author: OTT, Judge. CAMPBELL, Judge,

text:
    RODEWAY INNS OF AMERICA, an Arizona Corporation, Rodeway Inns of America, a Nevada Corporation; and Rodeway Inn-Clearwater, Ltd., a Florida Limited Partnership, Appellants, v. Robert E. ALPAUGH and Kathleen P. Alpaugh, his wife; Charles W. Birdsong, Sr., and Dorothy Birdsong, his wife; and E. Eugene Sitton and Donna L. Sitton, his wife; and ABS, Inc., Appellees.
    No. 79-1452.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1980.
    Rehearing Denied Nov. 26, 1980.
    J. Philip Plyler of Hill, Hill & Dickenson, Tampa, for appellants.

      Milton D. Jones of Wightman, Weidemeyer, Jones & Turnbull, Clearwater, for appel-lees.
   OTT, Judge.

The judgment below holds appellant liable on a mortgage which it had placed on the premises in order to obtain financing to construct a motel thereon, even though ap-pellee owners had evicted appellant and taken possession. We affirm the judgment, but deem it worthwhile to explain why that result was proper.

The pertinent facts are quite simple. Rodeway leased appellees’ land for 55 years for the purpose of constructing and operating a motel thereon. In order for Rodeway to obtain construction financing, appellees agreed to become signatories to a mortgage on the premises, which provided in pertinent part:

20. The undersigned by their joinder in this mortgage do hereby subordinate and make inferior any and all rights they have or in the future may have by virtue of any lease agreement by or between them on above described property and covenant that no parties are in possession other then mortgagors.
21. The Owner joins in the execution of this mortgage solely for the purpose of constituting this mortgage a first lien upon the fee simple title to the premises herein described and the Owner shall have no personal liability for the payment of any sums secured by this Mortgage and no personal liability or personal judgment may ever be taken against the Owner by reason of its execution hereof.

Pursuant to and consonant with that concession by appellees, Rodeway agreed in the lease (as amended) that:

Article X
Remedies
Section 1. Defaults. The LESSOR may terminate this lease or may evict the LESSEE from the premises and re-let the same for the account of the LESSEE upon the happening of any one of the following events: (a) failure of the LESSEE to pay the rent . ..; (b) failure to pay real estate taxes . ..; (c) failure to pay the monthly mortgage installment
Section 2. Re-entry. Upon the occurrence of any defaults hereinabove provided for or otherwise provided by law, whether the LESSOR elects to terminate this lease or evict the LESSEE and retake the premises for the account of the LESSEE, the LESSOR shall have the right to re-enter the premises .... Upon and after such re-entry by the LESSOR the LESSEE shall remain liable to pay the mortgage ....

Due to various local and national problems in the economy, the motel was not a success. Rodeway defaulted in payment to suppliers, to appellees for rent, and on the mortgage to the construction financier. Appellees terminated the lease, regained possession of the premises with Rodeway’s acquiescence, paid the delinquent operating expenses and brought the mortgage current. They then brought this action and obtained judgment for reimbursement of all such payments, and for collection of the rent accruing prior to the termination of the lease.

This appeal by Rodeway attacks only the portion of the judgment granting reimbursement for the mortgage payments which fell due after the termination of the lease. What Rodeway does not contend on this appeal is as revealing and significant as what it does contend. First, it makes no contention at any time that the provisions of the lease are in any way ambiguous. Moreover, although it advances many reasons for avoiding its obligation to satisfy the mortgage regardless of appellees’ termination of the lease and repossession of the premises, Rodeway never once denies that the literal language of the lease requires it to do so. Equally significant is the fact that Rodeway has never claimed that its officers who negotiated and signed the lease were in any way misinformed or otherwise laboring under a mistaken impression of the effect of such language. Moreover, Rodeway has never denied that the lease was terminated. In fact, that was expressly asserted to be so in the affirmative defenses Rodeway attempted to raise in the trial court.

In the absence of contrary agreement, a landlord whose tenant has defaulted in payment of rent can re-enter and dispossess the tenant. §§ 83.05 et seq., Fla.Stat. If there is a lease, however, its provisions are conclusively controlling, and a court will not substitute its .judgment for that of the parties by rewriting that lease. S. H. Kress & Co. v. Desser & Garfield, Inc., 193 So.2d 192 (Fla. 3d DCA 1966). Although the Florida Residential Landlord & Tenant Act (§§ 83.40 et seq., Fla. Stat.) permits courts to override the terms and conditions- of residential leases if they are deemed inequitable, there is no such control over business leases. As to those, the rule governing contracts in general is applicable-a party will not be relieved of obligations deliberately undertaken merely because they prove burdensome or otherwise improvident. Nussey v. Caufield, 146 So.2d 779 (Fla. 2d DCA 1962).

To counteract that general rule, Rodeway relies almost exclusively on Mandell v. Fortenberry, 290 So.2d 3 (Fla.1974) for the proposition that the claims of a landlord who retakes possession of premises which have been improved by the defaulting tenant are subject to setoff, under the equitable doctrine of unjust enrichment, for the net value added to the repossessed premises by the improvements. There is dictum in Mandell to that effect, but it must be noted that (1) the landlord did win that lawsuit and (2) the landlord’s theory of recovery was predicated on the doctrine of equitable subrogation, which explains the inapplicability of the normal rule that equitable defenses are not cognizable in actions at law unless they would suffice to avoid the judgment if one were obtained. Klein v. G. F. C. Corp., 103 So.2d 120 (Fla.1958).

A shorter answer to any reliance on Man-dell, however, is that the contract there did not specifically grant the relief sought, as does the one here. Rodeway agreed to pay the mortgage even though appellees terminated the lease and regained possession. The lease in Mandell contained no such provision. It is hardly surprising, under those circumstances, that the landlord found his equitable action met by the equitable defense of unjust enrichment-the inequity of allowing enforcement of the tenant’s continuing obligation on the mortgage with no offsetting credit for improvements which might have enhanced the value of the premises. There is no reasonable predicate for concluding that such a defense has validity where, as here, the agreement of the parties specifically and unequivocally dictates precisely that result.

The lease before us provided appellees with two alternative remedies when Rode-way breached the lease-terminate and reenter for their own benefit, or evict Rode-way and relet for Rodeway’s account. In either event, (1) appellees had a right to re-enter and (2) Rodeway remained obligated to pay the mortgage. Those provisions are in no way inconsistent or ambiguous-or in any way contrary to Florida law or public policy. We agree with the able trial judge, who ruled that the language in question was “as clear as spring water”, and it is significant that Rodeway itself has never professed to find any ambiguity in that language.

The applicability of Coast Federal Savings & Loan Ass’n. v. DeLoach, 362 So.2d 982 (Fla. 2d DCA 1978), on which Rodeway relies, is flawed by the fact that there the landlord sought two remedies that are patently incompatible, i. e., repossession for his own account and continued liability of the tenant for the accruing rent. There is no such inconsistency here-appellees terminated the lease and made no claim against Rodeway for further rent. They merely sought to enforce Rodeway’s explicit promise to satisfy the mortgage even if the lease were terminated and appellees took over the facilities constructed with the proceeds of the loan for which the mortgage was given.

For reasons which the parties deemed compelling at the time, they agreed that appellees would not be responsible for the improvements Rodeway planned to construct. The lease clearly reveals Rodeway’s awareness that such provision could result in an ordinarily anomalous situation-loss of the improvements without release from the obligation to pay for them. Rodeway was under no compulsion to proceed with the project under those conditions. It chose to do so of its own free will and volition, and it would be naive to think that it had no pecuniary motive or incentive for doing so. The trial court properly refused to tamper with the solemn commitments of astute business men.

In our opinion the terms of the lease, negotiated by the parties in good faith and with full awareness of the legal consequences, fully support the conclusion reached by the trial court. The judgment is affirmed.

SCHEB, C. J., concurs.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

I must respectfully dissent. The issue here is not whether the value of the improvements by appellants-lessees should be set off against the amount remaining due on the mortgage, but rather whether appel-lees-lessors should be allowed to collect the mortgage payments from a third person lessee after termination of the lease with appellants and also require appellants to pay the amounts due as mortgage payments after termination under the provisions of the lease, thereby resulting in a windfall to appellees in the amount of the double payment of some $325,214.05.

A more detailed recitation of the facts of the case than is presented by the majority is necessary to adequately explain this dissent.

Some two and one-half years after completion of the motel, appellees gave appellants notice of default and intent to terminate the lease, alleging failure to keep rent and mortgage payments current. Negotiations between the parties resulted in an agreement whereby appellants cured the defaults then existing and an “Amendment to Lease” was executed by the parties. The remedies provision of the amended lease provided that upon failure to pay the rents or mortgage when due or upon other specified defaults, the appellees could terminate the lease or evict appellants from the premises “and re-let [sic] the same for the account of the LESSEE.” The amended lease further provided that whether the ap-pellees elected to terminate the lease or evict appellants and retake the premises for the account of appellants, appellees would have the right to re-enter and “Upon and after such re-entry by the LESSOR the LESSEE shall remain liable to pay the mortgage.... ”

Approximately six months later appellees again notified appellants of their default as a result of failure to keep rent and mortgage payments current. Appellees expressed their intent to terminate the lease and immediately re-enter possession of the motel property. Appellants acquiesced and allowed appellees to retake possession. From that point on, the appellees operated the motel or leased it to third parties to operate.

Appellees claimed damages for the monthly mortgage payments that were made after their re-entry with ten percent interest on those payments.

Appellants’ first answer and affirmative defenses raised defenses of: Failure to state a cause of action, waiver of appellees’ rights under the lease by reason of a novation between the parties, estoppel by reason of unjust enrichment if the claim for damages was allowed, and estoppel for failure to properly mitigate damages. No specific facts were alleged to support any of the defenses. Appellees’ motion to strike those defenses was granted on the grounds that the first defense was actually a motion to dismiss and was not specifically pled as required by Florida Rule of Civil Procedure 1.140(b), and that the other defenses failed to state with particularity any facts to support them.

A first amended answer and affirmative defense was thereafter filed. The court also struck those amended defenses with leave to amend. The orders in the case up to this point were entered by one trial judge and thereafter the proceedings in the trial court were presided over by another judge.

Appellants then filed a second amended affirmative defense. They alleged that with their acquiesence, appellees took possession of the motel and thereafter operated it themselves or leased it to third parties, receiving therefrom more than sufficient funds to pay mortgage payments and all other operational costs of the motel. Appellants alleged that appellees would be unjustly enriched if, in addition to the funds they received from the motel operation which enabled them to make the mortgage payments, they were also allowed to recover from appellants the amount of those mortgage payments together with ten percent interest. The trial court struck this second amended affirmative defense without leave to amend on the basis that the defense of unjust enrichment was legally insufficient in view of the express provisions of the lease.

Subsequently, appellants filed a motion to allow them to plead affirmative defenses and a counterclaim. The essence of the defenses sought to be raised by appellants were that negotiations and communications between the parties resulted in an oral agreement providing that if appellants acquiesced in appellees’ termination and immediate occupancy, appellants would not thereafter have any continued liabilities; that appellants relied on these representations and acquiesced in appellees’ re-entry and appellees, therefore, should be estopped from claiming the full amount of the mortgage payments thereafter made; that appellants were entitled to a set-off and counterclaim against appellees’ claims in the amount of the value of the assets left on the premises by appellants; that appel-lees’ claim for the mortgage payments was an action for specific performance and barred by the statute of limitations; that the claims for damages occurring after reentry should have been mitigated by the appellees; and finally, that to enforce the provisions of the lease requiring appellants to pay the mortgage in addition to the receipt by appellees of income from the motel operations to pay the mortgage would constitute an unenforceable penalty.

The trial court granted appellants’ motion to add these defenses and counterclaim, but also granted appellees the right to test the sufficiency of the new defenses and counterclaim by motion.

The trial court then struck those final amended defenses and counterclaim as a result of appellees’ motions to strike and dismiss, holding the defenses were legally insufficient as an attempt to alter the terms of the lease by parol evidence, and further that failure to raise them initially caused prejudice to the appellees and they had, therefore, been waived or abandoned.

The first defenses of appellants may not have been factually sufficient, but they at least alerted the appellees to the nature of the claimed defenses, as did the second amended affirmative defenses. The thrust of the factual allegations consistently pled by appellants in their several defensive pleadings, however labeled, was directed toward showing that the motel had been self-sustaining since appellees’ re-entry and that appellees, by operation of the motel themselves or by leasing it to third parties, had received more than sufficient funds to pay the mortgage payments and all other costs of the motel operation and appellants, therefore, should be entitled to credit for the amount of those funds against any continued liability they might have to pay the mortgage payments. Although each of appellants’ defenses had been struck for various reasons, it cannot reasonably be said that the appellees were surprised or prejudiced when those same defenses were raised again by appellants’ final amended defensive pleadings in more detail. Note that after the trial court struck these final defenses and before the nonjury trial some three months later, the court allowed appel-lees to amend and supplement their claim for damages. The court at the same time denied appellants any opportunity to proffer at the trial evidence that would pertain to any of its affirmative defenses stricken by the court. Since I cannot conceive how appellees could have been surprised or prejudiced by these defenses, I would find that the trial court erred in dismissing them on grounds of waiver and abandonment or prejudice to the appellees.

The other ground for the court’s striking the defenses was that they were legally insufficient. The trial court found that appellants’ final amended pleading was an attempt to vary the terms of the lease agreement by parol evidence and, thus, legally insufficient. If allowed to have been pled and proved, however, appellants’ allegations could have shown the intent of the parties after termination and upon the reentry and subsequent reletting by the ap-pellees rather than the intent of the parties in entering into the lease agreement. When a lessor re-enters leased premises, the question of whether its re-entry and subsequent use of the premises is for its own account, for the account of the lessee, or is an outright termination and abandonment of the lease, is a question of fact for a jury. Hyman v. Cohen, 73 So.2d 393 (Fla.1954); Diehl v. Gibbs, 173 So.2d 719 (Fla. 1st DCA 1965).

The remedies provision of the amended lease seems to be the primary villain that causes the struggles of the parties in their pleadings, the efforts of the trial court to untangle them, and my concern in deciding whether appellants’ defenses were properly struck for being legally insufficient. In examining these lease provisions, it appears that the original lease provides only a single remedy or option to the appellees upon default by appellants; appellees could terminate. They then had the option to re-enter and remove all persons and property from the premises, in which case appellants would remain liable upon the mortgage to the extent appellees would be required to repay the same “and hold the LESSOR harmless in respect thereto.”

There appear to be two alternatives available to appellees under the terms of the lease as amended. They could either terminate or evict appellees and relet for the account of appellants. Whichever option was chosen, the amendment provided that upon appellees’ re-entry appellants would be required. to pay the mortgage. Under Florida law, it is inconsistent to provide for a lessor to re-enter and relet for the account of the lessee and yet require the lessee to remain obligated to pay the mortgage in full without an accounting by the lessors for sums received by such re-entry and reletting. The amended lease provision here is, thus, vague and ambiguous regarding the intent of the parties after a reletting by the appellees following a reentry.

Florida adheres to the minority view that upon an outright termination of a lease without assuming to do anything further, a lessor has no duty to mitigate damages by reletting or otherwise. Rather than adhering to the majority view that a lessor always has a duty to mitigate, Florida instead recognizes that a duty arises only as a result of which one of three alternative courses of action a lessor chooses upon a breach by a lessee. These alternatives were stated by this court in Coast Federal Savings and Loan Association v. DeLoach, 362 So.2d 982, 984 (Fla. 2d DCA 1978):

The lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a reletting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate. Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enter., Inc., 235 So.2d 344 (Fla. 2d DCA 1970).

Clearly, pursuant to both Florida law and the terms of the lease, appellees could have terminated and assumed to do nothing further and appellants would have been liable for the mortgage payments as they became due. Appellees did not elect that alternative. They elected to terminate the lease and re-enter for their own use and benefit. That alternative is not specifically stated in the lease, though it is an alternative recognized and discussed in Coast Federal Savings. There, in discussing that alternative and the one specifically provided for in the lease here, re-entry for the account of appellants, this court said:

Either of the first two choices excludes the third. By retaking possession either for his own account or for the account of the lessee, a lessor loses the right to recover the full amount of remaining rental due on the basis of an acceleration clause. The two positions are inconsistent. Geiger Mutual Agency, Inc. v. Wright, 233 So.2d 444 (Fla. 4th DCA 1970); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enter., Inc., supra. If the lessor retakes possession for the account of the lessee, two results follow. First, the lessor acquires a duty to exercise good faith in attempting to relet the premises, and second, any rentals received by the lessor as a result of the reletting must be deducted from the balance of rent due from the lessee. Kanter v. Safron, [sic] 99 So.2d 706 (Fla.1958); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enter., Inc., supra.

362 So.2d at 984. Even in Florida, it is only when the lessor elects to terminate and do nothing more, that no duty to mitigate arises. Lessees in that event are then liable to pay in full whatever the lease requires. Appellees here say they did not elect that alternative, but instead the alternative not specifically provided for by the lease. The problem here arises because the lease does not specifically address the rights of the parties in light of appellees’ stated election to terminate and re-enter for their own use and benefit. Though appellees could have elected an option which would have required no duty on their part to mitigate, they chose instead an option not specifically provided for by the lease but which would normally, under Florida law, raise such a duty. Appellants’ position here goes even another step, for they argue that whether or not there arose a duty to mitigate, appel-lees did in fact choose an alternative that mitigated the damages. It is in that light that the legal sufficiency of appellants’ pleadings must be examined.

The Florida courts have not specifically addressed the rights of a lessee when there arises- no specific duty to mitigate, but the lessor chooses to take actions upon re-entry that in fact do mitigate its damages. A ease close in point, however, is Kanter v. Safran, 99 So.2d 706 (Fla.1958). There the supreme court held that though lessees had deposited a specific sum as a security fund to be forfeited upon a failure to pay rents, when the lessors elected to relet the premises for the lessees’ account, the lessors’ claim for damages would be measured by the rents agreed to be paid and what in good faith the lessors are able to recover from a reletting. The court held:

The measure of general damages was abundantly clear and to set them off against the security deposit it was incumbent upon the lessors to prove them. As part of this proof it was necessary for the lessors to establish that they had in good faith attempted to recoup what they could, consistent with their own interests as well as those of the defaulting lessees. (Emphasis added.)

Id. at 707-08.

This court has decided two cases which aid in the determination of that question. The liability of the lessees upon termination in each of these cases is analogous to the liability of appellants here. In both cases, upon termination the lessees had an obligation to pay the full amount of accelerated rent for the remaining term of the lease. Here the obligation is instead to continue to make mortgage payments for the full period of the mortgage.

The first of the two cases is Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enterprises, Inc., 235 So.2d 344 (Fla. 2d DCA 1970), wherein the lessee who had assigned the lease to a third party refused to accept the premises back or pay the rent after the assignee abandoned the premises. The lessor relet the premises and also brought action against the lessee for the full amount of the accelerated rent without allowing credit for the amounts received by the re-letting. This court recognized the three alternatives available in Florida to a lessor on a breach by lessee. It then held that though rent acceleration clauses are valid and enforceable, it is error to allow a lessor to choose the option of re-entering and reletting without accounting for the amounts received from the reletting so as to credit them against the amounts due as accelerated rents.

. This court subsequently decided Coast Federal Savings. The lessor there appealed, citing as error the failure of the trial court to award the full amount of accelerated rents. The lessor had brought suit to recover accelerated rent payments after the lessee had vacated and ceased paying rent before the end of the lease term. The trial court reduced by eighty percent the amount of accelerated rents the lessor could recover because of its failure to use reasonable methods to mitigate. In reviewing the trial court’s judgment, this court recognized the three alternatives available in Florida to a lessor on breach by the lessee. The trial court had not made a specific finding in its final judgment that the lessor had in fact retaken possession and relet. Without stating a reason, the final judgment simply reduced the accelerated rents the lessee would be required to pay. This court relinquished jurisdiction back to the trial court for specific findings as to why it was reducing the lessee’s liability for the full amounts of accelerated rents. If the trial court had determined only an outright termination and nothing more, the lessee would be liable in full. If it found that the lessor chose to retake possession for the account of the lessee, then it could properly find the lessee only liable for the difference between the full rental payments as accelerated and the amounts that in good faith the lessor should have or did recover from reletting. However, if the trial court reduced the liability of the lessee, not upon election of an option by the lessor requiring mitigation but upon a duty of the lessor to mitigate absent a choice which raised the duty, then the trial court committed error.

Both parties here cite Mandell v. Fortenberry, 290 So.2d 3 (Fla.1974), as support for their positions. In Mandell, our supreme court considered on certiorari a decision of the District Court of Appeal, Fourth District, reversing a trial court’s judgment. The facts bear a similarity to those before us here. The plaintiffs in the trial court owned land which they leased to defendants. Defendants secured a loan to finance improvements to be placed on the land. Plaintiffs executed the mortgage securing the loan for the sole purpose of imposing the mortgage lien on the real property and not to assume any liability on the mortgage. The defendants defaulted on the note and mortgage which the plaintiffs then paid. The note was assigned to the plaintiffs and after they retook possession of the leased premises they sued for the full amount of the note. In awarding judgment for the defendants, the trial court found that the plaintiffs had not sustained their burden of proving damages, since they had not shown the value of the improvements placed on the leased premises in order that their value might be set off against their claim for damages. It does not appear from either the supreme court decision or the decision of the District Court of Appeal, Fourth District, that the defendants affirmatively pled that the plaintiffs were unjustly enriched by reason of the value of the improvements placed by defendants on the leased premises. Both courts held that unjust enrichment was an affirmative defense which must be specifically pled and proved by the defendant.

However, the decisions of both the supreme court court and the district court in Mandell appear to more strongly support appellants’ position that the trial court was in error in striking its defenses. The supreme court held:

Although the lease provided that all improvements added to the land would belong to the lessors upon being placed thereon, we are of the opinion that if, in a similar situation, the lessors were to receive substantial unjust enrichment, a court of equity could consider same, and reduce the damages payable to the lessors accordingly. As the District Court properly observed, the duty to plead and prove such unjust enrichment is on the defendants, since “it would have been an affirmative defense or an avoidance as to which the burden of proof would rest on defendants”.
If it had been demonstrated, in this instance, that the lessors sold their property for a greater price, because of the new buildings and golf course, then they could have received from the naked land, the chancellor could have properly considered that fact. No such proof appears here.
There is a presumption that the parties signing legal documents are competent, that they mean what they say, and that they should be bound by their covenants. This being so, it is only in those cases in which the unjust enrichment is substantial, and obviously inequitable, that courts should grant relief to those who break their valid contracts.

290 So.2d at 6-7.

It appears here that the appellants’ construction of the motel on the previously vacant property placed appellees in a better position to relet the premises and thereby reduce their losses or increase their profits. Appellees could conceivably receive from their operation of the motel or from subletting it sums sufficient to completely pay back the mortgage and pay for all operational costs and lost rents. In that event, appellees, without cost to them, would have their then unencumbered real property increased by the value of the motel. The judgment being reviewed here was for the amount of the mortgage payments, principal and interest, appellees made after reentry and through the final hearing. Even if the mortgage is completely paid off without costing appellees anything, their position, sustained by the trial court’s judgment, still allows them to collect from appellants the full amount of the mortgage unpaid at the time of appellees’ re-entry plus ten percent interest. The trial court’s judgment was inevitable once the court struck appellants’ defenses.

As are rent acceleration clauses, the provisions of the lease agreement here are closely akin to a provision for stipulated or liquidated damages. If the amounts stipulated in an agreement to be forfeited as liquidated damages are so grossly disproportionate to any damages that actually follow or that might reasonably follow a breach, they are considered to be intended only to insure no detriment arising by lack of the performance rather than as liquidated damages. Hyman v. Cohen, 73 So.2d 393 (Fla.1954). When actual damages contemplated by the parties upon a breach are susceptible of ascertainment, and if the stipulated amount is disproportionate to the actual damages, it will be regarded as a penalty. The purpose of damages in a breach of contract action is to place the injured party in the same financial position he would have occupied if the contract had been fully performed. Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33 (Fla. 3d DCA 1979).

In Stenor, Inc. v. Lester, 58 So.2d 673, 675 (Fla.1952), the supreme court in stating that rule held:

The prime factor is whether the sum named is just compensation for the damage resulting from breach. Though it is proper for parties to provide in advance for a sum to be paid or retained as liquidated damages, equity will not permit one seeking its aid to retain payments as liquidated damages in excess of his actual damages. Taylor v. Rawlins, 1905, 90 Fla. 621, 106 So. 424.

Appellants alleged facts in their affirmative defenses which tend to show that ap-pellees regained possession for their own use or for the purpose of reletting, or for the account of appellants. They alleged that in either event it would constitute a penalty to allow appellees to keep the sums received from their own use or from relet-ting and to additionally require appellants to make the mortgage payments under the lease without an accounting and a credit for those sums received by the appellees. As the supreme court said in Mandeil, even though parties are presumed to be bound by the covenants of their contracts, there are still “those cases in which the unjust enrichment is substantial, and obviously inequitable, that courts should grant relief to those who break their valid contracts.” 290 So.2d at 7. At least a party ought to be allowed to plead such a defense where the parties do not act precisely within the express terms of the contract or where the terms of the contract are ambiguous.

I would conclude, therefore, that the court below erred in striking those defenses on the grounds of waiver and abandonment and legal insufficiency. If those defenses had been allowed, appellants should also have been granted their request for trial by jury. I would reverse and remand.

      . We are not unmindful that Rodeway claims that the parties themselves, in effect, rewrote the lease by an oral novation at the time appel-lees re-entered the premises. In our opinion the trial court properly struck that affirmative defense. The release, surrender or rescission of a lease for a term in excess of one year must be in writing signed before witnesses. § 689.-01, Fla.Stat.; 11 Fla.Jur.2d 469, Contracts § 162.

      . The actual basis of the denial of certiorari was lack of jurisdiction.

      . If, by reason of the manner of his termination and re-entry, a lessor becomes obligated to use good faith efforts to mitigate, those good faith efforts should not be limited to only those damages for rent payments that lessee might be liable for, but any other damages that could in good faith be mitigated.

      . Fortenberry v. Mandell, 271 So.2d 170 (Fla. 4th DCA 1972).


source: Caselaw Access Project

author: ORFINGER, Judge. COBB, Judge,

license: Public Domain

text:
    In the Interest of D. A. H. and S. L. H., Minor Children, et al.
    Nos. 79-122/T4-372, 79-156/T4-372A.
    District Court of Appeal of Florida, Fifth District.
    Oct. 16, 1980.
    Rehearing Denied Nov. 25, 1980.

      Walter Komanski of Legal Aid Society of Orange County, Orlando, for appellant, mother.
    Sally Dee Rest of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P.A., Orlando, for appellant, father.
    Douglas E. Whitney of Dept, of Health and Rehabilitative Services, Orlando, for appellee.
   ORFINGER, Judge.

The final judgment appealed from terminated appellants’ parental rights and granted a petition by the Department of Health and Rehabilitative Services for permanent commitment for subsequent adoption. Appellant mother is the mother of both children, born April 1, 1975 and November 25, 1976, respectively. Appellant father is the father of the younger child, D.A.H. The father of S.L.H. did not appear.

On procedural grounds, the father of D.A.H. says that the judgment is improper because he was never served with process, despite knowledge by the social worker on the case that he claimed to be the father of this child. He is not married to the mother. Any error is not giving him notice was cured, however, when he voluntarily appeared, filed an affidavit of paternity, counsel was appointed for him and the proceedings were continued so that he could properly defend the petition.

The mother asserts that the evidence is insufficient to sustain the judgment terminating her parental rights, and while we are reluctant to interfere with the conclusions of the trial judge, it would appear that he applied an incorrect standard to the evidence before him.

Section 39.11(2)(d), Florida Statutes (1977) was the law in effect at the time these proceedings were commenced and heard. The statute did not attempt to define “abandoned” or “neglected” as it does subsequent to the 1978 amendment, but it is clear that those are among the required findings necessary to support a judgment of permanent commitment. The trial court recognized this requirement in the final judgment. He found the children to be abandoned and neglected “... as those terms are defined by F.S. section 39.-ll(l)(d) [(2)(d)] [sic] (1977) and F.S. section 39.01(1) and (2) [(27)] [sic] (1978) ....”

Whatever the 1978 amendment does to the requirement for findings of abandonment or neglect in permanent commitment cases, it does not apply to this case because the events which gave rise to the petition as well as the final hearing all took place before the statute became effective.

The only definition of “abandoned” prior to the 1978 amendment, as that term applies to this type of case, was found in cases dealing with adoption without parental consent, where consent was excused in the case of a natural parent who had abandoned the child. Under that statute, the cases have uniformly held that abandonment consists of conduct which manifests a settled purpose to permanently forego all parental rights and the shirking of the responsibilities cast by the law of nature so as to relinquish all parental claims to the child. Solomon v. McLucas, 382 So.2d 339 (Fla.2d DCA 1980); Durden v. Henry, 343 So.2d 1361 (Fla.lst DCA 1977). Temporary failures or derelictions of parents may justify temporary deprivation of custody of their child, but will not support permanent loss of parental rights. In re Adoption of Gossett, 277 So.2d 832 (Fla.1st DCA 1973). The 1978 amendments reinforce these decisions by making it necessary for the court to find the ability to support the child and provide it with the proper environment before it can declare an abandonment or neglect, unless the court finds that the parent does not evince a settled purpose to assume all parental duties. Under either statute, the court must also find that severing parental rights is manifestly in the child’s best interest.

When the State undertakes to permanently deprive a natural parent of the right to rear her children, the courts should zealously protect the rights of the parent and insure that this drastic action strictly conforms to legislative guidelines. Smith v. Florida State Dept. of Health and Rehab. Services, 299 So.2d 127 (Fla.3d DCA 1974). Permanent termination of parental rights is a drastic step and it should not be ordered except upon clear and convincing proof that the natural parent has conducted herself in such a way as to show a complete abandonment of the child. In re Adoption of Noble, 349 So.2d 1215 (Fla.4th DCA 1977). While it would serve no useful purpose to restate the evidence here, it is difficult to interpret the mother’s conduct as indicative of a settled purpose to permanently forego her parental rights and to shirk her parental responsibilities. She is disabled, has health and financial difficulties and lacks education. These shortcomings alone, however, do not subject her to the permanent loss of her children. Despite her medical problems she did visit her older child although missing some appointments, the last such visit on the before her younger child was born. She visited her younger child after he was placed in foster care, the last such visit occurring on October 18, 1977. On March 27,1978, the Department filed this petition, and it admits that it would not arrange for visitation after that time. Although appellant had not seen her older child for more than a year prior to the filing of the petition, she had visited her younger child within six months prior to the filing. She was not permitted visitation after the filing. The trial judge did not find the mother unfit.

This falls short of the required clear and convincing proof. Although there is evidence to support the court’s finding that termination of parental rights of the mother was manifestly in the best interest of the children, this is not enough under the applicable statute which requires the existence of one of the stated statutory grounds.

We reverse the final judgment and remand the matter to the trial court for further proceedings and reconsideration in the light of this opinion. Fortunately, the trial judge recognized the need to continue the parental contact during this appeal hoping for eventual rehabilitation, so the trial judge is free to take additional testimony as he deems warranted.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

In my view there was clear and convincing evidence before the trial court to support his factual determination that the best interests of the children herein concerned require their permanent commitment for adoption. The requisite statutory findings are recited and the evidentiary facts show:

In the years preceding the birth of her children, Mary led an eventful and unsettled life. She had a short temper and at age sixteen she got into a fight and almost killed a girl. Later that same year, she ran away from home. She lived with the Hell’s Angels. At age seventeen she had a miscarriage and attempted suicide. When she turned eighteen, she married. A year later her husband deserted her and she gave birth to her first child, S.L.H., on April 1, 1975 in Orlando. At this time, she was unemployed and was living with her grandmother. A short time later, she moved in with neighbors of her grandmother for free room and board in exchange for doing housework and caring for the neighbor’s child, along with S.L.H.

It was about this time that Mary attempted to give S.L.H. away at a shopping center. As a result, H.R.S. contacted her and tried to put her on a rehabilitation plan. The H.R.S. counsellors attempted to get Mary to participate in mental health counselling, to participate in vocational rehabilitation through the Bureau of Blind Services, and to attend parent education classes on child care. Mary refused to participate in any of the programs suggested by H.R.S. She voluntarily placed S.L.H. in foster care on March 5, 1976 and moved to Lakeland were she lived with her boyfriend’s relatives and was employed as a babysitter. After a few months, she and her boyfriend moved back to Orlando. Mary last visited S.L.H. on November 24, 1976.

The following day, on November 25,1976, D.A.H. was born. While pregnant with D.A.H., Mary had been hospitalized for nerves. She had also been warned by H.R.S. workers that if she was not able to assume responsibility for S.L.H. within three months after D.A.H.’s birth, then H.R.S. would move for permanent commitment. However, Mary continued to refuse to embark upon any program of rehabilitation other than to become employed as a topless go-go dancer, where she worked from 7:00 P.M. until 2.00 A.M. six days a week. Her live-in boyfriend was unemployed.

On June 7,1977, Mary left D.A.H. with a babysitter who took one of her own children to the hospital and left D.A.H. unattended with two other children. As a result, D.A.H. was picked up by H.R.S. and returned to Mary. Mary subsequently stipulated to having D.A.H. placed with H.R.S. The caseworker set up two appointments for Mary to see D.A.H., which she failed to keep. A third appointment was scheduled for July 14, 1977. On that date, the caseworker drove to Mary’s home, woke her up, and transported her to the H.R.S. center so that Mary could see D.A.H. Mary then failed to keep appointments to see D.A.H. on August 1, August 10, and on August 17, 1977, even though a caseworker went to her house to pick her up for the August 17 appointment. The caseworker visited Mary in her house on August 20 and October 10, 1977 and set up another visitation of D.A.H. for October 18, 1977. Mary appeared at that visitation with her boyfriend. However, although the appointment was scheduled for one hour in length, they ran out after about fifteen minutes because D.A.H. was crying and did not recognize the boyfriend. H.R.S. did not schedule any more appointments.

During the time that S.L.H. and D.A.H. had been in H.R.S.’s custody, Mary had made only $5.00 contribution to H.R.S. for their support. She had done nothing for them on their birthdays or on Hanukkah.

The last time that the caseworker visited Mary’s home, it was untidy. There was a garbage bag on the front porch. There was the smell of decaying food inside the home. Dirty dishes and pots and pans littered the kitchen. There was a strong smell of urine in the bedroom that would have been the children’s bedroom, and that day the house looked better than any other time that the caseworker had visited it. At other times, there had been garbage and broken bottles lying around.

Russell, the boyfriend who lived with Mary, had been unemployed for at least two years. He had initially denied paternity of D.A.H. However, after the petition for permanent custody was filed, he then admitted paternity.

Mary had indicated that she wanted the children back and that she loved them. When she had them, she clothed them with clothes given to her by H.R.S. and she fed them. It was never alleged that she abused them. However, she failed to devise any plan to emotionally or financially care for the children other than to look into the possibility of their being kept by a 24-hour babysitting service during the time that she worked.

An occasional visit does not negate “neglect,” as I understand that term. Nor should it, in my view, preclude a finding that this mother has shirked her parental responsibilities cast by the law of nature so as to relinquish her parental claims. The test is not what this court would do if initially passing upon the evidence, but whether or not there is sufficient evidence in the record to support the trial court’s determination. Morrison v. Smith, 257 So.2d 623 (Fla.2d DCA 1977). I would affirm.

      . § 39.11(2), Fla.Stat. (1977):
      When any child shall be adjudicated by a court to be a dependent child, the court having jurisdiction of the child shall have the power, by order, to:
      * * * * * *

        (d) Permanently commit the child to the division of family services or a licensed child-placing agency willing to receive the child for subsequent adoption if the court finds that the child has been abandoned by the natural parent or parents, and legal guardian, if any, of the child; or that the parent or parents, and legal guardian, if any, have substantially and continuously or repeatedly refused, or though financially able have neglected, to give the child parental care and protection; or that the parent or parents, and legal guardian, if any, are unfit by reason of their conduct or condition which is seriously detrimental to the child’s welfare; or if the parent or parents have voluntarily executed a written surrender of the child for subsequent adoption in the form required by paragraph (c) of subsection (7); and if the court finds that it is manifestly to the best interest of the child to do so.

      . § 39.01(1) and (27), Fla.Stat. (Supp.1978).

      . § 63.072, Fla.Stat. (1977).

      . In the Interest of P.S., R.S., and R.S. v. State, No. 79-423/T4422 (Fla.5th DCA, April 23, 1980).


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

text:
    Evelyn AMAZON, Individually and as Trustee and Surviving Director of Aqua Mundo Unit One, Inc., a Dissolved Florida Corporation, Appellant, v. Jordan DAVIDSON, Trustee and Individually, a single man, Appellee.
    No. 78-1341/T4-139.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Rehearing Denied Nov. 25, 1980.

      John M. Starling, Titusville, for appellant.
    Dale A. Dettmer, Melbourne, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Evelyn Amazon appeals from a summary final judgment of foreclosure which denied her fraud defenses and refused her application to release. part of the lands pursuant to a mortgage release clause. We reverse.

The record established the following: Evelyn Amazon was a wealthy widow with little business experience. She knew Jordan Davidson, appellee, who lived in the same condominium building. She understood that he was a successful real estate investor. Appellee owned approximately 800 acres near Melbourne, Florida of which he contracted to sell Bernard Buoncervello 187 acres and granted a series of options to enable Buoncervello to acquire the balance. The price for the 187 acres was $467,025.00, payable $50,000.00 down and the balance to be secured by a mortgage. Appellee was aware that Buoncervello had no assets and that his ability to meet the mortgage payments was dependent upon his sale of the property.

When the contract was signed, appellee asked appellant to witness the contract. He introduced her to Buoncervello describing him as a nice Italian boy who came from wealth and intended to buy Jordan’s property.

They discussed the agreement and appel-lee pointed out how successful he had been. He stated that real estate was an excellent investment, and that the only time there had been trouble with one of his deals, he settled with the woman involved so that she suffered no loss. He also represented that he had never foreclosed on a woman.

This meeting resulted in appellant and Buoncervello contracting to place the land in a corporation, Aqua Mundo Unit One, Inc. Appellant would contribute $94,-000.00; $50,000.00 to be used as the down payment required on the purchase contract with appellee, $25,000.00 in working capital, and $19,000.00 for pre-development expenses. Buoncervello’s contribution was limited to his experience and assignment of the contract to the corporation, but no money.

In July of 1974, when the mortgage payments became due, Buoncervello gave his fifty percent interest in the stock of the corporation to appellee as security for two notes. Later, appellee assumed ownership of the stock. The payment due January 1975 and all subsequent payments were not made. At that time, appellant’s contributions were $125,700.00.

Appellee brought suit for foreclosure. Appellant defended alleging fraud and asserted two counterclaims and a cross claim. The trial court entered a summary final judgment of foreclosure. At that time of the judgment, appellant had paid $41,703.00 on the mortgage. Although the mortgage contained a release clause providing that one acre would be released for each $3,300.00 paid, the court did not require the equivalent release because appellant did not file a motion for release until after the judgment but before the foreclosure sale.

The trial court found that the statements made by appellee which appellant contends were fraud were matters of opinion and not of material fact and could not, as a matter of law, constitute a past or existing material fact on which fraud could be claimed.

Generally, the issue of fraud is not a proper subject of a summary judgment since it is a subtle thing requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud. Automobile Sales, Inc. v. Federated Mutual Implement & Hardward Ins. Co., 256 So.2d 386 (Fla. 3d DCA 1972).

The essential elements of a fraudulent representation for which relief can be had are: (1) a false statement concerning a specific material fact; (2) the representor’s knowledge that the representation is false; (3)an intention that the representation induce another to act on it; and (4) consequent injury by the other party acting in reliance on the representation. 14 Fla.Jur. Fraud & Deceit § 9 (1957). A misrepresentation to be actionable must be one of fact rather than opinion but this rule has been recognized as having significant qualifications. Vokes v. Arthur Murray, Inc., 212 So.2d 906 (Fla. 2d DCA 1968). In Vokes, the court stated that the rule does not apply when there is a fiduciary relationship between the parties, when there has been some artifice or trick employed by the rep-resentor, when the parties do not in general deal at “arms length”, or when the repre-sentee does not have an equal opportunity to determine the truth or falsity of the fact represented. Id. at 908-909.

Appellant specifically alleged the following misrepresentations:

(1) [T]hat Sonny came from Italian royalty and was extremely reliable and knowledgeable in the marketing of real estate ventures;
(2) [T]hat Sonny was a man of great wealth and came from a family of great wealth; and
(3) [T]hat Evelyn would make a substantial amount of money on the real estate venture.

As to the first allegation, we would question whether Buoncervello’s royal blood would be significant; however, the representation that he was extremely reliable and knowledgeable in the marketing of real estate ventures would be of primary consideration to an investor who did not possess those skills herself. As to the second allegation, the representation that Buoncervel-lo was wealthy would also have great significance to a co-investor as would a representation that appellant would make a substantial profit on the venture. We note that the court found the statement that Buoncervello was knowledgeable in real estate marketing to be true. The other two allegations, however, are significant under Vokes because they could be viewed as coming from a party having superior knowledge and hence may constitute statements of fact as opposed to opinion had the parties been dealing on equal terms.

It is clear that the trial court under Vokes applied the wrong rule in respect to the issue of fraud because the appellant had alleged:

[T]he misrepresentations, deceitful and fraudulent conduct . . . constitute a scheme, device, trick and plan whereby [appellee] in concert with [Buoncervello] wrongfully and willfully extracted money from [appellant].

It cannot be said, as a matter of law, that appellant cannot recover since Vokes permits statements of opinion to form the basis for an action in fraud in certain situations, such as when there has been some artifice or trick employed. Appellant has asserted the existence of such a situation here.

The second question is whether the court erred in refusing to release lands from the mortgage where the instrument provided for such release.

No request was made of the trial to release the lands until a petition for rehearing was filed after the judgment of foreclosure, but before the sale. The trial court denied the release, holding that appellant could not raise the question for the first time on rehearing. However, in Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943), such a contention was rejected. Hollywood involved a suit to quiet title wherein plaintiffs sought to invalidate a deed which was recorded by defendants. The court entered judgment for plaintiffs. Defendants petitioned for rehearing contending for the first time in the motion that plaintiffs should be required to reimburse defendants for the taxes they had paid in previous years on the property. In essence, the court held that when sufficient evidence exists before the court so that only a question of applying the law exists and the other party is not taken by surprise, the trial judge has broad discretion to act on such matters without the need for new and amended pleadings. Id. at 185.

In the case before us, the mortgage was introduced and evidence relevant to the partial release was in the record. The court below was acting on the incorrect premise that consideration of the partial release was precluded. Since the case will be remanded for trial on the fraud issue, this point will vanish should the court require appellant to amend to ask for the release.

REVERSED and REMANDED for trial.

DAUKSCH, C. J„ and SHARP, J., concur.

      . “Since the whole context is necessary for the determination, it is seldom that one can- determine the presence or absence of fraud without trial.” Alepgo Corporation v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959).

      . As a general rule, before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him. Margolis v. Klein, 184 So.2d 205 (Fla. 3d DCA 1966). An amendment to the pleadings is therefore usually necessary where issues are sought to be litigated which are not raised by the pleadings. See Fla.R.Civ.P. 1.190.


author: SHAW, Judge. WOODROW M. MELVIN (Ret.), Associate Judge,

text:
    ESCAMBIA COUNTY, a Political Subdivision of the State of Florida, Appellant, v. Joe A. FLOWERS, as Comptroller of Escambia County, Florida, Appellee.
    No. TT-129.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.
    As Corrected On Denial of Rehearing Dec. 15, 1980.

      Richard I. Lott, County Atty., Patricia D. Wheeler, Asst. County Atty., Pensacola, for appellant.
    C. Roger Vinson of Beggs & Lane, Pensacola, for appellee.
    Michael Egan of Roberts & Egan, P. A., Tallahassee, amicus curiae.
   SHAW, Judge.

The appellee, Joe A. Flowers, is the Comptroller of Escambia County, Florida. His duties as such are enumerated in Chapter 73-455, § 7, Laws of Florida, and in Chapter 28, Florida Statutes. Under the Constitution he is an elected officer who serves as ex officio clerk of the Board of County Commissioners. By special act of the Legislature the duties of Comptroller and the Clerk of the Circuit Court of Es-cambia County have been divided into two offices. The appellee has, since 1961, turned over to the county all fees collected and operated his office within the county’s general budget from funds allocated by the county. The Comptroller submitted a proposed budget and amendments for the ensuing fiscal year, 1979-80. The Board of County Commissioners appropriated to the office a reduced sum resulting in a deficit allocation insufficient, in the opinion of the Comptroller, to meet the needs of his office.

The inability of the Comptroller to resolve his differences with the County Commission resulted in the filing of a complaint in the Circuit Court of Escambia County seeking declaratory and injunctive relief. The suit was amended to include a prayer for mandamus. The trial judge denied a motion for summary judgment and the ensuing trial resulted in the entry of a peremptory writ of mandamus. We conclude that the judge correctly determined that there was a genuine issue of material fact and his denial of summary judgment was proper. Shaffran v. Holness, 93 So.2d 94 (Fla.1957); Johnson v. Studstill, 71 So.2d 251 (Fla.1954). The order is accordingly affirmed as to the denial of summary judgment.

In its challenge to the trial judge’s finding the appellant directs our attention to § 145.022(1), Florida Statutes (1979), which provides:

(1) Any board of county commissioners, with the concurrence of the county official involved, shall by resolution guarantee and appropriate a salary to the county official, in an amount not to exceed that specified in this chapter, if all fees collected by such official are turned over to the board of county commissioners. Copies of the resolution adopted shall be filed with the Department of Banking and Finance and the Auditor General.

The appellant concludes that since there has been no resolution by the County Commission the Comptroller is, as a matter of law, a fee officer and the county has no duty to fund his office in any amount. The Comptroller, on the other hand, directs our attention to the statutory definition of county fee officer:

“County fee officers” means those county officers who are assigned specialized functions within county government and whose budgets are established independently of the local governing body, even though said budgets may be reported to the local governing body or may be composed of funds either generally or specially available to a local governing authority involved. (Sec. 218.31(8), Florida Statutes (1979)).

The record reflects that the Comptroller’s budget is not established independently of the county and has not been subsequent to 1961. The Comptroller has collected fees and dutifully turned them over to the county for inclusion into its budget and has been in turn appropriated certain funds with which to run his office. The Comptroller does not therefore appear to fall within the statutory definition of a “county fee officer”. Section 145.011, Florida Statutes, spells out the legislative intent of Chapter 145:

(1) In compliance with s. 5(c), Art. II of the State Constitution, it is the intent of the Legislature to provide for the annual compensation and method of payment for the several county officers named herein.
(2) ...
(3) It is further the intent of this Legislature to provide by general law for such uniform compensation of county officials having substantially equal duties and responsibilities, taking into account the multitude of changes that have affected these offices within the past decade.

Section 145.022(1), Florida Statutes, must be read in light of the articulated legislative intent and when so read it expresses the desire of the Legislature to protect, and make uniform, the salaries of certain county officials having substantially equal duties and responsibilities. We do not view the section as a limitation on the methods by which a county official may establish himself as a budget officer.

Point 2 challenges the following findings by the court: (1) the process by which the Board of County Commissioners adopted a budget for the Comptroller involved improper “delegation” of decision making to subordinate county employees; (2) the rationale for the funding decision is arbitrary; and (3) the level at which the Comptroller’s budget is funded will unreasonably impair the Comptroller’s ability to fulfill his constitutional or statutory obligations. We perceive these as factual issues that are best resolved by the trial judge and where, as in this case, his findings are supported by competent substantial evidence we are reluctant to disturb the findings.

As stated in Pinellas County v. Nelson, 362 So.2d 279, 281 (Fla.1978): “The Board of County Commissioners has wide discretion in approving, modifying or rejecting budget requests.” Nevertheless, an arbitrary and capricious abuse of discretion will justify the granting of a declaratory judgment. The Comptroller in this instance has made a sufficient' showing to entitle him to declaratory relief. Even so we are still confronted with the issue of whether a peremptory writ of mandamus will lie to compel the County Commissioners to fund his office in a stated amount. Normally judicial coercion in the form of mandamus will not lie to direct the manner in which administrative discretion will be exercised. Green v. Taylor, 70 So.2d 502 (Fla.1954). In this case there has been no demonstration of improper motive or prejudice. We are unable, therefore, to concur in the trial judge’s conclusion that the attitude of the Commissioners is such that it would be of no avail and a futile act for the court to simply direct the Commissioners to reconvene and reconsider the budget of the Comptroller. We have no reason to believe, on the record, that the Board on remand will ignore a judicial order that the Comptroller’s budget as presently allocated will not allow him to carry out the constitutional duties of his office. The cause is accordingly remanded to the trial court with directions that the cause in turn be remanded to the Board of County Commissioners for it to exercise its discretionary responsibilities within the confines of the trial court’s relevant findings.

ERVIN, J., concurs.

WOODROW M. MELVIN (Ret.), Associate Judge, concurs and dissents, with opinion.

WOODROW M. MELVIN (Ret.), Associate Judge,

concurring and dissenting.

I respectfully enter my dissent. The majority opinion sustains the findings of the able trial judge that:

(1) The process by which the Board of County Commissioners adopted a budget for the comptroller involved improper “delegation” of decision making to subordinate county employees; (2) the rationale for the funding decision is arbitrary; and (3) the level at which the comptroller’s budget is funded will unreasonably impair the comptroller’s ability to fulfill his constitutional or statutory obligations. I join the majority in approving the conclusion of the trial court. This court, having reached that determination, would then remand the cause to the trial court with directions to remand it to the Board of County Commissioners for further consideration. This lead-footed process commands a useless waste of time, a harmful continuation of the arbitrary budget restraints that prevent the comptroller from presently discharging fully the constitutional duties of his office, not the least of which is to audit the Board of County Commissioners.

The trial court found, and we agree, that the Board of County Commissioners dealt with the comptroller in an arbitrary manner. The bottom line issue is, in such posture of arbitrary and irresponsible conduct on the part of the Board, may the trial court by mandamus correct the situation. It is my view that under the facts of this case mandamus is proper. Based on this record, I find no basis to assume that the officer upon remand of the cause could receive fair and impartial consideration.

The trial court correctly decided the cause and I would affirm.


author: BERANEK, Judge.

text:
    Elton H. SCHWARZ, Public Defender of the Nineteenth Judicial Circuit, on behalf of all Indigent Juvenile Detainees, Petitioner, v. Philip G. NOURSE, Circuit Judge, Respondent.
    No. 80-1426.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1980.
    Rehearing Denied Dec. 17, 1980.

      Elton H. Schwarz, Public Defender, and Paul B. Kanarek, Chief Asst. Public Defender, Vero Beach, for petitioner.
    Margaret Mann Blanton, Grail & Saliba, Vero Beach, for respondent.
   BERANEK, Judge.

This matter has been considered on common law certiorari. The Public Defender of the Nineteenth Judicial Circuit attacks an order entered by respondent, a Circuit Judge. The order is set forth in full as follows:

IN THE CIRCUIT COURT OP THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA

CASE NO. 80-10

C. J. Miscellaneous

IN RE: Juvenile Act of 1980

(SENATE BILL 0409)

THIS CAUSE came on to be heard upon the oral request of various law enforcement officials of St. Lucie County, Florida, for guidance as to the aforesaid Act, and the State Attorney and Public Defender having been notified of the hearing, the Court finds as follows, to-wit:

The Act is confusing, impractical and not reflective of the intentions of the Legislators, i. e.:

1.The Legislature did not intend that children (some of which are thugs) when caught in the act of committing a serious crime such as burglary of a home, threatening children, scaring old people into a heart attack, eluding police officers in a wild chase down the highway, driving while intoxicated, leaving the scene of an accident, etc. BE TURNED LOOSE ON THE SPOT AND NOT BE DETAINED IN THE JUVENILE DETENTION CENTER pending the usual detention hearing.
2. The Legislature did not intend that the Courthouse remain open all night, seven days a week, in order to provide “record” information to authorities as to a juvenile’s background (for purposes of determining detention).
3. The Legislature did not intend that juvenile thugs who assault detention home employees, incite riots therein or otherwise become uncontrollable be RELEASED OUT OF THE DETENTION HOME TO HARASS SOCIETY, but that the Legislature still desires that such thugs to transferred to a county jail in order to maintain safe detention facilities for other detainees as well as to maintain law and order for all concerned.
4. That the juvenile social experiment referred to by the. United States Supreme Court in re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), while of some benefit to society, by and large as now constituted, is a national disgrace.
5. That it is probably unconstitutional as it deprives citizens (who happen to be young) of equal rights and equal protection under the law of the United States Constitution, such as jury trials, right to bail, a fair trial, etc.; and that as presently practiced, it needlessly permits some young thugs to trample upon the person and property of undefensible (sic) women, children and senior citizens.

It is therefore

ORDERED AND ADJUDGED that pursuant to the inherent authority of this Court and pursuant to the words “UNLESS OTHERWISE ORDERED BY THE COURT” (F.S. 39.032(2) set out in the new statute, this Court “IS OTHERWISE ORDERING” that henceforth all juveniles caught in the act of or arrested for committing any serious crime, may be detained in a detention home pending the usual detention hearing required by law irrespective of the opinions, rules or regulations of the Florida Department of Health and Rehabilitative Services. When considering whether or not an offense is serious, the opinion of the officer and the opinion of the victim shall be given great weight. The officer shall have the authority to override the Department should he feel it desirable to protect society from the juvenile or that it is in the best interest of the child. It is further

ORDERED AND ADJUDGED that any language in the new Act repealing, contradicting or conflicting with the language (F.S. 39.032(a)(2) authorizing the jailing of a juvenile thug, which language recites as follows:

“When the court determines, upon the recommendation of the superintendent of the detention home, that the child would be beyond the control of the detention home staff ... he may be confined to jail.”

be and the same is hereby declared unconstitutional because it is arbitrary, capricious, unworkable, inequitable, and because it violates the constitutional rights of the remainder of the citizenry to a free and safe society in which to live. See Aldana v. Holub, 381 So.2d 231 (Fla.). See also Section 21, Florida Declaration of Rights. The repealing language amounts to fostering upon the public a public nuisance and would result in excessive force being used to subdue the offending juveniles as well as subjecting confined cooperating children to physical danger if they refused to go along with “their peers.” This Court refuses to believe that, in the proper situation, the Legislature intended to release murderers, robbers, rapists, kidnappers, etc., from detention out into the streets just because they cannot be controlled in the detention center. (In passing, the Court would like to comment that it appears that this Act was approved by the Senate on June 4, 1980, by a vote of 99 yeas and 0 nays, thus causing the Court to believe that perhaps the Legislators sometimes don’t read, much less understand the laws that they pass in their hurry to adjourn and get home.)

This Court reserves jurisdiction of this matter for the purpose of making this Act comply with the constitutional law, with common sense, and with an eye of trying to improve the law and order in this community.

DONE AND ORDERED in Chambers at Fort Pierce, St. Lucie County, Florida, this 18th day of July, 1980.

/s/ PHILIP G. NOURSE PHILIP G. NOURSE, CIRCUIT JUDGE

We are aware of no authority by which a circuit court may issue an advisory opinion based on an oral request in a nonexistent legal proceeding. It has generally been held that courts do not have the power to give legal advice or opinions. Dobson v. Crews, 164 So.2d 252 (Fla. 1st DCA 1964), affirmed 177 So.2d 202 (Fla.1965); Collins v. Horten, 111 So.2d 746 (Fla. 1st DCA 1959). Furthermore, where an advisory opinion is sought the proceedings are not within the Declaratory Judgments Act, B.P.O.E. v. Dade County, 166 So.2d 605 (Fla. 3d DCA 1964). In State Department of Health and Rehabilitative Services v. Golden, 350 So.2d 344 (Fla.1976), a circuit court entertained a declaratory action by the State Attorney against the Division of Youth Services of the Department of Health and Rehabilitative Services. Although individual litigants were not involved, there were at least parties before the court. In the instant ease, the order is purely advisory and abstract. The only provision in Florida law for advisory opinions is in Article IV, Section 1(c) of the Florida Constitution. This authorizes the Governor to request the opinion of the Justices of the Supreme Court as to the interpretation of any portion of the constitution upon any question affecting his exclusive powers and duties. No other advisory opinions are authorized within the courts of Florida. The function of the courts should be limited to controversies between actual litigants. Here, the trial court issued the order upon the “oral request of various law enforcement officials.”

Our theory of government is that of separation of powers. The Legislature and not the court is responsible for legislating. It may well be time to drastically change the laws on juveniles. As a former circuit judge of the Juvenile Division, I also have several ideas about how I would like to drastically revise the “juvenile social experiment” referred to by the trial court. Judges of Courts cannot do so because we were not elected to the Florida Legislature.

The order below is hereby vacated.

ORDER VACATED.

ANSTEAD and MOORE, JJ., concur.

      . Courts have the inherent power to do all things that are reasonably necessary for the administration of justice within the scope of their jurisdiction. It has been said that courts have inherent power ... take appropriate action in cases of contempt, and to do various other things to maintain order and to function properly as a court. 20 Am.Jur.2d Sec. 7-9.


author: SCHEB, Chief Judge.

text:
    Curt F. FRIED, Appellant, v. Estelle R. FRIED, Appellee.
    No. 80-104.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1980.
    Rehearings Denied Dec. 2, 1980.

      Guión T. DeLoach and Don Batchelor, Bonita Springs, for appellant.
    Lawrence D. Martin of Vega, Brown, Nichols, Stanley & Martin, Naples, for ap-pellee.
   SCHEB, Chief Judge.

In dissolving this marriage of approximately two years duration between the husband, age 58, and the wife, age 57, the trial court denied the husband’s request for alimony and attorney’s fees. We find no abuse of discretion in the court’s denial of the husband’s request for alimony, and on that issue we affirm. On the issue of attorney’s fees, however, we reverse.

While the husband had no appreciable assets, he did have the capacity to earn a substantial income. Thus, the trial judge did not abuse his discretion in denying both rehabilitative and permanent alimony to the husband. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The purpose of awarding attorney’s fees in a dissolution of marriage proceeding is to insure that each party will reasonably have the same ability to secure competent legal counsel. Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977). Notwithstanding the husband’s capacity to earn a substantial income, he left the marriage with no appreciable assets and without the present ability to compensate counsel. The wife, on the other hand, had assets in excess of one million dollars and a substantial income. Consequently, the trial court abused its discretion in denying the husband’s motion for attorney’s fees. Peters v. Peters, 366 So.2d 512 (Fla. 2d DCA 1979); Sumner v. Tart, 362 So.2d 344 (Fla. 1st DCA 1978).

Accordingly, we reverse that part of the judgment denying the husband’s request for attorney’s fees. We remand with directions that the trial court enter an order awarding the husband reasonable attorney’s fees both for the services of his attorneys at trial and, pursuant to his motion, for services rendered in this appeal.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    HAROLD B. WILKINSON FARMS and Florida Farm Bureau Insurance Company, Appellants, v. Floyd BYRD, Appellee.
    No. SS-498.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 15, 1980.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for appellants.
    Michael H. Stauder of Pahokee, for ap-pellee.
   PER CURIAM.

The E/C appeals, contending the Judge of Industrial Claims erred in finding claimant suffered a compensable heart attack and in assessing penalties on unpaid benefits.

There is competent, substantial evidence to support the finding that the work activity engaged in prior to the onset of the heart attack was unusual strain or overexertion not routine to Byrd’s job. This particular work activity constituted a specific identifiable effort over and above claimant’s regular duties. Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978).

Appellee concedes error on Point II and we reverse.

Affirmed in part, reversed in part and remanded for correction on Point II.

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


author: ROBERT P. SMITH, Jr., Judge.

text:
    DEPARTMENT OF CORRECTIONS, Appellant and Cross-Appellee, v. Andrew J. ROSEMAN, Samuel Washington, Shirley Ann Bell and Anna Holden, Appellees and Cross-Appellants.
    No. UU-192.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 15, 1980.
    Jim Smith, Atty. Gen., and Gerald B. Curington, Asst. Atty. Gen., Tallahassee, for appellant and cross-appellee.
    Richard A. Belz and Diana B. McPherson, Gainesville, for appellees and cross-appellants.
   ROBERT P. SMITH, Jr., Judge.

The Department of Corrections appeals from DOAH hearing officer Tremor’s order in Section 120.54(4) proceedings holding that the Department’s proposed Rule 33-3.-13, Fla.Admin.Code, is an invalid exercise of delegated legislative authority in that it restricts fundamental constitutional rights of the affected citizens-inmates of the Florida prison system and the noninmates whom they wish to marry while still incarcerated-in the absence of a compelling state interest and therefore in violation of the due process and equal protection clauses of the Fourteenth Amendment. Other points are also raised, but the threshold issue is whether prison inmates such as appellees Roseman and Washington and non-inmates such as appellees Bell and Holden, who wish to marry Roseman and Washington, respectively, have a right to marry which is in constitutional terms a fundamental right, subject to restriction only in service of a compelling state interest and then only by means of the least restrictive alternative.

We hold that prison inmates have no fundamental right to marry and that noninmates have no fundamental right to marry inmates while they are yet in prison. Applying the less stringent standard appropriate for Fourteenth Amendment challenges to state action not impairing fundamental rights, we hold that the proposed Rule 33-3.13 has a rational basis in service of a legitimate state interest and that it is constitutionally valid. Neither is the Rule invalid on the other grounds asserted. We therefore affirm in part, reverse in part, and sustain the proposed Rule.

The proposed Rule prohibits marriage by inmates who are sentenced to death, inmates under life sentence who must serve at least 25 years before parole, and inmates who wish to marry other inmates or other prisoners as defined by Section 944.02(5), Florida Statutes (1979). Inmates not within those categories will be permitted to marry under the following circumstances:

(a) In the event of a current pregnancy where both the inmate and the proposed spouse acknowledge they are the expected parents of a child.
(b) To legitimize a child already born.
(c) If the inmate’s release date can be determined definitely to be within one (1) year and the inmate is a participant in the community release and furlough program.

The hearing officer’s order aptly frames the constitutional issue by these findings of fact:

(13) Testifying on behalf of the Department were various witnesses who were accepted as experts in the areas of prison functioning and administration; religion and marriage counseling as it pertains to inmates; psychological, emotional and mental health of inmates; and prison programs and inmate behavior in regard to rehabilitation. These witnesses gave testimony regarding the Department’s bases or rationale for the proposed rule in question. It was considered that the terms contained in the proposed rule were the only logical approach to a difficult social problem and that a completely open policy does not address the problem. The Department’s responsibilities include the protection of society from those who commit crimes. This responsibility is carried out by providing adequate security to others and by helping the inmate in the institutional and the noninstitutional setting. A part of the rehabilitation process includes instilling in the inmate a sense of responsibility for his actions. It was considered that, with the exception of the three circumstances wherein marriages are permitted under the proposed rule, there is no justification for an inmate to enter a marriage relationship while incarcerated. The presumptive benefits of marriage, according to one expert’s observations, do not accrue when one spouse is in an institutional setting, and a marriage created while the inmate is incarcerated can often have adverse effects with regard to rehabilitation. These effects include stress due to separation, a feeling of helplessness, a lowering of self-esteem and anxieties regarding children, finances, illness and unfaithfulness. From the testimony adduced at the hearing, it appears that a prime rationale for the proposed rule is the agency’s conclusion that a new marriage created in a prison setting with an incarcerated spouse lacks any tangible benefits. No studies were offered by any party as to whether marriages assist the rehabilitation of an inmate.
(14) The agency was also concerned with security problems which would surround the actual marriage ceremony. These problems included the pulling of security personnel from other posts or duties, the introduction of contraband from those outside, the shortage and high turnover of security and clerical personnel at the institutions, the distraction provided by the ceremony and the possibility of escapes. Other concerns of the agency included the financial costs involved for an open marriage program and the resulting detraction of funds for other programs. Another area of concern by the agency was an observed characteristic of prison inmates of being manipulative and conniving and the resulting victimization of the proposed or existing spouse.

Concerning these facts the hearing officer expressed the following conclusions:

Here, it appears from the testimony and exhibits adduced at the hearing that the prime basis upon which the challenged rule is grounded is the decision of the Department that the strained relationship which prisoners can enter to support a new marriage provides no tangible benefits to either the inmate or his proposed spouse, except under the three instances where marriage is permitted under the rule. Second to this, the agency has determined that inmate marriages would have substantial adverse impacts upon funds, security and rehabilitation. Do these reasons, when analyzed, provide a sufficient basis for denying inmates the right to marry while they are incarcerated except in the limited instances where there is an unborn or illegitimate child or when the inmate is in the last year of confinement?
Here, there appears to be no compelling connection between the agency’s almost total prohibition of marriage and its interest in security, deterrence or rehabilitation. While the efforts of the Department to produce and foster lasting and successful marriages is laudable, it is not the function of the Department of Corrections to regulate the relationship between two persons except as the regulation may relate to security, order, deterrence or rehabilitation. The security risk involved is certainly a legitimate concern. However, there are means other than prohibition available to the Department to avoid increased security risks and financial burdens upon the Department. These could include a limitation on the number and elaborateness of the ceremonies per week or month, and having the ceremonies performed in the visiting area on regular visiting days with regular visitation rules being applicable. The marrying parties could be required to pay all direct and indirect costs involved. No evidence was adduced tending to prove that a limited marriage rule acted as a deterrence from criminal acts. The evidence with regard to the rehabilitative effects of and future prospects for success of a marriage entered into during incarceration was tenuous at best. No studies in this realm were offered, and most of the opinion testimony from experts would be equally applicable to any relationship with an incarcerated or institutionalized person.

And the hearing officer entered the following summary conclusion:

In summary, it is concluded that the total prohibition against marriage by inmates except when one of three limited criterion is met constitutes an unnecessary intrusion into a basic fundamental right. There was no showing of a compelling state interest which could not be served in a less restrictive manner. While the Department may develop reasonable rules relating to the allocation of costs, time allotted and manner of conducting marriage ceremonies, it should not be permitted to prohibit one’s right to marry except in compelling circumstances. A restriction on an inmate’s fundamental right which furthers an important or substantial interest of penal administration is invalid if its sweep is unnecessarily broad. Procunier v. Martinez, 416 U.S. 396. A blanket prohibition against marriage with three limited exceptions constitutes an arbitrary and capricious act and is, therefore, invalid.

The marriage condition sought by these male inmates and to noninmate women whom they wish to marry, and who wish to marry them, is a marital condition without cohabitation, sexual intimacy, procreation, or child rearing. The state they seek is ceremonial-ceremony which we may assume would be as psychologically beneficial to some prisoners as it would be wrenching and tantalizing to others. Concerning the asserted right of prisoners and their chosen partners to marry in that ceremonial sense, a three-judge federal district court said in Johnson v. Rockefeller, 365 F.Supp. 377 (S.D.N.Y. 1973), aff’d sum nom. Butler v. Wilson, 415 U.S. 953, 94 S.Ct. 1479, 39 L.Ed.2d 569 (1974),

[W]e are here dealing with a situation where the basis of the challenge to state power is the mere formal ceremony of marriage. That ceremony has none of the elements of marital privacy which bring the marriage relationship under constitutional protection. See Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965).

For the reasons stated at length in Johnson, we decline to extend fundamental right status to marriage by state prisoners. See also Hudson v. Rhodes, 579 F.2d 46 (6th Cir.1978), cert. den., 440 U.S. 919, 99 S.Ct. 1241, 59 L.Ed.2d 470 (1979). The testimony of the Department’s witnesses, summarized by the hearing officer, reveals a rational basis for the Rule’s classifications and restrictions and that the Rule serves legitimate state interests in the security and discipline of its prisons and the control and management of its criminal offender prisoners. The question of whether restrictions on marriage are good or bad for prisoners in terms of rehabilitative or other penological objectives, being reasonably debatable, is without constitutional implication. See Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629, 640 (1977); Gluesenkamp v. State, 391 So.2d 192 (Fla. 1980), and cases cited p. 200.

We agree with the hearing officer that the Department has statutory authority to promulgate rules on the subject in question, Sections 20.315, 944.09, Florida Statutes (1970); that the estimate of economic impact accompanying the proposed rule satisfies Section 120.54(2)(a); and that the Department complied with the notice requirements of Section 120.54.

Insofar as the hearing officer’s order sustains proposed Rule 33-3.13 against appel-lees’ nonconstitutional challenges, it is AFFIRMED; insofar as it holds that Rule 33-3.13 offends the Fourteenth Amendment to the United States Constitution, the order is REVERSED.

BOOTH and SHAW, JJ., concur.