text:
    Michael E. LEWIS, Appellant, v. Linda F. LEWIS, Appellee.
    No. 78-1305.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      Larry Klein and Albert T. Sims, West Palm Beach, for appellant.
    Robert V. Romani of Farish & Farish, West Palm Beach, for appellee.
   DOWNEY, Judge.

The appellant seeks review of a final judgment of dissolution of marriage.

As a result of this twelve year marriage the parties had three children who were minors at the time of the final judgment. Both parties are college graduates. The wife was working as a part time teacher earning $154.00 every two weeks. The husband was employed by the State, earning $214.00 every week. During the course of the marriage the parties had acquired two pieces of jointly held residential real estate known as the “Pine Knob” and “West End” properties. The former is valued at approximately $24,000 net and the latter is approximately $18,000 net.

In the final judgment the court a) awarded custody of the three children to the wife together with $325 per month child support, b) required the husband to pay medical and dental expenses for the children, c) ordered the husband to maintain a $10,000 life insurance policy with the children named as irrevocable beneficiaries until they reach 18 years, marry, die or otherwise become self supporting, d) awarded the wife the Pine Knob property as lump sum alimony, e) ordered the husband to convey his interest in a Maverick automobile to the wife, f) ordered the West End property sold and the proceeds divided 60% to the husband and 40% to the wife, g) awarded the wife $3,000 attorneys fees and $300 costs. The husband contends it was error to award the wife the Pine Knob property as lump sum alimony, the Maverick automobile and attorneys fees. By cross appeal the wife assigns as error the 60/40 division of the proceeds of the West End property.

The Florida Supreme Court recently endeavored to bring some stability to the area of law dealing with alimony and the disposition of property in marriage dissolution cases. Canakaris v. Canakaris, 382 So.2d 1197, Fla.1980, involves a reexamination of the criteria and standards guiding the courts in a determination to award a particular form of alimony, be it lump sum, permanent, periodic or rehabilitative. There are indicators in Canakaris that many of the old strictures applied to alimony in general and lump sum alimony in particular, developed in the cases over the past several decades, have been either relaxed or eliminated. However, it is difficult to determine the extent to which the Court intended to go in this effort to clarify the law. With regard to lump sum alimony, the Court did not expressly recede from Cummings and Meridith , and yet, if this decision was intended to relax the rules applicable to lump sum alimony, the requirement that there be some positive necessity to justify such an award would no longer seem applicable.

In any event, we feel confident that the award of the Pine Knob property to the wife as lump sum alimony can be supported by either a liberal or conservative interpretation of Canakaris. Interpreting the decision in a most restrictive or conservative manner, we find in the record of this case the positive necessity for resorting to the lump sum award. The facts of this case clearly demonstrate the wife’s need for alimony. The husband, however, is not in a position to pay periodic or rehabilitative alimony as he earns only $214 per week. Simple arithmetic shows that after paying $325 per month in child support and meeting the other financial obligations imposed upon the husband by the final judgment, such as medical and dental expenses, insurance premiums, payment of debts, and attorneys fees, there is little enough left for alimony, let alone his own living expenses. On the other hand, he owns an undivided one-half interest in the Pine Knob property, which could be used to meet that alimony need. Under these circumstances appellant’s inability to meet his alimony responsibilities in any other way than through the lump sum variety constitutes the special circumstances necessary to support such an award.

Approaching the question from a more liberal view of Canakaris (a view we believe more nearly reflects the rationale of the decision) and reviewing the remedies utilized by the trial court as a whole rather than independently, we find the lump sum award is equitable and just. There is logic and justification for the result so that the trial judge’s exercise of his discretion passes the test.

Appellant suggests that the award of attorneys fees to the wife was error, primarily because she will ultimately have approximately $8,000 from the sale of the West End property. However, considering all of the circumstances of the parties, it would appear that the wife does not have the same ability to secure competent legal counsel as does the husband. In addition, as appellee contends, it may be the trial court felt a great deal of the work required to earn the attorneys fees was unnecessarily caused by the husband. In any event, as the court stated in Canakaris:

It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney’s fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings. 382 So.2d at 1205.

Finally, the appellant contends there is nothing “fair and equitable” about awarding to the wife the jointly owned car she operated during the marriage, while leaving the car used by the husband titled jointly. Oddly enough, in Blum, supra, the trial judge did exactly that and the Third District reversed, finding such a division “unfair and inequitable”. The Blum court recognized that, disposing of the automobiles, one to her and one to him under the circumstances of that case, was tantamount to a lump sum alimony award both ways, from husband to wife and wife to husband. Case law pre-dating Canakaris has condemned such a practice; however, the Third District’s liberal interpretation of Canakaris was relied upon for the authority to make such a property disposition, no doubt, “as part of an equitable distribution of the property to the parties”.

By cross appeal the appellee complains of the award to the husband of 60% of the proceeds from the sale of the West End property. We find that decision is supported by proof that the down payment came from a loan to the husband from his parents. The wife contests this claim but the trial court apparently believed the husband. The division of the proceeds is the only point raised on the cross appeal. No complaint is made regarding the order that the property be sold. Accordingly, we find no error in this regard.

In view of the foregoing, the judgment appealed from is affirmed in all respects except that the failure to award the LTD automobile to the husband is reversed. On remand that automobile should be awarded to the husband.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

LETTS, C. J., and ANSTEAD, J., concur.

      . See Judge Alan Schwartz’s opinion in Blum v. Blum, 382 So.2d 52, Fla. 3d DCA 1980.

      . Cummings v. Cummings, 330 So.2d 134 (Fla.1976).

        . Meridith v. Meridith, 366 So.2d 425 (Fla.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael ROGERS, Appellant, v. Paul MARKO, III, Appellee.
    No. 78-2568.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Joe Belitzky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th DCA 1975).

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


author: BERANEK, Judge.

text:
    Junious McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 79-705.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied June 18, 1980.
    Richard L. Jorandby, Public Defender, and Polly M. Shull, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the defendant from his conviction of two counts of aggravated assault. We affirm.

The facts are absolutely uncontested. A cashier in a grocery store observed appellant placing a piece of meat under his shirt. Appellant began to exit the store without paying for the merchandise. The cashier informed the manager of the market and another employee. These two employees followed the defendant out of the store, yelled at him, and began chasing him. Defendant obviously knew, that he was being pursued. Defendant stopped abruptly and threw the piece of meat under a car. He swung around with a knife in his hand and pointed it at the two store employees. The pursuers stopped. No one said anything. Defendant waited with the knife in his hánd, pointing it at the employees and waving it around. The employees began backing up. The defendant again turned around and began running. One of the employees then immediately returned to the store to call the police. The second employee continued following the defendant at a safe distance.

Appellant contends that the State failed to prove a necessary element of aggravated assault, namely, that the victims had a well-founded fear of imminent bodily injury. State v. White, 324 So.2d 630 (Fla.1976), clearly establishes the necessity for such proof. We find the facts here sufficient to create a very clear inference that the store employees had a well-founded fear of imminent bodily harm. Contrary to appellant’s argument, there is no requirement that the victim in an assault actually testify to his own state of mind. Indeed, the evidence here is rather compelling. The employees were pursuing the defendant when he whirled about and threatened them with a knife. He pointed the knife at them, waved it around and waited. The store employees stopped and began backing up. A jury could find that a reasonable man under such circumstances would be afraid and that these individuals were in fact in fear. We believe the rule to be correctly stated in Gilbert v. State, 347 So.2d 1087, 1088 (Fla.3d DCA 1977), as follows:

[Wjhere the circumstances were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown. See also Ponder v. State, 221 So.2d 437 (Fla.3d DCA 1969), and Solloa v. State, 227 So.2d 217 (Fla.3d DCA 1969).

The evidence here was sufficient to prove the element of fear on the part of the victims. The conviction is therefore affirmed.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    WESTMINSTER FOUNDATION, INC., Appellant, v. AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States Corporation, Appellee.
    No. 79-2144.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      John L. Britton of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Miami, for appellant.
    James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee.
   DOWNEY, Judge.

Westminster Foundation, Inc., filed an appeal seeking review of a non-final order of the trial court directing a Receiver to pay to Amerifirst Federal Savings and Loan Association “accrued net income” in the hands of the Receiver. We have treated the matter as a petition for Writ of Common Law Certiorari.

The litigation began when Amerifirst filed a complaint to foreclose a mortgage. Westminster asserted various defenses such as fraud, conspiracy, and estoppel. In addition, Westminster challenged the priority of Amerifirst’s mortgage. Amerifirst filed a motion requesting the court to order the Receiver to pay over to Amerifirst, as mortgagee, the monthly accrued net income of the property involved in this litigation. After an evidentiary hearing the trial court entered the order under consideration directing the Receiver to pay to Respondent the monthly accrued net income of $33,-885.00. Respondent was required to file a written guaranty wherein Respondent agreed that, in the event the final judgment ultimately entered in the cause was adverse to Respondent, it would repay any funds received pursuant to said order, together with interest “at one quarter of one percent above the rate set in weekly auction of U.S. Treasury Bills”.

We have not been favored with a transcript of the evidence adduced at the hearing on Respondent’s motion. Petitioner has furnished us with an appendix containing only three trial orders. However, the trial court found in the order being reviewed that Respondent is a financial institution with assets in excess of two billion six hundred million dollars. In addition, the trial court found Respondent had made a prima facie case for its claim to a first lien on the rents, issues, and profits accruing to the Receiver. Also, it appears the court concluded these monthly payments would be advantageous to Respondent without any corresponding detrimental result accruing to Petitioner.

Petitioner has failed to demonstrate any departure from the essential requirements of law. Accordingly, the Petition for Writ of Certiorari is denied.

BERANEK and MOORE, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Clarence H. ELLIS, Jr., d/b/a Ellis Realty, Appellant, v. CENTURY NATIONAL BANK OF BROWARD, Appellee.
    No. 80-144.
    District Court of Appeal of Florida, Second District.
    May 21, 1980.

      Steven C. Sweet of John T. Allen, Jr., P. A., and John T. Allen, Jr. of John T. Allen, Jr., P. A., St. Petersburg, for appellant.
    Eurich Z. Griffin of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for appellee.
   GRIMES, Chief Judge.

Appellant filed suit against the Century National Bank of Broward in the Circuit Court for Pinellas County seeking damages for breach of a brokerage contract. The bank then filed a motion to transfer venue to Broward County, maintaining that all of its offices are in Broward County and that federal law requires that a plaintiff who is suing a national bank in a state court bring his action against the bank in the county in which it is located. The court agreed with the bank’s position and ordered the action transferred to Broward County.

On appeal, appellant argues that because the bank had previously loaned money and accepted mortgages on property lying within Pinellas County it in effect had a branch office located there. We reject appellant’s contention. Since the record clearly demonstrates that the bank maintains offices only in Broward County, we hold that venue lies in that county. Citizens & Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977); 12 U.S.C. § 94 (1976).

Appellant also challenges the part of the court’s order in which the court ruled “that the defendant recover its costs in transferring this action to Broward County from the plaintiff in an amount to be determined by the Court at a later date.” Appellant points out that the bank did not request the taxation of costs in its motion for change of venue or in a separate motion and did not refer to the matter at the hearing on the venue motion. Under the circumstances, we interpret the court’s order only to require appellant to pay the Broward County filing fee. As construed, the order transferring venue is

AFFIRMED.

SCHEB and CAMPBELL, JJ., concur.


author: MILLS, Chief Judge. BOOTH, Judge,

text:
    SPERRY REMINGTON OFFICE MACHINES and Liberty Mutual Insurance Company, Appellants, v. Theodore M. STELLING, Appellee.
    No. QQ-223.
    District Court of Appeal of Florida, First District.
    May 22, 1980.
    Wendell J. Kiser and Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney & Adler, Orlando, for appellee.
   MILLS, Chief Judge.

Sperry Remington Office Machines, the employer, and Liberty Mutual Insurance Company, the carrier, appeal from an order of a Judge of Industrial Claims, raising the following points:

I. The Judge of Industrial Claims erred in finding that the claimant reached maximum medical improvement on August 9, 1977.
II. The Judge of Industrial Claims erred in ordering the employer/carrier to pay the claimant for permanent total disability in that the employer/carrier had voluntarily accepted that degree of permanent disability.
III. The Judge of Industrial claims erred in finding the claimant’s attorney entitled to a fee.
IV. The Judge of Industrial Claims erred in finding that $14,000.00 represented a reasonable fee for the claimant’s attorney.
V. The Judge of Industrial Claims erred in admitting into evidence •correspondence concerning proposed settlement negotiations between the parties.
VI. The Judge of Industrial Claims erred in finding the claimant’s attorney to be entitled to reimbursement of costs.

We affirm on Points I, III, and V, and reverse on Points II, IV, and VI.

The Judge recited the following facts relevant to this appeal:

“The claimant was injured on June 6, 1974 and timely notice of the accident was given to the proper parties. At the time of his injury claimant’s average weekly wage was $173.36, making his compensation rate $80.00 per week. Medical treatment and compensation payments were begun. Claimant made several attempts to return to work but has not worked since September, 1974. Claimant has been treated by a number of physicians for his back injury and evaluated by several other doctors including Dr. Goldner and his staff at Duke University Hospital. Claimant also had a psychiatric evaluation by Dr. Rodman Shippen and at Duke University Hospital, and has been receiving treatment by a psychologist, Edmund S. Bartlett, Ph.D. “On October 1,1975 the employer/carrier notified claimant by letter that they were accepting 20% permanent partial disability of the body as a whole effective September 25, 1975, based on a 20% anatomical rating by Dr. Young and concurred in by Dr. Stanford. The first payment on the 20% rating was made October 7,1975. On February 28, 1978 the employer/carrier offered to settle his case with the claimant but the claimant refused to settle and advised the carrier that he felt that he was 100% disabled.
“The claimant engaged the services of Irvin A. Meyers, Esquire, and on February 28, 1978 claim was made for permanent total disability benefits, and on May 17, 1978 application for hearing on permanent total disability or permanent partial disability benefits was made. Hearing on this claim was scheduled before the undersigned for July 13, 1978. On July 10, 1978 the attorney for the employer/carrier filed a motion for continuance of this hearing, which motion was granted, and hearing rescheduled to August 14, 1978. On July 14, 1978 the employer/carrier filed motion for compulsory rehabilitation evaluation. Both of these motions were granted. Subsequent to these evaluations and on August 12,1978 claimant’s attorney received a telephone call at his home advising him that the employer/carrier was accepting the claimant as being permanently and totally disabled.”

Another relevant fact is that on August 9, 1977, Dr. Shippen wrote the carrier and stated that from a psychiatric viewpoint Stelling’s prognosis was guarded and he recommended a lump sum settlement, noting that psychotherapy was not indicated at that time. Omitted from the order was the fact that on November 20, 1975, the employer-carrier began temporary total disability payments and continued those payments until it “voluntarily accepted” Stell-ing as permanently totally disabled.

There is substantial competent evidence to support the finding of the Judge on the maximum medical improvement date. Although there was conflicting evidence on this point, the Judge not only specifically, noted which expert’s opinion he accepted and which he rejected, he specified his reasons.

The second point on appeal reveals only a technical error by the Judge. The order directs the employer-carrier to “pay claimant for permanent total disability from his date of maximum medical improvement . . . and continue to pay him on this basis for as long as he remains permanently and totally disabled.” Since the employer-carrier voluntarily accepted claimant as being permanently totally disabled before the hearing and there was, therefore, no controversy between the parties on that point, the Judge should not have entered this adjudication. Broward Vending, Inc. v. Harrison, IRC Order 2-2821 (July 23, 1975) [9 FCR 266]. The transcript of the hearing reveals that the Judge did not view his order as constituting an adjudication, but we agree with the employer-carrier that the order does adjudicate and that this provision must be stricken.

The employer-carrier’s contention that the attorney was not entitled to a fee because of its “voluntary acceptance” is without merit. As stated in Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970), and cited recently by this Court in C & S Packing Co. v. Driggers, Case No. QQ-427, opinion filed April 18, 1980, not yet reported:

“An employer who does not exercise his right to investigate, and who forces the burden of proving liability on the claimant to the extent the claimant requires assistance of an attorney for depositions or other actions, is not protected from payment of attorneys’ fees by ignorance resulting from failure to investigate liability!”

The facts of this case show such failure to investigate and accept the claim and we agree with the Judge’s ruling that the attorney was entitled to a fee.

There is error, however, in the determination of the amount of the fee to be awarded. The Judge’s order reveals that he failed to note the carrier’s payment of temporary total disability from November 20, 1975, forward. He asserts in paragraph (5)(a) that “. . the claimant would have received no benefits in addition to the 20% permanent partial disability benefits accepted if he had not been represented. . ” and in paragraph (5)(b) in considering the benefits resulting to the claimant, he excludes the value of the 20% permanent partial disability rather than the temporary total disability. We find no error concerning the other factors considered by the Judge in setting the fee and challenged by the employer-carrier here.

We recognize that it is generally true that correspondence concerning settlement negotiations is not admissible, but it was properly admissible under the circumstances here. By the time of the hearing, the employer-carrier had accepted Stelling as being permanently totally disabled; thus the degree of disability was no longer at issue. The correspondence offered had probative value as to the question of whether or not the carrier had insulated itself from medical information and had failed to investigate the claim in a timely manner.

Finally, for the reasons stated on Points I and IV, we affirm the determination that Stelling’s attorney is entitled to reimbursement for taxable costs. There is, however, no evidence to support any determination as to the amounts incurred. Thus, it is necessary to reverse as to the allocation of costs and to remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

McCORD, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: BASKIN, Judge.

text:
    Maria L. MARTINEZ, Appellant, v. Julio C. MARTINEZ, Appellee.
    No. 79-1759.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 18, 1980.

      Albert P. Rosillo, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Hacker & Matters, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

This appeal seeks review of a post-judgment order modifying the settlement agreement (which had been incorporated into the final judgment of dissolution) and requiring the wife to reimburse the husband for certain overpayments of alimony, child support, and other monies. The trial court abused its discretion in modifying the settlement agreement and in requiring the wife to refund monies voluntarily paid by the husband. We, therefore, reverse as to both aspects of the order.

In 1975, the marriage of the parties was dissolved by a judgment which incorporated a settlement agreement. Paragraph number five of this agreement reads as follows:

The HUSBAND shall be responsible for the support of the two (2) minor children of the parties . . . until said children reach majority, become- emancipated or otherwise become selfsupporting. The HUSBAND agrees to pay for the support of the two (2) minor children the sum of . ($250.00) per month per child. Said sum may be augmented by the HUSBAND based upon his increased earnings or ability to pay. Additionally, the HUSBAND agrees to pay for the college and/or professional education of either or both of the two (2) children should the need and abilities of the children dictate. The HUSBAND shall be entitled, as long as said support is furnished to each child, to claim either child or both children, as the case may be, as dependents for income tax purposes. .

The daughter, the younger of the two children, wished to attend college and had, in fact, been admitted to the University of Miami. The father refused to pay for the child’s education. The mother filed a motion for clarification of the foregoing provision of the settlement agreement along with a motion for contempt for failure to pay child support. Particularly, she asked the court to determine whether expenses related to the child’s higher education, such as room and board, books, tuition, etc., were contemplated by the language of the agreement. The husband responded to these motions and countered with a petition for modification of the property settlement agreement as well as reimbursement for certain alleged overpayments of alimony and child support.

After a hearing on the various motions, the trial court ordered a modification of the property settlement agreement to the extent that “if the daughter of the parties wishes to attend college, she may attend Miami Dade Community College and the expense attended [sic] therewith shall be borne equally by the parties until she reaches the age of eighteen (18) years.” In reaching this conclusion, the trial court stated it was modifying the agreement because the husband had overpaid the wife in other payments. The trial court then proceeded to order the wife to refund these overpayments.

i

Addressing the portion of the order concerning college expenses first, we find that the provisions of the settlement agreement clearly require the husband to pay for the daughter’s college education at a standard four-year institution. The court may not remake an agreement between the parties. Rubio v. Rubio, 347 So.2d 1093 (Fla.2d DCA 1977); Howell v. Howell, 164 So.2d 231 (Fla.2d DCA 1964).

The husband argues that the first portion of the support provision terminating the husband’s responsibility for the support of the children when they reach their majority applies to the second portion of the support provision so that the father’s responsibility for providing a college education ends when the children celebrate their eighteenth birthdays. If there is any ambiguity in the provision, the provision will be interpreted in accordance with the best interests of the children concerned. Reinhardt v. Reinhardt, 131 So.2d 509 (Fla.3d DCA 1961). Properly construed, this property settlement agreement evidenced the intent of the parties; that is, to provide a college education, for the children. See Kern v. Kern, 360 So.2d 482 (Fla.4th DCA 1978). The Kern court, although holding that there was no duty on the part of the parent to provide a college education for his child, expressly noted that it in no way intended to limit the power of a court to enforce a “stipulated-to agreement between the parties of a dissolution proceeding.” Kern v. Kern, supra at 486 n.6.

The court may not remake an agreement between the parties, and it may not modify the child support aspects of a settlement agreement incorporated into a final judgment of dissolution absent a showing of a change in circumstances of the parties. Frizzell v. Bartley, 372 So.2d 1371 (Fla.1979); White v. White, 338 So.2d 883 (Fla.3d DCA 1976); and Hagen v. Hagen, 308 So.2d 41 (Fla.3d DCA 1975). The trial court said it was modifying the agreement because the husband had previously overpaid the wife in connection with other obligations. This' finding does not meet the standard of changed circumstances required by law.

II

The portions of the order requiring the wife to refund certain monies to the husband include four separate parts: (1) return of alimony overpayments, (2) refund of child support paid while the children were staying with the husband, (3) refund of child support paid after the child reached his majority, and (4) reimbursement of monies paid by the husband against credit card charges of the wife.

(1) The husband is not entitled to a refund of overpayments of alimony where the overpayments were voluntarily made and not contemplated as a loan from the husband to the wife. The husband is obligated to pay the specified amounts according to the terms of his judgment of dissolution and should not be permitted to vary those terms to suit his convenience without the agreement of the other party. Hubshman v. Hubshman, 379 So.2d 670 (Fla.4th DCA 1980) citing Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969).

(2) The husband is not entitled to reimbursement for child support paid while the children were living with him but while the mother still had legal custody. Patterson v. Patterson, 348 So.2d 592 (Fla.1st DCA 1977). In the Patterson case, the husband had not paid child support while the children were residing with him, and that court held there were strong equitable reasons for not holding him in contempt under the circumstances. However, the Patterson court specifically stated that the legal obligation to pay child support would terminate only upon the filing of the petition for modification of the judgment. In this case, there was no alteration of the legal obligation and the equitable considerations must favor the wife. The child support payments were made to her even though the children were not living with her. She had no reason to presume that the money paid would have to be repaid. See generally Tash v. Oesterle, 380 So.2d 1316 (Fla.3d DCA 1980).

(3) The father cannot seek reimbursement of a pro rata share of child support paid after one of the children attained his majority. As was noted in Tash v. Oesterle, supra, and Jelke v. Jelke, 233 So.2d 408 (Fla.3d DCA 1970), child support payments in excess of those required by the final judgment of dissolution tend to show that a parent recognizes increased needs of the child. In this case, continuing the payments tends to show the father’s recognition of the son’s continuing need for financial assistance. There was no evidence that the monies were paid on the understanding that it was merely a loan and would have to be repaid. The equitable considerations preclude an order requiring the wife to refund these sums.

(4) The portion of the order requiring the wife to reimburse the husband for payments made on credit card balances is error. There was insufficient evidence before the trial court to establish the husband’s right to a refund.

The decision of the trial court is reversed, and the cause is remanded for a determination as to the extent of related college expenses within the contemplation of the parties at the time the agreement was entered into and for other proceedings consistent with this opinion.

      . Since the child who wishes to attend college has attained her majority during the pendency of these proceedings, we note that the child should proceed on her own behalf. Kern v. Kern, 360 So.2d 482, 485 (Fla. 4th DCA 1978).


author: COBB, Judge.

text:
    Udell Shirley STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 00-288/T1-123.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

As the result of a police investigation into the sale of stolen property, a police investigator saw the appellant in possession of a .38 revolver that the investigator thought was made by Smith & Wesson. The investigator signed an affidavit in support of a search warrant that included a .38 Smith & Wesson revolver in the list of items sought to be seized. The search warrant reflected the items to be seized in the manner that they were listed in the affidavit.

As a result of the search and seizure, the appellant was arrested and charged by an Information with possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1977), in that he had a .38 Smith & Wesson revolver on September 1,1978. Appellant requested a continuance and waived his right to a speedy trial pursuant to Florida Rule of Criminal Procedure 3.191.

The case came up for trial. After the jury was sworn in, the state moved to amend the information to reflect that the revolver involved was actually a .38 Dan Wesson. The trial court denied the motion. But see Lackos v. State, 326 So.2d 220 (Fla. 2d DCA 1976); Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978), cert. den., 367 So.2d 1124 (Fla. 1979); Richardson v. State, 251 So.2d 570 (Fla. 4th DCA 1971). The state subsequently nolle prossed that charge.

Appellant was then charged by a second Information with possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1977), in that he had a .38 Dan Wesson revolver on September 25, 1978. Appellant filed a motion to suppress the evidence, a motion for discharge, and a motion to dismiss. The trial court denied all three motions. Appellant pled nollo contendere, specifically reserving his right to appeal the trial court’s rulings on those motions. The trial court adjudicated appellant guilty as charged in the second information.

Appellant’s motion to suppress was based on the fact that the search warrant listed the .38 Dan Wesson revolver as a .38 Smith & Wesson revolver. However, a technical error in a description is not automatically fatal to the validity of a search warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Rytman, 475 F.2d 192 (5th Cir. 1973).

Appellant’s motion for discharge alleged a violation of Florida’s speedy trial rule. Appellant argues that the speedy trial time on the charge contained in the second information was started by his arrest on the charge contained in the first information. However, either the two charges arose from the same criminal conduct or episode or else they did not. If they did, then appellant’s waiver of speedy trial for the first charge was also a waiver for the second charge. State v. Boyd, 368 So.2d 54 (Fla. 2d DCA 1979); Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978); State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976). If they did not, then the arrest of the appellant on the first charge did not constitute his arrest on the second charge. Either way, there was no violation of the speedy trial rule.

Appellant’s motion to dismiss alleged a double jeopardy violation in that the second charge was really for the same offense as the first charge. Since appellant previously argued against allowing the state to amend its information to change Smith & Wesson to Dan Wesson, he is now estopped from arguing that such a change was immaterial. State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. den., 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975).

Accordingly, we AFFIRM.

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


author: NESBITT, Judge.

text:
    Lilyan WEISSBERG and Sidney Weissberg, Appellants, v. CITY OF MIAMI BEACH, Southern Bell Telephone and Telegraph Company, Appellees.
    Nos. 78-2095, 79-1929.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Stabinski, Funt, Levine & Vega, Miami, and Regina F. Zalonker, for appellants.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   NESBITT, Judge.

The issue raised in this appeal is the scope of sovereign immunity of a municipality. Mrs. Weissberg was involved in a two-car accident at the intersection of Sixteenth Street and Lennox Avenue in Miami Beach. At the site, Southern Bell Telephone Company was working on its line through an open manhole. Visibility at the intersection was obscured by Southern Bell’s equipment. The city of Miami Beach regularly requires a utility to employ a uniformed, off-duty city policeman selected in rotation from a roster for the purpose of directing traffic around a worksite. The officer’s salary is paid on an hourly basis by the utility company. In conformity with this practice, a Miami Beach policeman had been dispatched to direct traffic at this intersection. At the time of the particular accident, the officer was not directing traffic but was resting in the shade on the side of the road.

Mrs. Weissberg, joined by her husband for his derivative claim, brought suit for damages' against both the City of Miami Beach and Southern Bell Telephone Company. The trial court granted summary judgment in favor of the city prior to the Supreme Court’s decision in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), apparently on the doctrine that municipalities were under no special duty to provide special police protection to those in situations similar to Mrs. Weissberg’s. In Commercial Carrier, the Supreme Court determined that the “general duty”-“special duty” dichotomy has been abrogated by the waiver of sovereign immunity by the state, its agencies, or subdivisions.

The city attempts to sustain the judgment here with the contention that the decision to place a police officer to direct traffic at that particular location involved a planning function. Utilizing the test' of Commercial Carrier, we reject this contention because we see no difference between malfunctioning traffic devices, which were involved in Commercial Carrier, and an inattentive police officer whose failure to regulate and direct the flow of traffic may have led to this accident. Since the procedure had been established to provide police officers to direct traffic at the worksite of a utility, the failure to ensure that a traffic device is functioning properly is no different than to ensure that the officer assigned will properly carry out his function of directing traffic. Both are simply operational level activities.

Accordingly, the summary judgment and the cost judgment entered in favor of the city are reversed and the cause remanded for further proceedings.

      . § 768.28, Fla.Stat. (1977).


author: DANIEL PEARSON, Judge.

text:
    Eve POSTELL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1376.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.

      Ellis Rubin, Naples, and Charles H. Sinclair, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, SCHWARTZ and DANIEL PEARSON, JJ.
   DANIEL PEARSON, Judge.

Eve Posted, a thirteen-year-old female, was, along with four of her peers, charged by grand jury indictment with first-degree murder, burglary and robbery. Upon conviction of second-degree murder, burglary and robbery, she was sentenced to substantial terms of imprisonment in the State Penitentiary. She challenges her conviction on the ground that her oral and videotaped confessions given at the station-house within several hours of her arrest, were wrongfully admitted at trial, having been procured in violation of her right to counsel and privilege against self-incrimination. The underpinning of this contention is that Posted did not understand and therefore did not intelligently waive her rights under Miranda v. Arizona to remain silent and to consult with an attorney. The fact that the confessions were made by a juvenile does not render the confessions ipso facto involuntary. Voluntariness is determined by taking into account the “totality of circumstances,” and the age of the confessor is merely one of these circumstances. State v. Francois, 197 So.2d 492 (Fla.1967); Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977); T. B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975). The trial court found a knowing and intelligent waiver by Postell, and its finding is supported by substantial competent evidence. Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977); Gibbs v. State, 344 So.2d 621 (Fla. 3d DCA 1977); Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975).

We turn now to Postell’s challenge to her sentence. Postell claims that she fulfilled all requirements for sentencing under the Florida Youthful Offender Act, Sections 958.011 et seq., Florida Statutes (Supplement 1978), and that, therefore, it was mandatory for the trial court to employ the Act’s more lenient sentencing provisions and error for the trial court to impose the more severe adult sentence. Since we find that Postell was not eligible to be classified as a youthful offender, we leave for another day the decision whether the sentencing benefits of the Youthful Offender Act must be accorded to one who meets the, eligibility requirements of Section 958.04(1), Florida Statutes (Supplement 1978), and is not disqualified under Section 958.04(2), Florida Statutes (Supplement 1978).

The pertinent provisions of the act are: “958.04 Eligibility for youthful offender; classification.—
“(1) The court may classify as a youthful offender any person:
“(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39 ;
“(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if -such crime was committed before the defendant’s 21st birthday; and
“(c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
“(2) A person shall be classified a youthful offender if such person meets the, criteria of subsection (1) and such person:
“(a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
“(b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.”
(emphasis supplied).

The trial court found that Postell was ineligible under subsection (c) of Section 958.04(1), supra, to be classified as a youthful offender for the reason that a weapon was obtained in the house of the victim during the commission of the burglary, elevating that offense from a first-degree felony to a life felony under Section 775.-087(1)(a), Florida Statutes (1977). While we agree Postell was ineligible to be classified as a youthful offender, the reason advanced by the trial court was clearly wrong under Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979).

“Burglary of a dwelling is normally a felony of the second degree, but Section 810.02(2)(b), Florida Statutes (1977), makes it a felony of the first degree when the perpetrator is armed or arms himself during the burglary. Thus, the jury properly found appellant guilty of burglary while armed. The judge then applied Section 775.087(l)(a), Florida Statutes (1977), to reclassify the appellant’s crime as a life felony, because a firearm was involved. That section, however, specifically states that it does not apply to a ‘felony in which the use of a weapon or firearm is an essential element . .’ Accordingly, since use of a firearm was an essential element of burglary while armed under Section 810.-02(2)(b), the judge misconstrued the application of Section 775.087(l)(a) to appellant’s conviction for that crime.” Fowler v. State, supra, at 880 (footnotes omitted).

Moreover, the only evidence adduced concerning the weapon was that one of Postell’s co-defendants found the gun in a suitcase in the victim’s house and placed the gun inside his belt. There was no evidence that Postell herself ever possessed this gun. It has been held that the minimum mandatory sentencing provisions of Section 775.087(2), Florida Statutes (1977), are not applicable in the absence of proof that the defendant personally, not vicariously or constructively, possessed the weapon during the commission of the crime involved. Earnest v. State, 351 So.2d 957 (Fla.1977); Johnson v. State, 349 So.2d 1190 (Fla.1977); McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978); Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977). We are of the view that the enhancement provisions of Section 775.087(1), Florida Statutes (1977), a fortiori require that the defendant personally possess the weapon during the commission of the crime involved.

However, a correct ruling of a trial court will be sustained regardless of the incorrect reasons assigned for the ruling. Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla.1961); Green v. Bruns, 102 So.2d 610 (Fla.1958); Moore v. City of St. Petersburg, 281 So.2d 549 (Fla. 2d DCA 1973); Leavstrom v. Muston, 119 So.2d 315 (Fla. 3d DCA 1960). Postell was, in fact, ineligible for classification as a youthful offender because she did not meet the separate requirement of subsection (a) of Section 958.04(1), that is, she was not a person “. . . who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39 . . .” (emphasis supplied).

A child who is indicted by a grand jury for an offense punishable by death or life imprisonment is not a child who is transferred within the purview of Chapter 39, Florida Statutes.

Section 39.02(5)(c), Florida Statutes (Supplement 1978), provides:

“A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set forth in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury. When an indictment is returned, the petition for delinquency, if any, shall be dismissed and the child shall be tried and handled in every respect as if he were an adult. . (emphasis supplied).

The return of an indictment against a child divests the juvenile court of jurisdiction. State v. N. B., 360 So.2d 162 (Fla. 1st DCA 1978). The indicted child awaiting trial, if not otherwise eligible for release on bail, must be incarcerated in an adult facility. State ex rel. Powers v. Schwartz, 355 So.2d 460 (Fla. 3d DCA 1978). The indicted child is, upon conviction, subject to the adult minimum sentencing provision of Section 775.087, Florida Statutes. Ringel v. State, 366 So.2d 758 (Fla.1978). As the statute so plainly says, the indicted child is to be “handled in every respect as if he were an adult.” .

In contrast, the child who, after a waiver hearing, is transferred by the juvenile court for adult prosecution retains the right to be sentenced as a child. Section 39.02(5)(a), Florida Statutes (Supplement 1978), provides:

“If the court finds, after a waiver hearing, that a child who was 14 years of age or older at the time the alleged violation was committed and who is alleged to have committed a violation of Florida law should be charged and tried as an adult, then the court may enter an order transferring the case and certifying the case for trial as if the child were an adult. The child shall thereafter be subject to prosecution, trial, and sentencing as if the child were an adult but subject to the provisions of s. 39.111(6).” (emphasis supplied).

See Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979), and Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979) (holding that a child who has been transferred after a waiver hearing is exclusively subject to the sentencing provisions of Chapter 39). Since the Legislature in Section 39.02(5)(a), supra, chose to make available to waived juveniles the favorable sentencing provisions of Section 39.111(6), and omitted such a clause in Section 39.02(5)(c), we discern its intent to be that the indicted juvenile be sentenced as an adult. Any other holding would produce the anomalous result that a child in-dieted for an offense punishable by death or life imprisonment would be subject to youthful offender sentencing only, whereas a child waived and transferred for adult prosecution could under certain conditions be sentenced as an adult. See § 39.111(6)(c) and (d).

We have previously noted that the language of Section 39.02(5)(c), Florida Statutes, is clear.

“The above statute needs no elaborate interpretation; it means exactly what it says. A circuit court is without authority to treat an indicted juvenile under the protective provisions of Chapter 39, Florida Statutes (1975). Such a juvenile must be treated pre-trial as an adult in every respect including the setting of terms for bail or release or confinement.” State ex rel. Powers v. Schwartz, 355 So.2d 460, 461 (Fla. 3d DCA 1978).

We now add another “respect” in which a child indicted for an offense punishable by death or life imprisonment will be treated as an adult — such a child is rendered ineligible for classification and treatment as a youthful offender.

Affirmed.

      . The court imposed concurrent 99-year terms on the murder and burglary and a consecutive 15-year term on the robbery.

      . Postell’s separate contention that her confessions were involuntary because her mother, present with Eve at ali times during questioning, told her to “tell the police everything,” deserves little discussion. See Anglin v. State, 259 So.2d 752 (Fla. 1st DCA 1972) (where the court upheld a juvenile’s confession despite his mother’s exhortation to' tell the truth or she would “clobber” him). If anything, the mother’s presence tended to assure that no coercive police behavior would occur. See Vasil v. State, 374 So.2d 465 (Fla.1979); Hallihan v. State, 226 So.2d 412 (Fla. 1st DCA 1969).

      . The warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were given to her preceding each confession.

      . Postell’s counsel suggested that her lack of intelligence and understanding was evidenced by her responses to the Miranda warnings. The 35-minute videotaped confession, which this court fully reviewed, showed that a full ten minutes were spent discussing Postell’s rights; that thereafter Postell, without interrogation, gave an uninterrupted narrative of the crimes; and that the remaining time was spent going over what she had narrated. At no time was an answer suggested to her. Postell is literate, but uses a street patois often difficult to understand. The trial court’s conclusion that she knowingly and understandingly waived her Miranda rights was amply supported by the evidence.

      . The maximum term of custody which can be imposed under the Florida Youthful Offender Act is six years, not more than four of which can be in the form of imprisonment. § 958.-05(2), Fla.Stat. (Supp.1978). The court may also impose a minimum term of one-year imprisonment without parole eligibility if certain aggravating factors are found to exist. § 958.-05(3), Fla.Stat. (Supp.1978).

      . The Fourth District Court of Appeal recently held that the Florida Youthful Offender Act must be utilized where the defendant meets all eligibility requirements. State v. Pizarro, 383 So.2d 762 (Fla. 4th DCA 1980) (Case No. 78-2793, opinion filed January 23, 1980).

      . Section 775.087(1) requires that the defendant carry, display, use, threaten or attempt to use the weapon or firearm; Section 775.087(2) requires that the defendant have in his possession the firearm.

      . Postell’s argument that an indictment is a “transfer” must hinge entirely on a single imprecise use of the term “transfer" in Section 39.02(5)(d): “Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, indictment, or information . .” When the Florida Juvenile Justice Act is read in its entirety, Postell’s argument fails. See, e. g., discussion of comparison between Section 39.02(5)(a) and Section 39.02(5)(c), supra; and see Section 39.02(6), which provides for sentencing as a juvenile for a child who “has been transferred for criminal prosecution as an adult," which under Section 39.02(5)(a) is only applicable to a child who has been waived.


text:
    Lawrence SHUPNICK, Appellant, v. PERSHING AUTO LEASING, INC., Appellee.
    No. 79-1458.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellant.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Patricia M. Silver, Miami Beach, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Lawrence Shupnick, plaintiff in the trial court, appeals a $7,200 judgment entered in his favor following a non-jury trial in this action for breach of contract.

In consideration of Shupnick’s efforts in obtaining for the defendant Pershing Auto Leasing (Pershing) the auto leasing concession at the then Four Ambassadors Hotel, Pershing executed a letter agreement on July 13, 1967, which provided inter alia that Pershing would furnish Shupnick the use of two new and fully insured and serviced Cadillacs a year for as long as Pershing maintained the auto leasing concession. Subsequently, Pershing became a wholly owned subsidiary of Pershing Industries, Inc. which on May 14, 1969 entered into a stock transfer agreement with Shupnick. In consideration of Pershing Industries’ execution of this agreement, Shupnick on July 7, 1969 executed a general release with respect to the 1967 letter agreement. Thereafter, difficulties between the parties arose over the May 1969 agreement and Shupnick filed suit to rescind this agreement. On November 5, 1974, a final judgment was entered rescinding the 1969 transfer agreement. The judgment was affirmed on appeal by this court which denied rehearing on February 11,1976. See Pershing Industries, Inc. v. Shupnick, 325 So.2d 410 (Fla.3d DCA 1976). Subsequent thereto Pershing, which ceased to be- a wholly owned subsidiary of Pershing Industries, Inc., was sued for breach of contract by Shupnick who alleged that since April 1973 Pershing failed to furnish him with the Cadillacs pursuant to the terms of the 1967 agreement. Pershing defended on the ground that Shupnick had executed a release in July 1969 with respect to the 1967 agreement. Both parties moved for summary judgment and the trial court entered judgment for Pershing. Shupnick appealed. This court reversed and held that the release was invalid because the May 1969 agreement which provided the consideration for the release was rescinded. The cause was then remanded to the trial court which entered a partial summary judgment as to liability against Pershing for breach of the 1967 agreement for the period of time from February 11,1976 (the date that this court’s opinion affirming the judgment of rescission became final). Following a non-jury trial, a final judgment for $7,200 was entered for Shupnick who perfected this appeal.

In his first two points on appeal, Shup-nick basically argues that the trial court erred in determining that he could recover damages from Pershing only from February 11,1976, the date this court’s affirmance of the judgment of rescission in Pershing Industries, Inc. v. Shupnick, supra, became final. We find this argument well taken.

The established law is that on af-firmance by the District Court of Appeal, a final judgment of the trial court becomes the judgment of the District Court of Appeal. Lang v. Lang, 293 So.2d 721 (Fla. 3d DCA 1974). In the case at bar, the court affirmed the judgment of rescission entered by the trial court on November 5, 1974, which then became the judgment of this court. Further, when the 1969 transfer agreement was rescinded on November 5, 1974, so was the release and at that time the 1967 agreement once again became viable and enforceable. We, therefore, find that the damages should be computed from November 5,1974, the date of the judgment of rescission.

Shupnick also argues that the court erred in permitting an officer of Pershing to testify about an alleged agreement between the parties as to the value of the Cadillacs.

This agreement was never produced and we conclude that such testimony was not admissible to vary the terms of the 1967 letter agreement which was the complete and total agreement between the parties. See O’Neal v. First Fed’l Savings and Loan Assoc., 328 So.2d 470 (Fla. 4th DCA 1976). Only evidence as to the value of two new and fully insured and serviced Cadillacs per year for the stated period is permissible.

Finally, Shupnick urges as reversible error the trial court’s failure to award interest.

The claim in the instant case being an unliquidated claim, we find no merit in this contention. See 18A Fla.Jur. Interest § 3 (1971) and cases cited therein. Furthermore, we note that Shupnick failed to request the trial court for an award of interest.

For the reasons cited, the $7,200 final judgment is reversed and the cause is remanded for a new trial on the issue of damages in accordance with the views expressed herein.

Reversed and remanded.

      . Shupnick v. Pershing Auto Leasing, Inc., 363 So.2d 198 (Fla. 3d DCA 1978).

      . See Pershing Industries, Inc. v. Shupnick, 325 So.2d 410 (Fla. 3d DCA 1976).


author: DANIEL S. PEARSON, Judge.

text:
    James SMITH, Jr., Petitioner, v. Maurice G. CROCKETT, Chairman, the Florida Parole & Probation Commission, and William F. Rouse, Superintendent of the Dade Correctional Institution, Respondents.
    No. 80-1012.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    James Smith, Jr., in pro. per.
    Michael H. Davidson, Gainesville, for respondents. '
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The petitioner, presently incarcerated at the Dade Correctional Institution, within this District, seeks a writ of habeas corpus, alleging that he is, and has been since January 8, 1980, illegally detained by Respondent Rouse, the Superintendent of the Correctional Institution, as a result of the action of Crockett, as Chairman of the Florida Parole & Probation Commission. Specifically, Smith says that under the Rules of the Department of Parole & Probation Commission, Florida Administrative Code Rule 23-19.01 et seq. (commonly known as the parole guidelines), he was entitled to be released on parole on January 8, 1980, but that the Commission departed from the recommended matrix and postponed his release date for twelve months. The Commission’s stated justification for this departure was the aggravating circumstance that the offense for which petitioner stood convicted was “committed with a firearm.”

The guidelines do provide that an aggravating factor which the Commission can use to postpone parole release is that the offense involved the use of a firearm. Fla. Admin.Code Rule 23-19.03(l)(a)l. However, petitioner claims that a decision exceeding the guidelines is prohibited under Florida Administrative Code Rule 23-19.03, which states in pertinent part: “If the aggravating . factor is included within the definition of the crime (e. g., armed robbery by definition involves the use of a firearm or dangerous weapon), . such aggravating . . . factors] shall not be applicable.”

The second-degree murder information upon which Smith (who was convicted of the lesser offense of manslaughter) stood trial, charged that he killed the victim by shooting him with a pistol. Smith contends that this charge brings him within the ambit of Rule 23-19.03, supra. We disagree. The use of a firearm or dangerous weapon, that is, the aggravating factor, is not in-eluded within the definition of second-degree murder or manslaughter. Therefore, this factor can be legitimately used to enlarge the time before the petitioner will be released on parole.

Accordingly, the petition for writ of ha-beas corpus is denied.

      . We observe that the custodian of the petitioner and therefore the proper respondent is Louie L. Wainwright, Secretary, Department of Corrections, State of Florida. Because of the fundamental nature of a petition for writ of habeas corpus, we will treat it as though the respondent had been correctly named. See Woods v. Cochran, 131 So.2d 5 (Fla.1961).


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. UNDERWRITERS ADJUSTING CO. and Modern Tool and Die Co., Appellees.
    No. QQ-233.
    District Court of Appeal of Florida, First District.
    June 4, 1980.
    Claire D. Dryfuss, Tallahassee, for appellant.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.Á., St. Petersburg, for appellees.
   MILLS, Chief Judge.

The.issue in this appeal is the construction of § 440.49(4)(e), Florida Statutes (1975), which reads:

Subject to the limitations specified in paragraph (f), and when the preexisting permanent physical impairment has contributed to the need [either] medically or circumstantially for temporary disability and remedial treatment, care, and attendance, an employer entitled to reimbursement from the Special Disability Trust Fund for compensation paid for permanent disability or death shall be reimbursed from said fund for 50 percent of the first $10,000 paid as compensation for temporary disability and remedial treatment, care, and attendance pursuant to s. 440.13, for the same injury; thereafter, the employer shall be reimbursed from said fund for all sums paid by the employer as compensation for temporary disability and remedial treatment, care and attendance pursuant to s. 440.13 which are in excess of $10,000. However, any amount in excess of $1,500 which is designated as consideration for future remedial treatment, care, and attendance in discharge of an employer’s liability pursuant to the provisions of subsection 440.-20(10) in which the employee is not permanently and totally disabled shall be reclassified for the purposes of this subsection as compensation for permanent disability.

Prior to the proceedings in this case, the employee and the carrier, appellee, entered into a joint stipulation which stated $9,400 was satisfaction for future medical and $12,000 was satisfaction for disability. After approval of the joint stipulation, the carrier applied to the Fund, appellant, for reimbursement, contending there was un-controverted evidence of a merger. The Fund resisted reimbursement contending that the disability benefits of $12,000 paid to the employee did not reflect payment for the effect of merger equal to or in excess of $3,000. § 440.49(4)(f), Florida Statutes (1975).

The carrier argues that § 440.49(4)(e) requires the Judge of Industrial Claims to reclassify to disability all medical benefits in excess of $1,500. Alternatively, the carrier asserts that the stipulation between the employee and the carrier is not binding in proceedings brought against the Fund. The carrier attempts to show that the allocation to future medical does not reflect the employee’s need for future medical because his condition did not require future treatment at the time he entered into the joint stipulation with the carrier. The Fund argues that this evidence violates the Parol Evidence Rule and that the allocations in the stipulation are binding upon the carrier.

The Judge construed § 440.49(4)(e) as a mandate to reclassify to disability all medical benefits in excess of $1,500. Accordingly, he reallocated to disability all “future medical” benefits in excess of $1,500 and found that the carrier was entitled to reimbursement from the Fund.

The Fund argues that § 440.49(4)(e) cannot be considered relevant in any Fund proceeding until after an employer’s eligibility has been established. The carrier contends the Judge erred in ruling that its evidence was inadmissible because it violated the Parol Evidence Rule.

We Reverse.

Section 440.49(4)(e) is not applicable to this case. In relevant part, that provision reads:

when the preexisting permanent physical impairment has contributed to the need .for temporary disability and remedial treatment, care, and attendance, an employer . . . shall be reimbursed . . (Emphasis supplied)

The provision thereafter delineates the formula for reimbursement in cases where such preexisting permanent physical impairment contributes to the need for temporary disability and remedial treatment. Our construction of § 440.49(4)(e) finds support in legislative clarification in its 1979 revision of the Act.

In this case, the employee’s preexisting permanent physical impairment was not shown to have contributed to either temporary disability or remedial treatment much less both. Consequently, § 440.49(4)(e) has no place in these proceedings; nor does the Parol Evidence Rule, which is designed to prevent introduction of fraudulent evidence in proceedings between parties to a written instrument.

The Judge of Industrial Claims is an independent fact finder in proceedings against the Fund. Special Disability Trust Fund v. Fleet Transport, 283 So.2d 31 (Fla.1973). He is not bound by prior fact finding. § 440.49(4)(g), Florida Statutes (1975). Nor is he bound by any finding made or order entered pursuant to joint stipulation. Id. Our construction of § 440.49(4)(e) and our decision in this case leaves unabridged the Judge’s exercise of his proper function under the law.

Accordingly, we reverse the order before us on all the issues raised in this appeal, and we remand the cause for entry of an order consistent with this opinion.

Reversed and remanded.

McCORD, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


author: CAMPBELL, Judge.

text:
    John C. CHOTKA, Appellant, v. FIDELCO GROWTH INVESTORS, a Pennsylvania Business Trust and Howard C. Petersen, Robert D. Bernheim, Matthew B. Weinstein, James B. Smith, Harry A. Gentner, James W. Bryant, Edward E. Lind, Henry A. Gladstone, Arno E. Krumbiegel, and Raymond L. Miller, Jr., as Trustees of Fidelco Growth Investors and Individually, Appellees. DIAMOND ISLE CONDOMINIUM ASSOCIATION, INC., a nonprofit Florida Corporation, Appellant, v. FIDELCO GROWTH INVESTORS, etc., et al., Appellees.
    Nos. 79-1599, 79-1600.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Peter T. Roman and Peter M. Dunbar of Dunbar, Dunbar & Roman, Dunedin, for appellants.
    John R. Bush and Claude H. Tison, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   CAMPBELL, Judge.

The trial court dismissed with prejudice the complaints of appellants Chotka and Diamond Isle Condominium Association (the Association) against appellees Fidelco Growth Investors and the trustees thereof, and these appeals ensued. We reverse.

Each appellant filed a separate amended complaint against appellees seeking damages for defects or omissions in the construction of the Diamond Isle Condominium building and common areas. Appellees were alleged to be the developer of the condominium project. Appellees filed motions to dismiss the amended complaints, one of the grounds for which was that appellees were not alleged to be the builder of the condominium or the areas alleged to have defects. Appellees also filed a motion for summary judgment on the grounds, inter alia, that they were the construction lender with no interest in the original construction of the condominium; that they foreclosed after the original developer had defaulted on the loan and after the project had been completed except for the swimming pool, tennis court, lobby, game room, elevator lobbies, and two sauna baths, which they completed; and that they were unaware of any construction or design defects at the time they purchased at the foreclosure sale. Appellees also filed an affidavit by J. Douglas Wallace, assistant vice president of Latimer & Buck Advisors, Inc., who participated in all phases of the foreclosure and sale of the condominium project in question. Wallace averred that at the time of the foreclosure all common elements other than those specifically mentioned above had been completed, and the individual units needed only to be finished “according to such directions as unit purchasers would give.”

After hearing, the trial court dismissed with prejudice appellants’ causes of action based on implied warranty. The dismissals were

for the reason that the Court finds, pursuant to stipulation, that the defendants, FIDELCO GROWTH INVESTORS, a Pennsylvania Business Trust, et al, [sic] was not the original builder-developer but was a construction money lender who acquired title from the original builder-developer through foreclosure proceedings following substantial completion of the condominium development by the original builder-developer and thereafter defendants, FIDELCO GROWTH INVESTORS, a Pennsylvania Business Trust, et al, [sic] prepared and furnished the development for sale purposes and did complete the sale of the units. .

This court held in Rice v. First Federal Savings & Loan Association, 207 So.2d 22 (Fla.2d DCA), cert. denied, 212 So.2d 879 (Fla.1968), that a lender is not under any duty to inspect the progress of construction for the benefit of anyone other than itself and may not be held liable for construction defects. Accord, Armetta v. Clevetrust Realty Investors, 359 So.2d 540 (Fla.4th DCA), cert. denied, 366 So.2d 879 (Fla.1978); Schaeffer v. Gilmer, 353 So.2d 847 (Fla.1st DCA 1977). However, appellees became more than just a lender when they took title to the condominium project, completed construction, and, holding themselves out to be the developer and owner of the project, advertised and sold units to purchasers. See First Wisconsin National Bank v. Roose, 348 So.2d 610 (Fla.4th DCA 1977). At that point, while recognizing that this was a common law action for implied warranty, and not an action under Chapter 718, Florida Statutes, we think appellees became a developer of the project to the extent that they may be held liable for performance of express representations made to the buyer, for patent construction defects in the entire condominium project and for breach of any applicable warranties due to defects in the portions of the project completed by appel-lees.

Accordingly, the trial court’s order dismissing the complaints with prejudice is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

GRIMES, C. J., and SCHEB, J., concur.


author: RYDER, Judge.

text:
    Hicks Sumner ALLEN and Edna Sumner Childs, Appellants, v. ST. PETERSBURG BANK & TRUST COMPANY, a corporation organized and existing under the laws of the State of Florida, Appellee.
    No. 79-2006.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    William H. Carey of Carey & Harrison, St. Petersburg, for appellants.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, and Edward A. Linney of Linney & Linney, St. Petersburg, for appellee.
   RYDER, Judge.

Appellants challenge a final judgment quieting title in favor of appellee, and allege that the lower court erred in applying the Marketable Record Title Act (MRTA), Section 712, Florida Statutes (1979), to terminate their interest. We affirm.

Appellants’ ancestor and appellee’s predecessor in title were mother and son who eo-owned the subject property. The co-owners failed to pay taxes, and the state acquired title to the land. In 1944, the trustees of the Internal Improvement Fund conveyed the land by Murphy Act deed to appellee’s predecessor only. Appellee began this action in 1979, alleging that the MRTA eliminated any interest claimed by appellants.

The effect of a tax deed to one of two prior co-tenants is simply a payment of taxes; the purchasing co-tenant’s interest is not enhanced except for the amount of taxes paid plus interest. Johnson v. Johnson, 179 So.2d 112 (Fla. 2d DCA 1965); Albury v. Gordon, 164 So.2d 549 (Fla. 3d DCA 1964); Taylor v. Taylor, 97 So.2d 323 (Fla. 2d DCA 1957). Thus, appellants’ ancestor maintained her interest in the land after the tax deed was recorded. At issue is whether that interest survives operation of MRTA.

MRTA operates to correct defects in title by creating a marketable record title when the public records disclose a record title transaction affecting the .title to the land which has been of record for not less than thirty years. Section 712.02, Florida Statutes (1979). A title transaction is defined as “any recorded instrument or court proceeding which affects title to any estate or interest in land.” Section 712.01(3), Florida Statutes (1979). Appellee’s 1944 Murphy deed is outside the required thirty year period, and the title is marketable if the Murphy deed was title transaction as contemplated by MRTA.

Our supreme court has held a wild deed to be the basis of a root of title under MRTA. City of Miami v. St. Joe Paper Company, 364 So.2d 439 (Fla.1978). Likewise, a forged deed can be a valid root of title. Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla. 4th DCA 1969). Even void deeds to sovereignty lands held by the state of Florida can be a root of title to activate MRTA. Odom v. Deltona Corp., 341 So.2d 977 (Fla.1977). We hold that a tax deed is also a root of title under MRTA. The certainty of title necessary under MRTA requires that appellee’s title be cured to the exclusion of appellants’ interest. Section 712.04,. Florida Statutes (1979). Appellants could have maintained their interest by filing notice prescribed by Section 712.05, Florida Statutes (1979), within the thirty year period. The record below does not indicate such notice was filed.

AFFIRMED.

GRIMES, C. J., and CAMPBELL, J., concur.

      . See Commentary, The Public Trust Doctrine and Ownership of Florida’s Navigable Lakes, 29 U.Fla.L.Rev. 730 (1977). These lands were in 1978 excepted from the operation of MRTA by statute. Section 712.03(7), Florida Statutes (1979).

      . We note that none of the exceptions set forth in Section 712.03 were claimed by appellants.


text:
    Bonita Marie GARVEY, Appellant, v. Michael Joseph GARVEY, Appellee.
    No. 79-2294.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    William A. Dooley and John D. Hawkins of Conley & Dooley, P.A., Sarasota, for appellant.
    Robert B. Bennett, Jr. of Vaughan, Mullins, Tayler & Bennett, Sarasota, for appel-lee.
   CAMPBELL, Judge.

This is an appeal from the modification of a final judgment of dissolution whereby custody of the parties’ youngest child, Michael, was split between the mother and father for alternate six-month periods.

In the original dissolution proceedings, the parties stipulated that custody of the four minor children, ages six to twelve, would be in the mother, subject to the father’s reasonable visitation rights. This stipulated custody arrangement was incorporated into the final judgment of dissolution entered on March 26, 1979. Approximately four months later, the father moved for an order placing the children in the parties’ joint custody, alleging that visitation arrangements had been unsuccessful. By stipulation, the parties and the minor children underwent psychological evaluations. After receiving the psychologists’ reports, hearing the testimony of the parties, and conducting an in-chambers interview of the parties’ four children, the court entered an order modifying the custody provisions of the final dissolution, and placing the parties’ youngest child, Michael, then seven, in the joint custody of the mother and father for alternate six-month periods.

A trial court has less discretion in modifying the custody provisions of a final judgment of dissolution than in making the original determination. Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967). To justify modification, the court must find a substantial change in circumstances since the date of the original judgment and detriment to the children if custody is not changed. Robinson v. Robinson, 333 So.2d 526 (Fla.2d DCA 1976); Hutchins v. Hutchins, 220 So.2d 438 (Fla.2d DCA 1969).

There was no evidence that the mother was an unfit parent; the father conceded this point. We find no evidence indicative of any substantial change of circumstances which would warrant a change of custody as it pertained to the minor child, Michael. In fact, the only basis for the trial court’s modification which is apparent from the record is that Michael had stated a preference to live with his father. Although the preference of a child is one factor to be considered, it cannot control the disposition of custody. Gall v. Gail, 336 So.2d 10 (Fla.2d DCA 1976). We also recognize that a trial court does not surrender its discretion to psychologists or other experts testifying concerning the welfare of children where best interests are to be protected by the court. Here, however, the only evidence as to the children’s welfare was contained in the lengthy report of the psychologist who examined both parents. The report concluded that,

there is no question in this examiner’s mind that the best interests of these children is best served by the court’s current custody placement. . . . Based oil my evaluation of these parents, I feel that the granting of any type of joint custody (as requested by Mr. Garvey) would be extremely detrimental to the best interests of these children.

Accordingly, the provision of the modification order placing Michael Garvey in the parties’ joint custody is reversed.

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


author: HURLEY, Judge.

text:
    Melvin T. GOLDBERGER, etc. et al., Appellants, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 78-2340.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.

      Michael T. Greif of Baskin & Sears, Boca Raton, for appellants.
    Lawrence J. Marchbanks of Reynolds & Marchbanks, Boca Raton, for appellee.
   HURLEY, Judge.

This interlocutory appeal, brought pursuant to Rule 9.130(a)(3)(B), questions the issuance of a temporary mandatory injunction without bond. For the reasons stated below, we reverse.

Plaintiff/appellee is a condominium association which, among other things, contests the developer/appellant’s entitlement to certain monies. The parties initially agreed to place the contested funds in an interest-bearing escrow account pending the outcome of the litigation. Subsequently, however, plaintiff decided to seek a temporary mandatory injunction to require the transfer of all funds on account and all future monies to the plaintiff. Though the pleadings did not so request, the mandatory injunction was issued without bond.

Our analysis starts with a review of the basic principles governing mandatory injunctions. In First National Bank in St. Petersburg v. Ferris, 156 So.2d 421, 423 (Fla. 2d DC A 1963) the court said:

The writ of injunction is an extraordinary remedy, harsh and drastic, particularly in its mandatory form, where equity goes beyond mere restraint and commands that acts be done or undone. Such injunctions are looked upon with disfavor by the courts and are granted but sparingly and cautiously. .
Basic to jurisdiction in equity is the rule that there must be a lack of an adequate remedy at law, and injunctive relief will not lie unless irreparable injury will result otherwise. . . The injury must be of a peculiar nature, so that compensation in money cannot atone for it; or, as the rule has been otherwise stated, it must be of such a nature that it cannot be redressed in a court of law. . Thus, generally, equity will not injunctively command return of personal property unless it is of peculiar value and character and unless its loss or retention by one not entitled to it cannot be fully compensated in damages. (Citations omitted.)

Addressing the issue of irreparable injury, the president of the condominium association offered his “guesstimate” that the association’s inability to have immediate access to the contested funds would result in a budgetary shortfall which, in turn, would necessitate a special assessment. Accepting this as true, it does not measure up to irreparable injury for it is not the' type of harm which is so peculiar “that compensation in money cannot atone for it." Ibid. Moreover, there was no testimony at the hearing that the association’s membership would be unable to satisfy a special assessment or that other dire consequences would attend its imposition. On the contrary, there was evidence that such assessments had been levied in the past; implicit is the inference that these assessments had been paid.

We also note that plaintiff failed to offer any testimony to substantiate the allegations of irreparable injury in its complaint, viz., that the deprivation of funds would cause the membership to be “. . . exposed to clouds upon their title and lien rights of plaintiff ASSOCIATION for the unpaid maintenance assessments and fees.” Presumably, this refers to the placement of liens against those units whose owners either might be unwilling or unable to satisfy a special assessment. So contingent and highly conjectural is this proposed injury that it falls well beyond the bounds of that which may be considered in issuing an injunction. Our own court stated the rule in City of Coral Springs v. Florida National Properties, 340 So.2d 1271, 1272 (Fla. 4th DCA 1976), when it said:

To be the subject of an injunction, a prospective injury must be more than a remote possibility; it must be so imminent and probable as reasonably to demand preventive action by the court.

We believe the foregoing to be dis-' positive of the case, but we briefly comment on one additional aspect: the issuance of the injunction without bond. Rule 1.610(b) Fla.R.Civ.P., states in part:

When a temporary injunction is granted, the court shall require the party obtaining it to give bond conditioned for the payment of such costs and damages as may be incurred or suffered by any party who is wrongfully enjoined unless the court, after taking evidence from all parties of the truth of the complaint and the fact that the party seeking the temporary injunction is unable to give bond, finds such to be true, in which event a temporary injunction without bond may be granted.

As indicated above, plaintiff’s complaint did not request an injunction without bond. Furthermore, there was neither proof nor a judicial finding that plaintiff was unable to give a bond. Absent such request, proof and finding, it was reversible error to issue an injunction without bond. Seminole Park and Fairgrounds, Inc. v. Tropic Bank of Seminole, 380 So.2d 1335 (Fla. 5th DCA 1980); Silverman v. Blaustein, 369 So.2d 86 (Fla. 3d DCA 1979); Muss v. Rosenberg, 353 So.2d 203 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So.2d 827 (Fla. 3d DCA 1977); Quadomain Condominium Ass’n, Inc. v. Pomerantz, 341 So.2d 1041 (Fla. 4th DCA 1977).

In view of our conclusion herein, it is unnecessary to reach any other issue raised on this appeal. The order granting the temporary mandatory injunction is hereby reversed and the cause is remanded with directions to the trial court to vacate said order and to conduct' further proceedings not inconsistent herewith.

Reversed and remanded.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . This account has no connection with the deposit of rent into the court registry required by Section 718.401(4)(a), Florida Statutes (1977), which was found unconstitutional in Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774 (Fla.1979).


text:
    Robert S. SCHWEITZER, Appellant, v. Larry SEAMAN, Appellee.
    No. 79-300.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.

      Rodger L. Spink, Hollywood, for appellant.
    Michael J. Garavaglia of Rosen, Rosen, Garavaglia & Ziff, P. A., Miramar, for ap-pellee.
   BERANEK, Judge.

Plaintiff appeals the dismissal with prejudice of his amended complaint seeking recovery from defendant for an alleged violation of a non-competition covenant in an agreement. We affirm.

Plaintiff and defendant, Drs. Seaman and Schweitzer, both podiatrists, entered into an agreement on January 17, 1975. This written agreement memorialized a prior verbal agreement between the doctors regarding their business relationship. The agreement provided in part as follows:

1. Dr. Seaman is an independant (sic) contractor insofar as fiscal matters are concerned and therefor Dr. Seaman is responsible to Dr. Schweitzer insofar as the offices of Dr. Schweitzer, at 2500 East Hall. Beach Blvd., for 50% of the gross amount taken in at said office for all general podiatry work performed by Seaman there and 40% of all podiatry surgery at said location, the premises of Dr. Schweitzer. This money is due on the 2nd or 3rd of the month following its being acrued (sic) or taken in, and is strictly in exchange for use of equipment, materials, services, etc.
2. Dr. Seaman is responsible for paying his own professional liability insurance and for all followups and re-dressings on surgery performed there. He is solely responsible for surgery he (Dr. Seaman) performs.
3. All patient charts, all patient records are strictly the property of Dr. Schweitzer and may not be removed from the offices nor any patient contacted should there be a dissolvement of this agreement at any time and for whatever reason.
4. In consideration of the opportunity being afforded Dr. Seaman, Dr. Seaman may not, following any separation from the offices of Dr. Schweitzer, work in, associate with or operate in any manner in any podiatry office or office where podiatry is practiced within five miles (5 miles) for a period of three, years following any dissolution of this arrangement as per 1. Should he so do so, then it is agreed by both parties that accumulated damages due Dr. Schweitzer would be in excess of $25,000. To clarify; Dr. Seaman may not, following, any removal of this arrangement of use of Dr. Schweitzer’s premises, services, etc. open or practice in any office within 5 miles of 2500 East Hallan-dale Beach Blvd. for a period of three (3) years following his leaving 2500 East Beach Blvd. offices of Dr. Schweitzer.

Plaintiff filed a complaint alleging that on or about February 8, 1977, the relationship created by the above agreement was dissolved and that prior to the expiration of three years after the dissolution of the relationship, Dr. Seaman opened an office within five miles of Dr. Schweitzer’s office in violation of Section 4 of the above agreement.

Defendant Seaman moved to dismiss the complaint alleging that the agreement was an illegal restraint of trade in violation of Section 542.12, Florida Statutes (1979). The trial court dismissed the complaint with leave to amend. Plaintiff then filed an amended complaint which contained the additional allegation that the association between the doctors was in fact a partnership. It characterized as a misnomer the description of Dr. Seaman as an independent contractor. Attached to the complaint was a copy of the agreement. Defendant again moved to dismiss based upon Section 542.12 further maintaining that the allegation of partnership was an attempt to modify an unambiguous contract. The trial court granted this second motion to dismiss with prejudice. Plaintiff appeals arguing the agreement was ambiguous as to the nature of the business relationship. Plaintiff contends he should have had the opportunity to prove his allegations of partnership.

Section 542.12, Florida Statutes (1979), provides in part:

(1) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.
(3) Partners may, upon or in anticipation of a dissolution of the partnership, agree that all or some of them will not carry on a similar business within a reasonably limited time and area.

The Florida Supreme Court in Akey v. Murphy, 238 So.2d 94 (Fla.1970), specifically found subsection (3) above valid, that is, partners may validly agree to limit competition within a reasonable time and area after one party withdraws from the partnership. Akey found such a partnership agreement between two doctors enforceable.

The issue presented here is whether based upon the complaint and attached agreement the trial court could properly have found that the doctors’ relationship was not a partnership and that plaintiff could not have amended his complaint to demonstrate that it was a partnership.

Plaintiff argues that an ambiguity exists as to whether this was indeed a partnership. While the amended complaint alleges a partnership, the attached agreement was clearly to the contrary. It specifically provided that Dr. Seaman was an independent contractor, that his liability was separate and that Dr. Schweitzer’s percentages of Seaman’s grosses were strictly in exchange for equipment and materials. The separate liability provision alone is in conflict with Florida law requiring partnership liability for the wrongful act of a single partner. Section 620.62, Florida Statutes (1979). Further, the agreement specifically defines Dr. Seaman as an independent contractor.

The words found in a contract are to be given meaning and are the best possible evidence of the intent of the contracting parties. Jacobs v. Petrino, 351 So.2d 1036 (Fla. 4th DCA 1976), cert. den. 349 So.2d 1231 (Fla.1977). We find the agreement between the doctors here unambiguous and that it did not establish a partnership.

In finding the contract unambiguous, we necessarily find correct the dismissal of the complaint with prejudice. The amended complaint merely alleged the parties intended a partnership. The attached contract clearly shows to the contrary. Where there is an inconsistency between the general allegations of material fact in the complaint and the specific facts revealed by the exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable. Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971), cert. den., 252 So.2d 797 (Fla.1971); Padgett v. First Federal Savings and Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979). Plaintiff’s suit is basically one for enforcement of a written contract. The contract, as written, is declared void as against public policy by statute. We can envision no way plaintiff could further amend to avoid the effect of the statute. Plaintiff did not plead fraud in the inducement nor does he argue on appeal that he could, if allowed to amend.

We, therefore, affirm the judgment of the trial court dismissing the amended complaint with prejudice.

AFFIRMED.

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


author: HERSEY, Judge.

text:
    John A. GOSMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-411.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    David A. Roth and Robert Q. Wyckoff of Cone, Owen, Wagner, Nugent, Johnson, Ha-zouri & Roth, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

This appeal from a conviction and sentence for armed robbery involves an application of some form of the “Brady evidence” rule. Simply stated, the rule enunciated in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) is that where a pre-trial request for specific evidence has been made by the defense and not complied with by the prosecution and the withheld evidence may have affected the outcome of the trial, the accused will be held to have been effectively denied his right to. a fair trial. A companion rule, arising out of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), is applied where no such request is made or where there is a general request for exculpatory evidence. The test for fairness under these circumstances is whether or not the evidence withheld creates a reasonable doubt that did not otherwise exist.

Florida has codified these requirements, to some extent, in Rule 3.220(a)(2), Florida Rules of Criminal Procedure, which provides:

(a)(2) As soon as practicable after the filing of the indictment or information the prosecutor shall disclose to the defense counsel any material information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged.

Appellant seeks reversal of an order denying his motion for new trial on the grounds that because of a violation of the Brady rule he was denied his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

Following an armed robbery, of which appellant was accused, the storeowner victim and one of his employees were shown a photographic line-up which included a picture of appellant. Neither witness was able to make an identification. Subsequently both witnesses did identify appellant in a live or corporeal line-up. Another employee was unable to identify appellant and identified another individual as the one he had seen in the store on the day of (but not at the time of) the robbery. Appellant and his mother testified that they were together at the time the robbery took place. Appellant filed a demand for discovery which contained the general request for “. any material information within the state’s possession or control which tends to negate the guilt of the accused as to the offense charged.” The State’s answer to demand •listed line-up photographs which had been taken of the corporeal lineup. Those from the photographic lineup were not disclosed and, in fact, were not preserved for trial or for any other purpose.

Approximately one month prior to trial appellant took the deposition of the victim and learned of the photographic line-up. The record does not disclose any activity on the part of appellant to obtain a disclosure of evidence concerning that line-up. A few days before the trial he asked one of tne police officers who had conducted the investigation whether there was anything else about the case not shown by the police reports that he should know. The response to this general question was to the effect that the reports covered everything. Later, after the jury had retired to consider its verdict, that officer apparently recalled, and therefore advised appellant, that the photographic line-up had included a photograph of appellant.

Prior to this and during the trial, the prosecutor, in response to appellant’s question as to whether or not appellant’s photograph had been included in the line-up, indicated that there had been open file discovery and that he had no knowledge of or about a photographic line-up. There is no evidence or even an indication that the prosecutor did have such knowledge.

On these facts, appellant seeks reversal because of the purported Brady violation. We find no violation sufficient to support reversal and affirm.

At no time prior to trial was a specific demand made for evidence connected with the photographic line-up. The effect of failure to produce that evidence must therefore be tested under the Agurs variation of the Brady rule. The trial judge was in a much better position to evaluate the potential effect of the withheld evidence than we are. He had an opportunity to see and hear the witnesses, gauge their credibility and weigh the evidence. In addition, his determination in that regard comes to us clothed in a presumption of correctness. McNamara v. State, 357 So.2d 410 (Fla.1978). We are not prepared to hold that, as a matter of law, the omitted evidence would create a reasonable doubt that did not otherwise exist.

Appellant’s failure to take positive action after learning of the photographic line-up may constitute a waiver of his right to now object to the State’s failure to come forward with that evidence but such a determination is not essential to the result we have reached for the other reasons given.

AFFIRMED.'

ANSTEAD, J„ and OSEE R. FAGAN, Associate Judge, concur.