) in determining that the wife is entitled to attorney’s fees. We are then called upon to resolve the cross-claims of the wife that the trial court erred (1) in awarding her rehabilitative, instead of permanent, alimony and (2) in awarding her an insufficient amount of alimony. After due consideration of the judgment and record, as well as the briefs and arguments of counsel, we find, with one exception, that the trial court acted well within its discretion and, accordingly, all but the award of attorney’s fees to the wife must be affirmed. We find that the award of attorney’s fees must be reversed as not being consistent with the law of this state in light of the respective financial positions of the parties.

The Caldwells were married in 1955, shortly after the death of Mrs. Caldwell’s first husband. Mrs. Caldwell brought significant assets into the marriage; on the other hand, Mr. Caldwell’s assets at that time were modest. There is one daughter of the marriage (presently of college age). Mr. Caldwell is in his mid-50’s and is a college graduate, who has been employed throughout the marriage and now commands a very good income as a mortgage banker with a company in which he has a substantial ownership interest. Mrs. Caldwell, a junior college graduate now in her mid-40’s, has not undertaken lengthy outside employment during the marriage, but is multi-lingual. and has the benefit of a family business background in South America, as well as presently possessing a Florida real estate license and being associated with a real estate firm. From stock acquired through her own family and from insurance and other assets acquired after the death of her first husband, she has had her own source of income throughout the marriage. On the other hand, the husband’s assets are primarily owned jointly by the two parties through a tenancy by the entireties. The down payment on the marital residence came from the wife’s separate funds and the monthly mortgage payments have been made by the husband.

The court found that the funds the wife brought into the marriage have been expended, in one form or another, as contributions to the marriage, that the wife has an $8,630.00 indebtedness in “outstanding bills for necessities,” and that the husband has removed his separate property from the marital residence. Upon these and other findings, the court awarded three years rehabilitative alimony to the wife ($1,150.00 per month), placed the right, title, interest and sole occupancy to the marital residence (and its contents) in the wife, ordered the husband to pay off the wife’s indebtedness for necessities ($359.42 a month for twenty-four months), and awarded the wife reasonable attorney’s fees in an amount to be determined at the subsequent hearing.

On the basis of the well-recognized and frequently relied-upon principles in such cases as Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Koeppell v. Koeppell, 351 So.2d 766 (Fla. 3d DCA 1977); and Storer v. Storer, 305 So.2d 212 (Fla. 3d DCA 1974), we hold that the trial court’s determinations are supported by competent evidence in the record and demonstrate a proper exercise of discretion in awarding the husband’s interest in the marital home and its contents to the wife, in denying the wife permanent alimony, in setting the amount of alimony at $1,150.00 per month, and in ordering the husband to pay for the wife’s indebtedness for necessities. With regard to the marital residence, the nature of the wife’s assets are such that the trial court could, within its sound discretion, award the husband’s interest to the wife. See Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967). Also, such an award was not inappropriate in light of the wife’s significant financial role at the time of purchasing the residence. Cf. Lawless v. Lawless, 362 So.2d 302 (Fla. 2d DCA 1978). Concerning the points raised by the wife with regard to the question of the award of rehabilitative alimony, instead of permanent alimony, and the question of the amount of alimony, a review of the evidence reveals that the wife’s age, financial assets, and present capacity to undertake gainful employment amply support the reasonableness of the trial court’s discretion. See Griffith v. Griffith, 376 So.2d 418 (Fla. 3d DCA 1979); and Bateman v. Bateman, 301 So.2d 472 (Fla. 1st DCA 1974). Finally, with regard to the husband’s obligation to pay for the wife’s indebtedness for necessities, there has been no showing of any abuse of discretion.

In conclusion, however, we find that the trial court did err in its determination that the wife is entitled to attorney’s fees. In the present instance, the evidence is clear that both parties have a similar ability to secure competent, legal counsel. Accordingly, we must reverse on this point. See Bullard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980); Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978); and Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973).

Affirmed, except for the award of attorney’s fees to the wife, which award is reversed.

      . $100,000.00 insurance proceeds from the first husband’s estate, and $29,000.00 miscellaneous assets, as well as sizable assets from family property and stock in South America.


author: DOWNEY, Judge.

text:
    Irv SCHWARTZ, Appellant, v. DISNEYLAND VISTA RECORDS, a subdivision of Buena Vista Distributing Company, Inc., Appellee.
    No. 78-1783.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Rehearing Denied June 18, 1980.

      Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellant.
    William E. Sadowski of Helliwell, Melrose & DeWolf, Miami, for appellee.
   DOWNEY, Judge.

Appellant, Irv Schwartz, appeals from a summary final judgment in favor of appel-lee, Disneyland Vista Records, and from an order dismissing appellant’s counterclaim with prejudice.

Appellee commenced this litigation by filing a complaint against appellant to recover on six promissory notes signed by appellant and payable to appellee. Appellant’s answer contained four affirmative defenses: 1) estoppel, based upon appellee’s course of conduct; 2) the debt was owed by American Music Industries, Inc.; 3) the parties intended that the notes be executed by appellant in'a representative capacity on behalf of American Music Industries, Inc.; 4) lack of consideration.

Appellant later filed a counterclaim, seeking cancellation or reformation of the notes in question on the grounds that: it was the intention of the parties that the notes were the obligation of American Music Industries, Inc., and were to be signed by Schwartz in his representative capacity as president of American Music Industries, Inc.; the notes were not executed in accordance with the intent of the parties; appellant’s signing of the notes as an individual was a mistake.

Appellee moved for summary judgment based upon the pleadings, admissions, and affidavits of record. The undisputed proof reflected by the foregoing pleadings was that American Music Industries, Inc., and Disneyland Vista Records had ongoing business dealings during 1975 and 1976. As of May 21, 1976, American owed Disneyland over $93,000. As evidence of that indebtedness ten promissory notes were issued, payable to Disneyland and sighed by Irv Schwartz. The notes contained no reference to American Music Industries, Inc., nor is there any indication that Schwartz signed in a representative capacity. Prior to the filing of this suit American Music paid four of the notes.

The record contains an affidavit by Schwartz in which he states the following material things. Schwartz was president of American Music at all pertinent times. American Music was indebted to Disneyland for $93,090.06 in 1976. Acting on behalf of American Music, Schwartz agreed to sign ten promissory notes as president of American “to secure” the aforementioned indebtedness. Appellee prepared the notes which failed to accurately reflect the agreement of the parties in that they failed to name American as the maker of the notes. Appellee knew that it was dealing with the corporation American Music Industries, Inc., and that the notes would be signed by the corporation. Schwartz mistakenly signed the notes individually thinking he was acting in accordance with the agreement of the parties.

Appellee filed an affidavit which states that:

defendant on behalf of AMERICAN MUSIC INDUSTRIES, INC., agreed to execute a series of ten (10) Promissory Notes to secure an indebtedness due Plaintiff from AMERICAN MUSIC INDUSTRIES, INC.
3. That the Defendant executed the Notes in his individual capacity and the Plaintiff elected to treat the executed Notes as a counteroffer, which it accepted.

Appellee’s affidavit also states that appellee elected to consider the individually executed notes as a guaranty of the corporate indebtedness of American Music Industries, Inc., and that as consideration for the notes appellee forebore enforcement of the debt. Finally, appellee set forth the amount due and owing on the notes.

We fail to find reversible error demonstrated and affirm the order and judgment appealed from.

The entry of summary judgment was proper because the appellee’s claim is controlled by Section 673.403(2), Florida Statutes (1977):

(2) An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity:
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative • signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.

The notes in question are payable to appel-lee and signed by Irv Schwartz. There is no indication they are obligations of the corporation, American Music Industries, Inc., or that Irv Schwartz signed them in a representative capacity. Thus, under Section (2)(a), above, Irv Schwartz is liable on these notes as a matter of law.

The main thrust of appellant’s affirmative defense is that he should be allowed to adduce parol evidence to show the parties intended the notes were to be corporate obligations and that appellant’s signing individually was a mistake. However, the official Uniform Commercial Code Comment to Section 673.403 makes it clear that parol evidence is not admissible to “disestablish” obligations such as the notes here involved. Paraphrased, the example used in the Comment indicates the results various signatures have upon the individual liability of an agent. If American Music Industries, Inc., is a principal and Irv Schwartz is its agent, a note might bear the following signatures affixed by the agent:

a) American Music Industries, Inc.;
b) Irv Schwartz;
c) American Music Industries, Inc., by Irv Schwartz, agent;
d) Irv Schwartz, Agent;
e) American Music Industries Irv Schwartz;
f) American Music Industries, Inc., Irv Schwartz.

A signature in form (a) does not bind Irv Schwartz if authorized. A signature as in (b) personally obligates Irv Schwartz, and parol evidence is inadmissible under Section 673.403(2)(a) to disestablish his obligation. The unambiguous way to make clear that Irv Schwartz is signing in his representative capacity without personal liability is to sign as in (c). See 19B, F.S.A. 183.

Parol evidence is admissible under Section 673.403(2)(b) if the manner of signing the instrument creates a facial ambiguity:

Subsection 2(b) adopts the New York (minority) rule of Megowan v. Peterson, 173 N.Y. 1 (1902), in such case as (d); and adopts the majority rule in such a case as (e). In both cases the section admits pa-rol evidence in litigation between the immediate parties to prove signature by the agent in his representative capacity. Case (f) is subject to the same rule. U.C.C.Comment, 19B F.S.A. 183.

Appellant cites Dynamic Homes, Inc. v. Rogers, 331 So.2d 326 (Fla. 4th DCA 1976), among other cases, as authority for reversal, urging that decision as authority for permitting parol evidence in this case to resolve an ambiguity. While the court held there was an ambiguity in the signatures in the Rogers case, there is no ambiguity in Irv Schwartz’s signature in the present case. All of Schwartz’s signatures on the notes fall within form (b) of the Comment.

In addition to the affirmative defenses alleged in his answer as a basis for the adduction of parol evidence to show the intent of the parties, appellant also counterclaimed for reformation of the notes, based upon substantially the same contentions as those of the affirmative defenses. Appellant relies upon a statement contained in Betz v. Bank of Miami Beach, 95 So.2d 891 (Fla.1957), in which the Supreme Court, by way of dictum, mentioned that it appeared to the court that one who alleges he signed a negotiable instrument in the wrong capacity should seek reformation to have the instrument reflect the intention of the parties. Aside from the fact that the reference to reformation in Betz was dictum, the case predates the adoption of the U.C.C. in Florida. We, therefore, adopt the position of the U.C.C. Comment to Section 673.403 and hold that parol evidence is inadmissible in situations falling under Section 673.-403(2)(a), thus rendering reformation unavailable in those situations. To hold otherwise would emasculate the clear legislative intent to create certainty and stability in the law with regard to commercial paper used in everyday business transactions.

In view of the foregoing there was no genuine issue of material fact existing when the court entered the summary final judgment. The paper issue of lack of consideration had been disposed of by appel-lee’s affidavit, and the other issues raised by appellant regarding the intention of the parties were immaterial issues as a matter of law.

Accordingly, the order and judgment appealed from are affirmed.

AFFIRMED.

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


author: BERANEK, Judge.

text:
    Jerry BIANCO, Appellant, v. Adrianne BIANCO, Appellee.
    No. 79-837.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Rehearing Denied June 19, 1980.

      Joel L. Kirschbaum of Esler, Kirschbaum & Pomeroy, and Kahn & Gustafson, Fort Lauderdale, for appellant..
    James P. O’Flarity of Law Offices of James P. O’Flarity, Palm Beach, for appel-lee.
   BERANEK, Judge.

The appellant/husband seeks reversal of a final judgment entered in a dissolution of marriage proceeding. The appellant elected to proceed in this contested dissolution matter without counsel. He failed to comply with the wife’s attempts at discovery and failed to appear at the final hearing. We conclude that the attack on the final judgment by appeal is without merit and affirm.

The case presents an initial jurisdictional problem. The final judgment was rendered November 30, 1978. Appellant moved for rehearing on December 11,1978. Before an order was entered on this motion for rehearing, the husband filed a notice of appeal on April 11, 1979. The appellee asserts this court is without jurisdiction to entertain the matter. Appellee argues that the notice of appeal constituted an abandonment of the motion for rehearing; thus the appeal was filed more than thirty days from November 30, 1978, the time at which the judgment became final. In support of this proposition, appellee relies on Bannister v. Hart, 144 So.2d 853 (Fla.2d DCA 1962), and the dissenting opinion in Winn-Dixie Stores, Inc. v. Codomo, 372 So.2d 952 (Fla.3d DCA 1979). The majority in Winn-Dixie Stores, Inc. v. Codomo, supra, stated the problem as follows:

The question presented is whether a notice of appeal filed the day before an order denying post-trial motions is a timely notice when more than thirty days have expired from the date of the final judgment.

The Third District, relying upon Williams v. State, 324 So.2d 74 (Fla.1975), held that the premature filing of a notice of appeal did not require dismissal. Conversely, the Second District held in Bannister v. Hart, supra, that a notice of appeal filed more than thirty days after the final judgment, but before the court’s ruling on post-trial motions, abandoned said motions, rendering-the appeal untimely. The dissent in Winn-Dixie Stores, Inc. v. Codomo, supra relies on the Bannister rationale and argues that abandonment of the post-trial motion results in the judgment’s being rendered in point of time as though no such motion had ever been filed.

Both the view in favor of and against jurisdiction are, at best, technical applications of technical rules of procedure. We conclude that the instant appeal is timely because the notice of appeal was filed within thirty days from the rendition of the final judgment as we construe the Rules of Appellate Procedure. Although the filing of a notice of appeal constituted an abandonment of the appellant’s pending motion for rehearing, we hold it did not result in an abandonment of the suspended time period which resulted from the pendency of the undecided motion. Both appellant and ap-pellee were entitled to rely upon the suspension of finality resulting from the pend-ency of the motion.

Florida Rule of Appellate Procedure 9.020(g) defines “rendition” as follows:

(g) Rendition (of an order); the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, to alter or amend, for judgment in accordance with prior motion for directed verdict, notwithstanding verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof. (Emphasis supplied.)

We construe appellant’s withdrawal or abandonment of the motion as a “disposition” resulting in a rendition of the judgment upon the filing of the notice of appeal. In Rice v. Doyle, 232 So.2d 163 (Fla.1970), the Supreme Court held that the filing of a motion for new trial by a non-appealing defendant destroyed the finality of the pri- or final judgment between the plaintiff and an appealing defendant who had not moved for new trial. We believe that if the appealing defendant in Rice had simply withdrawn his pending motion for new trial, the result would have been exactly the same. Equating abandonment with “disposition” is consistent with the overall intent and purpose of the rule and, we believe, actually required by Williams v. State, supra.

In Williams, the Court refused to dismiss an appeal instituted by a premature notice of appeal. The Court stated:

This rule [of non-dismissal] shall apply to such situations as when the defendant filed his notice of appeal:
1. After oral pronouncement of judgment, but before the judgment is reduced to writing and signed.
2. After the written judgment is signed, but before it is rendered (filed for recording).
3. After the written judgment is filed for recording, but before a post-trial motion is decided.

We believe that the third example listed above specifically governs the instant case.

Contrary to the views expressed in Bannister v. Hart, supra, and the dissent in Winn-Dixie Stores, Inc. v. Codomo, supra, we find the effect of abandonment of the pending motion for rehearing does not vitiate the motion’s effect on the finality of the final judgment. We therefore hold that disposition of a timely and proper motion for rehearing occurs upon the trial court’s ruling thereon or upon abandonment of the motion by the moving party’s filing of a notice of appeal. Disposition might also occur upon the formal withdrawal of a ■pending motion for rehearing. We conclude that the appeal herein was timely and that this court has jurisdiction.

We have considered the matter on the merits and find appellant has failed to demonstrate error. The final judgment is therefore affirmed.

AFFIRMED.

LETTS, C. J., and MOORE, J., concur.

      . Were it otherwise, neither party to a dissolution proceeding could appeal where one party abandoned or withdrew a timely motion for rehearing more than thirty days after the final judgment. Both sides may be equally unhappy with a judgment and desirous of appealing. Abandonment of a post-trial motion by one should not destroy jurisdiction for an appeal by the other party who sat by waiting for final rendition of the judgment.


author: HOBSON, Acting Chief Judge.

text:
    Alfred GERARDO, Appellant, v. STATE of Florida, Appellee.
    No. 79-1033.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.

      Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The court consolidated two appeals from final judgments convicting appellant of three counts of sexual battery and two counts of burglary. The appellant assigns as error: 1) the trial court’s failure to certify him as a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1977); and 2) the trial court’s imposition of sentences in excess of the statutory maximum for the three sexual battery charges.

Section 917.14, Florida Statutes (1977), provides for an examination and hearing in the circuit court to determine whether a defendant is a mentally disordered sex offender:

(1) If a defendant has been convicted of or has pleaded guilty or no contest to an offense or attempted offense in a current prosecution, the court may defer sentencing and certify him'for a hearing and examination in the circuit court to determine whether he is a mentally disordered sex offender.
(2) The court may certify a defendant under subsection (1) on its own motion, oh motion by the State Attorney or the defendant, or on application by affidavit of the defendant.

Under Sections 917.14 through 917.20 the court appoints not less than two experts to make personal examinations of the defendant. These experts make a written report to the court including all facts necessary to assist the judge in passing sentence on or committing the defendant. The court then holds a hearing to determine whether the defendant is a mentally disordered sex offender. The court or the parties- may call the appointed .experts, and the parties may cross-examine them in the same manner as any other witness. Additional witnesses may be called to give material testimony. If the court finds that the defendant is a mentally disordered sex offender it must commit him to the custody of the Department of Health & Rehabilitative Services for care, treatment and rehabilitation. The department is periodically required to file a report describing treatment received and a diagnosis of the offender’s current condition. Within sixty days of receipt of this report the court must set a hearing date. If the court determines the offender is still dangerous, it orders his return for further treatment. However, if the court finds the department has exhausted all treatment for the offender or that he has improved to the extent he no longer meets the definition of an offender, the court orders him discharged from the department’s custody. Upon his discharge, criminal proceedings recommence. If the court finds the offender has been successfully rehabilitated by the treatment program, it may place the offender on probation. If the court, however, finds the offender continues to present a danger to others it may sentence him.

The purpose of Chapter 917 appears to be two-fold. Initially, it provides treatment for a narrowly defined class of sex offenders who, upon release after serving a term of imprisonment without treatment, are likely to continue to commit sex crimes. This provision recognizes that for some offenders institutional treatment may be instrumental in their rehabilitation, while conventional imprisonment will not. In addition, this statute requires the treatment to be prior to sentencing. Thereafter, the trial judge uses the department’s report to decide whether to sentence the defendant, place him on probation, or recommit him to the department’s custody for further treatment. While certification is within the court’s discretion, the court’s failure to certify a defendant who makes a strong, showing that he meets the qualifications constitutes an abuse of discretion. Section 917.-13(1) states:

(1) A ‘mentally disordered sex offender’ or ‘offender’ is a person who:
(a) Has been convicted of or pleaded guilty or no contest to a sex offense or attempted sex offense in a current prosecution;
(b) Suffers from a nonpsychotic mental or emotional disorder, yet is competent; and
(c) Is likely to commit further sex offenses if permitted to remain at liberty.

The defendant in this case meets all three qualifications because: he was convicted of sexual battery, the reports of an institution where he received treatment confirmed his mental disorder, and a court-appointed psychiatrist stated that if he were released without treatment he would be likely to commit similar crimes.

This statute provides the trial judge with assistance in determining the proper disposition of a defendant who has the propensity to commit a crime which the legislature determined both to involve a high rate of recidivism without treatment and be highly treatable. The legislature found that the trial judges needed professional medical assistance in this determination. Because the defendant could be released from prison, making treatment to prevent repeat offense important, and because the defendant’s mental condition and susceptibility of treatment are not readily determinable by the trial judge as the record reflects, this is an appropriate case for invoking the Chapter 917 procedure. Accordingly, the trial judge abused his discretion in failing to follow the statutory procedure.

In Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978), the defendant alleged the lower court erred by refusing to follow Chapter 917 procedure. There, the only evidence that the defendant’s disorder came within the statutory definition of a mentally disordered sex offender was the testimony of one psychiatrist. The appellate court, on the basis of the psychiatrist’s recommendation, concluded that the trial court’s failure to certify the defendant was an abuse of discretion. Hendricks was recently approved by this court in Rosier v. State, 374 So.2d 1041 (Fla. 2d DCA 1979), in which we held that where the defendant makes a strong and unrebutted showing that he meets the qualifications, the trial judge must certify him pursuant to Chapter 917. In Rosier, the strong showing consisted of two reports, one by a psychiatrist, the other by a psychologist, each of whom stated that the defendant was a mentally disordered sex offender. In the instant case the court-appointed psychiatrist, Dr. Walter E. Afield, stated that the appellant was

on the borderline of meeting the Florida Statutes of Sex Offenders. By history, he does meet those statutes. He has had a history of severe emotional problems in the past and still has them and needs treatment. . . Incarceration without treatment would be a mistake.

The report also stated:

Clearly he does have some sexual problems . . ..In terms of a future disposition, once the legal situation is resolved this young man should be in a treatment situation. He could qualify under the Statutes for the Florida Sex Offender, Statute 917 . .. The difficulty is that this man will be out again in the future and without treatment he would become a problem.

The reports of the psychiatrist and the Hempstead Correctional Institution established the appellant’s mental disorder and the unrebutted information in these reports suggests his propensity to commit sex offenses. Therefore, the appellant should be certified and examined by two psychiatrists and on the basis of their testimony the trial judge should decide whether the appellant is a mentally disordered sex offender.

The appellant was charged under Section 794.011(4)(c) which provides that a sexual battery in which the offender coerces the victim to submit by threatening retaliation is a first-degree felony. Section 775.-082(3)(b), Florida Statutes (1977), provides the maximum term for this offense is thirty years.

The parties agree that this court should remand the judgment and sentence to the trial court with instructions to reduce the sentence for each sexual battery not to exceed thirty years. The appellee, however, contends that on remand the trial court should be instructed to change the thirty-year sentence for each burglary to life imprisonment on the ground that the trial court inadvertently transposed the counts. The State’s argument is unsubstantiated by the record. At the appellant’s sentencing hearing, the assistant state attorney recommended that the court give the appellant two consecutive life sentences. Immediately thereafter, the court stated it was sentencing the appellant to life on the sexual battery charges and to thirty years on the burglary charges. The Florida Supreme Court has held that where the sentence on its face is clear it should not be altered by the reviewing court’s speculating about the trial judge’s intent. Fallagan v. Wainwright, 195 So.2d 562 (Fla.1967).

The State relies upon Poff v. State, 376 So.2d 62 (Fla. 2d DCA 1979), to support its position that the defendant’s burglary sentence may be increased from thirty years to life upon resentencing. In Poff, the defendant entered a plea of no contest to the charge of manslaughter with the understanding that he could receive fifteen years imprisonment, the maximum sentence for this offense. The trial court properly adjudicated him guilty of this offense and sentenced him to the maximum term of imprisonment allowed by law. The final judgment, however, included a count of vehicular homicide, for which the maximum term of imprisonment was five years. On appeal the defendant contended he was sentenced for the charge of vehicular homicide and, therefore, he could be sentenced at most to five years of imprisonment. This court found the inclusion of the count of vehicular homicide in the trial judge’s order was a clerical error, susceptible of correction on remand by striking it from the order. The order would then reflect fifteen years for manslaughter. Thus, in Poff, there was no increase in the sentence, only a correction of a clerical error in the designation of the offense. Similarly, in Baxley v. State, 317 So.2d 851 (Fla. 1st DCA 1975), the appellate court remanded for a correction of the record where the judgment showed that the defendant had pleaded guilty to two counts of robbery when he actually pleaded no contest to a single count of robbery. No increase in sentence was involved.

The State claims, as justification for increasing the burglary sentences, that the trial court mistakenly sentenced appellant to life for the sexual batteries and to thirty years for the burglary. However, no mistake appears on the face of the record. The only problem with the sentences which appears in the record is that the life sentences for sexual battery were excessive. Therefore, the only correction that should be made by the trial court is to reduce the sentences on the sexual battery charges. Because the trial judge’s burglary sentences are clear, to increase them would be a violation of double jeopardy. Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977).

BOARDMAN and DANAHY, JJ., concur.


author: BASKIN, Judge.

text:
    Eddie TAYLOR, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Ocean Reef Club, Appellees.
    No. 79-2004.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Robert E. Weisberg, Legal Services of Greater Miami, Inc., Miami, for appellant.
    James R. Parks and Harden King, Jr., Tallahassee, for appellees.
    Before HENDRY and BASKIN, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

Appellant Eddie Taylor’s claim for unemployment compensation benefits was denied by a claims examiner. An appeals referee reversed that decision. The Unemployment Appeals Commission reversed the referee’s decision. We now reverse the decision of the Unemployment Appeals Commission.

The appeals referee, sitting as the finder of fact, Lundy’s Market, Inc. v. Florida Department of Commerce, 373 So.2d 433 (Fla. 3d DCA 1979), determined the facts to be as follows:

The claimant became employed by employer ... a private resort club, as a lawn crew laborer, on May 13, 1975. The claimant was considered to be a good worker, and within two months was promoted to the position of crew chief. Pri- or to July, 1978, the claimant was considered to be an excellent worker, with a very good attendance record. However, in July, 1978, the claimant received a severe stab injury to his arm while off the job. The claimant utilized his vacation time to recuperate from his injury, but was also compelled to take several days off from work in addition to his vacation time. The claimant subsequently began to be absent from work more frequently because his arm did not properly heal, and because the extreme physical nature of his work, which included cutting grass, trimming trees, and edging, seemed to aggrevate [sic]-the injury to his arm. The claimant was advised by the department supervisor to telephone the landscaping office on each occasion that he was to be absent from work. The claimant’s girlfriend, with whom the claimant lived, always telephoned the employer to report the claimant’s absences. The claimant was admonished by the department supervisor on at least one occasion that he was absent from work too much. On December 29, 1978, the assistant supervisor informed the claimant and all other employees that they were to report for work on Saturday, December 30, 1978, so that they could have January 2, 1979, off from work as a holiday, in áddition to Monday. The claimant did not report for work on December 30, 1978, because he was ill. The claimant did not notify the employer of his absence because he was sick. The claimant’s girlfriend did not telephone the employer to report the claimant’s absence because she was too busy. When the claimant reported for work on January 3, 1979, he was discharged by the department supervisor.

The Commission concluded that claimant’s failure to call in sick on the date in question was misconduct. We find the decision of the appeals referee was supported by substantial competent evidence, Florida Industrial Commission v. Ciarlante, 84 So.2d 1 (Fla.1955); Catholic Social Services v. State Department of Commerce, 365 So.2d 427 (Fla. 1st DCA 1978), and must therefore be upheld. Lundy’s Market, Inc. v. Florida Department of Commerce, supra.

The decision of the Unemployment Appeals Commission is therefore reversed, and the decision of the referee is reinstated.


author: SCHWARTZ, Judge.

text:
    CITY OF CORAL GABLES, a Municipal Corporation, Appellant, v. Steve R. GEARY, Appellee.
    No. 79-2393.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Rehearing Denied June 19, 1980.
    Robert D. Zahner, Coral Gables, for appellant.

      Starr W. Horton, Miami, for appellee.
    Before SCHWARTZ, NESBITT and PEARSON, DANIEL, JJ.
   SCHWARTZ, Judge.

Coral Gables appeals from a final judgment requiring it to grant the plaintiff-ap-pellee four variances from building restrictions imposed by the city’s zoning code. The variances, which deal with set-back requirements and building and wall height limitations, were ordered because, as appeared without contradiction below, the unusual triangular shape of the plaintiff’s property rendered it simply and practicably impossible for it to be developed in accordance with the existing regulations.

It is, of course, well-recognized that the irregular shape or other peculiar physical characteristic of a particular parcel constitutes a classic “hardship” — unique to an individual owner — which justifies, and in some cases requires the granting of a variance. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941); see Leveille v. Zoning Board of Appeals, 145 Conn. 468, 144 A.2d 45 (1958); Downey v. Grimshaw, 410 Ill. 21, 101 N.E.2d 275 (1951); City of Baltimore v. Sapero, 230 Md. 291, 186 A.2d 884 (1962); 3 Anderson, American Law of Zoning § 18.34 (2nd ed. 1977). The appellant does not really take issue with this rule or with its clear application to the case at bar.

The city does contend, however, relying primarily upon Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA 1959), cert. denied, 116 So.2d 773 (Fla.1959), that the alleged hardship was “self-created,” thus precluding relief, because the plaintiff purchased the property in its present configuration with knowledge of the already-imposed building restrictions. See Allstate Mortgage Corp. of Fla. v. City of Miami Beach, 308 So.2d 629 (Fla. 3d DCA 1975), cert. denied, 317 So.2d 763 (Fla.1975); Crossroads Lounge, Inc. v. City of Miami, 195 So.2d 232 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 459 (Fla.1967); Friedland v. City of Hollywood, 130 So.2d 306 (Fla. 2nd DCA 1961). We do not agree with this position. Unlike the situation in each of the cited decisions, the hardship involved here arose from circumstances peculiar to the realty alone, unrelated to the conduct or to the self-originated expectations of any of its owners or buyers. See the discussion of the cases on this issue from other jurisdictions in 3 Rathkopf, Law of Zoning and Planning, § 39.02 (4th ed. 1979). In this case, therefore, as the court observed in Murphy v. Kraemer, 16 Misc.2d 374, 182 N.Y.S.2d 205, 206 (Sup.Ct.1958), “since it is not the act of the purchaser which brings the hardship into being, it is incorrect to charge him with having created it.” It is undisputed that the appellee’s predecessor in title, who held the property when the restrictions were initially imposed, would then have been entitled to the variances in question. Compare Duval Productions, Inc. v. City of Tampa, 307 So.2d 493 (Fla. 2d DCA 1975), cert. denied, 317 So.2d 78 (Fla.1975) (predecessor compensated for “hardship” created by condemnation). The “self-imposed” hardship doctrine thus does not apply. We endorse the principle stated in Harrington Glen, Inc. v. Municipal Board of Adjustment, 52 N.J. 22, 243 A.2d 233, 237 (1968):

As we indicated in Wilson v. Borough of Mountainside, 42 N.J. 426, 452-453, 201 A.2d 540 (1964), when neither the owner of the lot at the time of adoption of the zoning ordinance . . . nor a subsequent owner, did anything to create the condition . . . for which the variance is sought, a right to relief possessed by the original owner passes to the successor in title. Such right is not lost simply because the succeeding owner bought or contracted to buy with knowledge of the . . . restriction. See 2 Rathkopf, Law of Zoning & Planning, c. 48, p. 48-20 (3d ed. 1966). [e. s.]

Accord, Landmark Universal, Inc. v. Pitkin County Board of Adjustment, 40 Colo.App. 444, 579 P.2d 1184, 1185 (1978) (“If a prior owner would have been entitled to a variance at the time the zoning ordinance was passed, that right is not lost to a purchaser simply because he bought with knowledge of the zoning regulation involved.”); School Committee v. Zoning Board of Review, 86 R.I. 131, 133 A.2d 734, 737 (1957) (“The zoning law deals with the use of land. The time when the land was acquired is not pertinent in determining its proper use.”); Denton v. Zoning Board of Review, 86 R.I. 219, 133 A.2d 718, 720 (1957) (“The question of whether an applicant is entitled to a variance because of hardship flowing from a literal application of the terms of the ordinance is in no way dependent upon his knowledge or lack of knowledge of the existence of zoning restrictions affecting the land.”).

Affirmed.

      . Rathkopf’s summary of these decisions at § 39.02[3] aptly characterizes the Florida cases as well:
      Despite the fact that some courts have used language which, taken upon its face, would indicate that even where a unique hardship existed with respect to land which would have warranted the person owning that property prior to the enactment of the ordinance to apply for and receive a variance, the mere act of purchase with knowledge of the ordinance may alone bar the purchaser from the same relief, it is apparent that few higher court decisions have actually so decided. In each case in which the refusal of a variance was upheld and in which such language was used, the facts showed either that there was an affirmative act which ere-, ated the hardship peculiar to the property involved or that there was insufficient evidence as to at least one of the elements required for the grant of a variance.


text:
    Don SCHLOESSER et al., Appellants, v. David DILL, Appellee.
    No. 79-1679.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

The Monroe County Board of Commissioners, desirous of improving the services at Key West International Airport, published in the local news gazette a solicitation for bids by any parties interested in the lease, renovation and operation of the airport cocktail lounge. From six responses to their invitation, the Board chose the proposal of David Dill, the appellee herein. He was duly notified of the Board’s decision in his favor, and instructed to work out a written lease agreement with the County Attorney. However, the lease agreement so negotiated was ultimately rejected by the Board at a later meeting, and an intention was expressed by the Board to reopen bidding. Mr. Dill asserted that, even in the absence of a written lease agreement, a contract existed between the County and himself, and that their attempted recission was unlawful. The trial court, in agreement with his position, awarded specific performance of the contract. We affirm that decision.

The County’s solicitation for bids was an invitation for offers, by its own terms:

Each proposal shall constitute an offer to the County as outlined therein and shall be irrevocable after the time announced for the opening thereof.

See William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960).

The appellee’s proposal to the County, incorporating by reference detailed plans and specifications of the County for improvements to be made, was an offer of sufficient definiteness to form the basis of a contract. The Board accepted the proposal, and the appellee was notified of their acceptance by authorized agents of the County-

The trial court relied in its decision upon Dedmond v. Escambia County, 244 So.2d 758 (Fla. 1st DCA 1971), which turned on facts closely resembling those at bar.

Dedmond was informed by letter that the County had awarded him a concessions lease on a county-owned beach, pursuant to the terms of his proposal, which had been solicited through the county newspaper. He was informed in their letter of acceptance that he was to contact the County Attorney with regard to execution of a written lease. Before that lease could be signed, the County Board voted to seek additional bids. The Court of Appeals, reversing the trial court’s decision in favor of the County, noted that, “ ‘acceptance of a bid results in a contract even though a formal contract has not been executed.’ ” Dedmond, supra, at 760 (quoting 26 Fla. Jur., Public Works and Contracts, § 21). In Berry v. Okaloosa County, 334 So.2d 349 (Fla. 1st DCA 1976), the same court held that the County Commission’s acceptance of Berry’s bid did not create a binding obligation, where the decision was voted down during the same meeting, but Berry was npt officially notified of the original decision. Dedmond was distinguished on the basis of the notice which Dedmond received, and which Berry did not. “[N]o obligation is created by the acceptance of an offer until the acceptance is transmitted to the offerer.” Berry, supra, at 351.

This court recognized the controlling difference between Dedmond, and Berry, supra, in City of Homestead v. Raney Construction, Inc., 357 So.2d 749 (Fla. 3d DCA 1978). In that case, a written contract was entered into by the parties for the construction of a swimming pool. Subsequently, the city attempted to renege, on grounds not pertinent to our inquiry. There, we said:

[T]he clear import of the [Berry] decision was that a binding contract did come into being with the acceptance of a bid unless the action was rescinded at the same continuous meeting.
We hold that the City Code [provision at issue] did not invalidate the contract which was completed and the plaintiff notified of its acceptance. The City . ought not be allowed to . defeat the contract that came into being with the acceptance of plaintiff’s bid.

357 So.2d at 752. See also Wood-Hopkins Contracting Company v. Roger J. Au & Son, Inc., 354 So.2d 446, 448 (Fla. 1st DCA 1978).

We find, in accordance with the decisions of our sister district, and our own controlling caselaw, that a valid and enforcible contract arose between the parties at the point of the Board’s notice to Dill of its favorable decision.

We note no other basis of appeal inconsistent with our affirmance of the trial court’s command that the County of Monroe specifically perform its contract with Mr. Dill.

Affirmed.


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

text:
    Jerome UNATIN and Louis Unatin, d/b/a J & L Enterprises, a co-partnership in the State of Florida, Appellants, v. Oscar HUDON, Individually, and Holiday Village, Inc., a Florida Corporation, Appellees. Robert de Jaeger, ReJane de Jaeger, Rene de Jaeger and Andre de Jaeger, Counter-Defendants.
    No. MM-215/T1-25.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.

      Isham W. Adams, Daytona Beach, for. appellants.
    Nicholas A. Caputo, Holly Hill, for appel-lees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment of the Circuit Court for Volusia County granting specific performance of a lease between appellants, Jerome and Louis Una-tin, and appellees, Oscar Hudon, individually, Holiday Village, Inc., a Florida corporation, and Robert de Jaeger, ReJane de Jae-ger, Rene de Jaeger, and Andre de Jaeger. Mr. Hudon sued for declaratory judgment to determine the rights of the parties in relation to a lease agreement which had been executed by the parties and one which had not been executed. He also sought specific performance of the unexecuted lease. The Unatins counterclaimed asking the court to adjudicate the rights of thé parties under both leases and to grant other relief.

The Unatins were the owners of two mobile home parks located in Volusia County known as Holiday Park and Life Park. Mr. Hudon and Holiday Village, Inc. were interested in leasing and purchasing the parks. After a period of negotiation, the Unatins had their attorney prepare two contracts each of which contained a lease and an option to purchase a park. The contract covering the Holiday Park was executed but the contract for the Life Park was not. Testimony as to the reasons the Life contract was not executed is conflicting. The court resolved the conflict in favor of Mr. Hudon and Holiday Village, Inc., and found that “. . . the greater weight of the evidence supports the claim of Mr. Hudon and Holiday Village, Inc.; that the terms of the lease sought to be performed have been clearly established; that Mr. Hudon and Holiday Village, Inc. have been ready, willing and able to perform . . .” [Emphasis added]. The court found that Mr. Hudon was entitled to specific performance and required the Unatins to execute a lease equivalent to the unexecuted lease covering the Life Park property.

The first question raised by appellants was whether the court applied the correct standard of proof in granting specific performance of the unexecuted lease and option to purchase the Life Park property. The rule in Florida is well established. In a suit for specific performance of a contract for the sale of realty, the plaintiff must do more than prove his case by a preponderance of the evidence; he is required to prove his case by competent and satisfactory proof which must be clear, definite and certain. Hi-Acres Groves, Inc., v. Pope Bassett, 338 So.2d 1076 (Fla. 4th DCA 1976). See also Miller v. Murray, 68 So.2d 594 (Fla.1953); Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958), and cases cited therein. Likewise, see Alexander v. Bess, 123 Fla. 713, 167 So. 533 (1936), in which plaintiff attempted to obtain specific performance of an oral contract to lease land. The Supreme Court stated:

[W]e find that complainant failed to meet the degree of proof required by this court to enforce performance of an oral contract. This court has repeatedly held that such agreements must be supported by more than a mere preponderance of the evidence. The evidence should be clear, full, and free from suspicion.

Id., 167 So. at 535. See also Scott v. Anchor Inn Apartments, Inc., 282 So.2d 640 (Fla. 1st DCA 1973), in which the court stated that conflicting evidence as to the existence of a contract justified the trial court in denying specific performance of the alleged oral contract. The granting of a final decree in .a specific performance suit requires that the proof be clear, competent and satisfactory. Such a test imposes a greater degree of proof than is required under the preponderance of the evidence rule. Thus, the trial court did err in granting specific performance based on the “greater weight of the evidence” in favor of the appellees’ claim.

The second question raised by appellants was whether the court erred in admitting parol evidence to prove the existence of the unsigned Life agreement. Appellees contend that the admission of parol evidence was proper because the Holiday Park and Life Park leases were part of the same transaction and that each lease stands or falls with the other.

Appellees cite Paragraph 24 of the Holiday lease in support of their position:

Interdependent Leases. By this lease and another lease of even date, the Lessor has made three (3) year leases of that certain mobile home trailer park commonly referred to as LIFE MOBILE HOME VILLAGE located at 500 Nova Road, Ormond Beach, Florida, and that mobile home trailer park commonly known as HOLIDAY MOBILE HOME VILLAGE located at 1335 Fleming Avenue, Ormond Beach, Florida. Said leases shall during the original term of three (3) years be regarded as fully interdependent so that a default on one lease shall be regarded as a default on the other lease so that the Lessor will have the right to terminate both leases and pursue other remedies with respect to both leases unless the defaults on both leases are corrected. In the event of a default on one lease, with the other lease being in good standing, the Lessee of the lease not in default shall be notified in writing of the default on the other lease and shall have a period of fifteen (15) days from the date of the notice within which to correct such default. The two-leases shall cease to be interdependent upon the expiration of the original term or after the option to purchase provided for in either lease is exercised and the closing of the sale occurs.

When considered in its entirety, this paragraph does not have such an effect; it is triggered only upon a default in either lease. In the event of a default, appellants, the lessors, were given the right to terminate both leases. If the Life lease were never executed, the appellants would have lost a right under the lease but the appel-lees, the lessees, would have lost nothing. The paragraph has no application unless the appellees had defaulted.

Appellees also contend that the existence of the Life contract can be proved by parol evidence because it was referred to in the Holiday lease. In support of their contention, appellees cite Meek v. Briggs, 80 Fla. 487, 86 So. 271 (1920), in which the Florida Supreme Court held:

When memorandum [under the Statute of Frauds] consists of more than one writing, some of which are signed by the party to be charged and others not signed by him, in order that the unsigned writing or writings may be used to supply [the] essential elements of the contract, there must be some reference to them in the signed writings of such party. While it is true that when the memorandum consists of two or more writings parol evidence is inadmissible to connect them, it is also true that when there is a clear reference in one of such writings, which is signed by the party to be charged, to the unsigned writing parol evidence may be admissible to identify the writing referred to.

Id., 86 So. at 272.

Appellees have taken this rule and have stretched it to cover the situation sub judice in which the writing does not supply an essential element of the Holiday lease but instead would create an entirely new obligation, one to which the parties never evidenced their assent as required by the Statute of Frauds. Section 725.01, Florida Statutes (1977). Before a plaintiff may be allowed to give evidence of a contract for the sale of land not in writing or executed as required by the statute, it is essential that he establish, by clear and positive proof, acts which take the contract out of the statute. Maloy v. Boyett, 53 Fla. 956, 43 So. 243 (1907). Binninger v. Hutchinson, 355 So.2d 863 (Fla. 1st DCA 1978). Here, appellees have failed to do so.

The portions of the final judgment directing appellants Jerome and Louis Unatin to execute a lease equivalent to the Life Park agreement and requiring appellees, Oscar Hudon and Holiday Village, Inc., to pay the sum of $100,000, the initial payment, are REVERSED.

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


author: SHARP, Judge.

text:
    Delores A. HEGLER, Appellant, v. William F. HEGLER, Appellee.
    No. 78-2082/T4-220.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.

      H. Jay Stevens, Orlando, for appellant.
    R. Patrick Phillips, Orlando, for appellee.
   SHARP, Judge.

Delores A. Hegler appeals the final order entered by the lower court modifying the final judgment of dissolution by changing the permanent custody of the two minor children from herself to the children’s father. She argues that the lower court lacked jurisdiction to modify the judgment. We agree, and reverse the lower court’s order in its entirety as to the son, Robert Earl Hegler; and as to the daughter, Lisa Delores Hegler, we remand this matter to the lower court for the purposes of determining whether or not it had jurisdiction under the Uniform Child Custody Jurisdiction Act to enter the order modifying custody of this child at the time the petition was filed.

The Heglers’ marriage was dissolved in 1973, by a final judgment entered by the Circuit Court in Orange County, Florida. The wife was given the permanent custody of the two minor children, subject to the father’s reasonable rights of visitation. The judgment required the father to pay child support; and it contained no prohibition against the wife removing the children from Florida. In December of 1976, the appellant moved to Maryland with the two children. They resided there until July, 1978. On July 25, 1978, the appellant sent Lisa across the street to the grocery store. The appellee telephoned the appellant from the store to say he was taking custody of Lisa, and against the appellant’s wishes, he returned with Lisa to Florida.

Appellant filed a petition in Florida asking the court to hold appellee in contempt for taking custody of Lisa and for failure to pay arrearages of $6,845.00 in child support. The appellee filed verified pleadings claiming financial inability to pay the child support, and a denial of visitation rights with the children by the appellant. He also filed a petition to modify the custody of both children, alleging the appellant was not a fit and proper person to have custody; that he took custody of Lisa at the request of Lisa and the appellant’s boyfriend; that the appellant’s home was “unhealthy” because the mother was living with her boyfriend in an unmarried state; that the mother’s friends indulged in drinking alcohol to excess and in smoking marijuana in the presence of the children; and that the appellant left the children unattended “for considerable periods of time,” and did not devote full time and care to them. The husband also filed the affidavit required by Section 61.-132, which showed the children resided with the mother in Maryland from 1976 to 1978, and that the son was still in Maryland. The appellant denied the substantive grounds for modification and filed an affirmative defense challenging the jurisdiction of the Florida court to modify the custody award. Appellant alleged that the children had been residing in another state for more than 6 months prior to commencement of the modification proceedings and Lisa was wrongfully taken by appellee to Florida.

The lower court found appellee in contempt for failure to pay the $6,845.00 child support, but in a subsequent order dated August 31, 1978 it ruled it had jurisdiction to determine the petition for modification. The court stated it had jurisdiction because it was the court of “original jurisdiction” in this cause. After a hearing it changed the permanent custody of the children from the appellant to appellee because it found that the appellant was living with her boyfriend out of wedlock; the children were “unruly and in need of a better environment”; and the appellant’s friends used alcohol and marijuana to excess in her home. At the time of the final hearing both children were present in Florida because the court ordered appellant to present both children at the final hearing.

Florida adopted the Uniform Child Custody Jurisdiction Act effective October 1, 1977. It supersedes prior law in Florida which established the rule relied on by the trial judge in this case as the basis for jurisdiction. The Uniform Act is designed to give only one state jurisdiction to determine custody, unless exceptional circumstances exist. The intent is to avoid interstate competition and conflict and to discourage parental child-snatching such as occurred in this case.

The general rule is that the “home state” of the child should be the jurisdiction to hear and determine custody matters. Section 61.1308, Fla.Stat. (1977), provides;

(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state:
1. Is the home state of the child at the time of commencement of the proceeding, or
2. Had been. the child’s home state within 6 months before commencement of the proceeding, and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

The term “home state” is defined as “the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least 6 consecutive months ...” § 61.1306(5), Fla.Stat. (1977). Clearly the “home state” for Lisa and Robert was Maryland at the time the petition to modify was filed in Florida. The fact that the original decree was entered in Florida does not prevent loss of jurisdiction if the children have resided elsewhere for 6 months. Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979).

If Florida is not the “home state,” then exceptional circumstances must be alleged and proved to establish a basis for subject matter jurisdiction. Subsection (b) of § 61.1308(1) provides for jurisdiction if it is in the best interest of the child, and if:

1. The child and his parents, of the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.

No allegations of the appellee’s pleadings indicate any basis for jurisdiction under this provision. The basis for the modification was the unfavorable circumstances of the Maryland home — a matter which could be much more appropriately addressed in Maryland. § 61.1316(1); § 61.1304(3). Matteson v. Matteson, 379 So.2d 677 (Fla. 2d DCA 1980).

Under subsections (c) and (d) of § 61.1308, Florida may take subject matter jurisdiction, even if it is not the home state, if:

(c) The child is physically present in this state and:
1. The child has been abandoned, or
2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
(d) 1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the. child . . .

There was no basis for jurisdiction under (d). Maryland was the “home state” and would have heard the modification petition. Subsection (c) could possibly apply to Lisa because she was present in Florida when the petition to modify was filed, and the allegations might be read as claiming an emergency caused by neglect. See Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1979). But Robert was not present in Florida at the time the petition was filed, and thus subsection (c) could not apply to him under any circumstances.

We reverse the order of the trial court concerning Robert in its entirety because of lack of subject matter jurisdiction, and direct that his custody be forthwith returned to the appellant. Child support for this child shall be paid pursuant to the prior judgment and the trial court shall reinstate payment of the arrearages for Robert, in a manner it determines is equitable to the parties. With regard to Lisa, we remand this matter to the lower court for a hearing and determination of jurisdiction under § 61.1308(l)(c). The fact that the children have been in Florida since 1978 and that Florida may now have become their “home state” pending the lengthy resolution of this appeal shall not be considered by the trial court in determining jurisdiction of Lisa or Robert, as regards this or any future petition.

REVERSED and REMANDED.

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

      . Smith v. Smith (Fla. 2d DCA 1980) (Case No. 78-1906. Opinion filed March 26, 1980); Elliott v. Weyman, 337 So.2d 832 (Fla. 1st DCA 1976); Ward v. Wells, 298 So.2d 493 (Fla. 1st DCA 1974). “Decrees pertaining to the welfare of the children are, in a sense, interlocutory and because of this they may be modified, from time to time, as the welfare of the children requires.” Butler v. Butler, 132 So.2d 437 (Fla. 3d DCA 1961).

      . § 61.1304(1) and (5), Fla.Stat. (1977). See also: § 61.1308 Fla.Stat. (1977).

      . § 61.1308(1)(b), Fla.Stat. (1977).

      . § 61.1308(1)(c), Fla.Stat. (1977).

      . Code 1957 Art. 16, § 184 to 207. Maryland adopted the Uniform Act in 1957.

      . “The reversal of a judgment restores the parties to the condition in which they stood before it was rendered.” 2B Southern Digest, Appeal & Error, § 1180(1) (1971). See also: Chitty & Co. v. Granthum, 1 So.2d 725 (Fla. 1941); Jackson Securities & Investment Co. v. A. Paul Goodall Real Estate & Insurance Co., 28 Ala.App. 339, 184 So.2d 344 (1938). Moreover § 61.1308(1)(a) 1 and 2 (supra) specifically refer to “commencement of the proceeding” as the controlling time for determination of jurisdiction.


author: LARRY G. SMITH, Judge.

text:
    Randy MILLER et al., Appellants, v. AGRICO CHEMICAL COMPANY et al., Appellees.
    No. PP-385.
    District Court of Appeal of Florida, First District.
    May 21, 1980.

      Jim Smith, Atty. Gen. and E. Wilson Crump, II, William D. Townsend and David K. Miller, Asst. Attys. Gen., for appellants.
    Julian D. Clarkson, John Radey and Chesterfield Smith, John Radey and Julian D. Clarkson of Holland & Knight, Tallahassee, of Conley & Dooley, P.A., Sarasota, for appellant.
   LARRY G. SMITH, Judge.

The Department of Revenue (DOR) appeals a final judgment entered by the circuit court awarding appellees-chemical companies (taxpayers) a refund of 1977 severance taxes paid under Section 211.30(5), Florida Statutes. The Department contends that the trial court erred in striking down its revised method of computing the tax for 1977 by means of which the Department added the amount of the severance tax itself to its formula for computing “value”, for tax purposes. We affirm.

The Department presents a multi-faceted argument to support its basic contention that computation of the “value” of minerals at the point of severance, under Chapter 211, Part II, Florida Statutes, should include the severance tax which accrues at the time of severance. The Department argues that the severance tax is an element of cost, arising at severance, which a hypothetical seller at the point of severance would seek to recover. Thus, according to the Department, the amount of the tax should be included as part of the “value” of the minerals at severance. The Department emphasizes its position that the severance tax is an excise tax on the privilege of severance, so that the severing party becomes liable for the tax at the time of severance. It reasons that a hypothetical seller of phosphate rock at the point of severance would recognize that its liability for the severance tax had already arisen, and would pass this tax on to the customer. The Department recognizes that Florida courts have not adopted this principle, but it points to courts of other jurisdictions which have held that liability for oil and gas production taxes arise at the time the oil or gas is severed and reduced to possession. Humble Oil and Refining Company v. Calvert, 478 S.W.2d 926 (Texas 1972), cert. den. 409 U.S. 967, 93 S.Ct. 293, 34 L.Ed.2d 234 (1972); Texas Company v. Fontenot, 200 La. 753, 8 So.2d 689 (1949).

The Department further asserts that although the Florida courts have not had occasion to consider the “double taxation” argument presented by the taxpayers in the circuit court, other jurisdictions have upheld tax assessments which are similar to the Florida severance tax in their operation and effect, citing Hillard v. Big Horn Coal Company, 549 P.2d 293 (Wyo.1976); and Cyprus Mines Corporation v. Madison County, 172 Mont. 116, 560 P.2d 1342 (1977).

Finally, the Department further attacks as inconsistent and illogical the taxpayers’ contention that the last sentence of Section 211.30(5), which excludes any shipping, handling, processing or other charges arising between the point of severance and point of sale from determination of the “market price” at the point of severance of the minerals, also requires that the amount of the severance tax paid be similarly excluded in determining market price.

While we recognize and appreciate the position taken by the Department, resting as it does upon basic principles of taxation, we find no occasion to agree or disagree with the cases from other'jurisdictions cited by the Department because we feel compelled to base our decision upon more mundane principles of statutory construction. Taxing statutes are to be construed in a light most favorable to the taxpayer, and strictly against the taxing authority, particularly where taxes are being imposed upon taxes, or double taxation is involved. The Supreme Court of the United States has applied such presumptions by rejecting double taxation in the absence of unequivocal statutes requiring such pyramiding of taxes. See Maass v. Higgins, 312 U.S. 443, 61 S.Ct. 631, 85 L.Ed. 940 (1941); United States v. Supplee-Biddle Hardware Co., 265 U.S. 189, 44 S.Ct. 546, 68 L.Ed. 970 (1924); New Orleans v. Houston, 119 U.S. 265, 7 S.Ct. 198, 30 L.Ed. 411 (1886); Tennessee v. Whitworth, 117 U.S. 129, 6 S.Ct. 645, 29 L.Ed. 830 (1886).

Here the Department admittedly used one formula for the years 1974, 1975 and 1976, which did not include the severance tax as an element of “value”; then in 1977 the Department changed its formula by treating the severance tax as a cost to the taxpayer which it added to “value” of the minerals at the point of severance, even though there had been, in the meantime, no change in the statutory definition of “val.ue,” no change in administrative regulations pertaining to the severance tax, and no change in the industry which would justify a change in the computation of the taxable value of the phosphate. Furthermore, although amendments to the law were made in 1975 and 1977, the legislature did not redirect the Department as to the manner of determining the value upon which the tax should be assessed. A rule of statutory construction frequently applied is that the interpretation by an agency charged with administering a statute is to be given substantial weight. This rule has an even greater application when the agency attempts to change its administrative interpretation of the statute without any known or readily discernable reason for doing so. In this instance, we give greater weight to the first administrative interpretation, and reject its later unsolicited revision. See Hillsborough County Environmental Protection Commission v. Frandorson Properties, 283 So.2d 65, 68 (Fla. 2nd DCA 1973); Heftler Construction Company v. Department of Revenue, 334 So.2d 129 (Fla. 3rd DCA 1976). Accordingly, we affirm the decision of the trial judge awarding a refund of 1977 taxes, and requiring computation without reference to the Department’s amended formula.

We also affirm the award of interest at 8% on the amount of the tax refunds found to be due to the taxpayers. § 55.03, Fla.Stat. The Department argues that there is no statutory authority for judgment interest on tax refunds. However, the cases cited as authority deal with claims for interest from the date of payment of the tax. State ex rel. Four-Fifty Two-Thir ty Corporation v. Dickinson, 322 So.2d 525 (Fla.1975). The judgment here awarded no interest on overpayments between the dates of the payment and the date of judgment. The award of interest was limited to interest accruing from the date of judgment.

The judgment appealed from is AFFIRMED.

McCORD and SHIVERS, JJ., concur.


text:
    Dennis W. FELLOWS and Denise M. Fellows, a minor, by and through her next friend, Dennis W. Fellows, Appellants, v. CITIZENS FEDERAL SAVINGS & LOAN ASSOCIATION OF ST. LUCIE COUNTY, Florida, and Bank Building Corporation of America, Appellees.
    No. 77-2545.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Thomas Mitchell Barlow, Jr., and S. Lindsey Holland, Jr. of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellants.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellees.
   BERANEK, Judge.

Plaintiff appeals from a summary judgment in favor of the defendants. We affirm. The facts are that the plaintiff was proceeding on Highway U.S. 1 when he had car trouble. He left the highway and entered a driveway on the property of Citizens Federal Savings & Loan Association. This driveway area was under construction by the second defendant, Bank Building Corporation of America. Plaintiff was not a customer of the Bank and was using the driveway solely for his own purpose. It is alleged that the driveway was a one-way drive but that it was not properly marked on the pavement with arrows. In any event, plaintiff turned around in the driveway due to his car trouble. This placed him in the position of attempting to cross U.S. 1 from east to west. Plaintiff’s car was struck by a truck which had run a red light. Serious injuries occurred and plaintiff sued defendants, Citizens Federal Savings and Loan Association and the corporation doing construction work on the premises. Plaintiff’s allegations were that the driveway had been negligently designed and that the defendants had failed to provide warning signs or other traffic control devices at the entry of the highway.

The defendants filed motions for summary judgment. Final summary judgment in favor of defendants was entered and the order granting the motion does not recite the ground therefor.

Our review of the record indicates that the clear proximate cause of plaintiff’s accident was the truck on the highway which ran the light. The record conclusively shows that negligent design of the driveway, if any, was not the legal cause of the eventual accident which occurred on the far side of this four-lane, divided highway. Proximate cause means that the alleged wrong of the defendant caused the damage plaintiff claims. Rosen v. Parkway General Hospital, Inc., 265 So.2d 93 (Fla. 3d DCA 1972). There must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act the injury would not have occurred. Sardell v. Malanio, 202 So.2d 746 (Fla.1967). Here, even the safest of driveways would not have saved plaintiff from being struck by the truck which ran the light.

Much of the argument before the trial court and on brief before this court relates to the status of the plaintiff while on the defendant’s property. Defendants contend plaintiff was a trespasser and plaintiff contends he was either a business invitee or at least an uninvited licensee. We need not consider this issue because no matter what his status, there is no indication that any negligence of these defendants was the proximate cause of plaintiff’s injuries. A similar situation was presented in Pope v. Cruise Boat Co., Inc., 380 So.2d 1151 (Fla. 3d DCA 1980), where the Third District Court of Appeal affirmed a summary judgment based on an absence of proximate cause where the plaintiff entered a highway from an obstructed shoulder area. We believe this case is governed by the same principle as applied in the Pope decision and the summary judgment is therefore affirmed.

AFFIRMED.

ANSTEAD, J., and SIMONS, STUART M., Associate Judge, concur.


text:
    Kenneth John COSTICH, II, Appellant, v. Jacqueline Ann COSTICH, Appellee.
    No. 78-655.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      James P. O’Flarity, Palm Beach, and Donald B. Medalie, Port Lauderdale, for appellant.
    S.Robert Zimmerman, Pompano Beach, for appellee.
   DOWNEY, Judge.

Appellant husband appeals from a final judgment of dissolution of marriage.

The parties, age 36, had two minor children at the time of the dissolution. Their marital residence was jointly owned, subject to a mortgage of $23,366.21 and worth, according to the husband’s estimation, approximately $90,000 to $125,000. In addition, they jointly owned 75 shares of A.T. & T. stock valued at approximately $7,500.

The wife has a college degree in education and at the time of the dissolution was earning $250 per week. She was not, however, employed for the greater portion of the marriage.

The husband operates a gasoline service station from which the trial court found he earns an annual income somewhere in the vicinity of $16,500. He also receives $6,590 in dividends from stock worth approximately $85,000 net. In addition, the husband owns a business with a book value of. $41,-000. By way of inheritance the husband received a number of paintings and other works of art which were kept in the marital home.

During the course of the marriage the husband’s mother gave him a diamond ring for his second daughter. The husband allowed the wife to wear the ring. The wife testified he gave it to her to wear until the child reached 21 years of age and later told her it was hers to keep.

The final judgment awarded custody of the children to the wife, $80 per week child support, plus medical and dental care for the youngsters. The wife was also awarded the marital home as lump sum alimony, the diamond ring, a Pinto automobile, and the paintings and other art objects in the home.

The husband contends the trial court erred in almost all of the decretal portions of the judgment.

Initially, the husband argues that the award of custody, to the wife was erroneous because the court did not adopt in its entirety the stipulation of the parties regarding custody. The stipulation that the wife have custody provided that she must live within a 50 mile radius of her present address. We have considered appellant’s position regarding this point and fail to find error demonstrated. The matter of custody is a continuing consideration of the court and if appellant feels the best interest of the children requires a modification of the judgment, then he should apply therefor.

There is a conflict in the testimony about the ownership of the diamond ring. The court resolved that against appellant. However, there is no support in the record for a finding that all of appellant’s paintings, most of which he inherited from his father, belonged to the wife and we see no reason for transferring them to her.

Finally, the husband contends the award of the marital home as lump sum alimony was error. There were numerous cases existent at the time appellant wrote his brief which would support his contention that this award of lump sum alimony was improper. However, since the advent of Canakaris v. Canakaris, 382 So.2d 1197, the disposition of the property as lump sum alimony must be examined in a different light.

In any determination to award alimony, regardless of its character, there must be demonstrated a need on the part of the recipient spouse as well as the ability of the other spouse to satisfy that need. Once this need and ability have been established the court must next consider the type of alimony most appropriate under the circumstances of each case. A decision to award lump sum alimony must be governed by two factors set forth in Canakaris, supra:

(1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. 382 So.2d at 1197.

The second factor being self explanatory, we turn our attention to the first, the “justification” necessary for a lump sum award. As expressed in Canakaris, supra, this justification is not synonymous with some rigid standard carefully delineating the circumstances in which such an award is proper. Canakaris disavowed this narrowly structured approach while admonishing the courts to “avoid establishing inflexible rules that make the achievement of equity between the parties difficult, if not impossible”. 382 So.2d at 1197. This is not to say that the trial judge has unbridled discretion to award lump sum alimony, but rather that he must be “guided by all relevant circumstances to ensure ‘equity and justice between the parties’ ”.

Applying the foregoing test to the facts herein, we find the lump sum award of the marital home is both equitable and just under the circumstances of this case.

Accordingly, we affirm the judgment in all respects except as to the paintings which appellant inherited from his father. Those paintings should be awarded to appellant.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED with directions to modify as hereinabove directed.

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

      . Meridith v. Meridith, 366 So.2d 425 (Fla.1978); Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979).