author: PER CURIAM. MILLER, ROBERT P., Associate Judge,

text:
    ORTHOPEDIC EQUIPMENT COMPANY and Frank I. Saemann, Appellants, v. STREETMAN AND ASSOCIATES, INC., a Florida corporation, and Fred W. Streetman, Jr., Appellees. STREETMAN AND ASSOCIATES, INC., and Fred W. Streetman, Jr., Appellants, v. ORTHOPEDIC EQUIPMENT COMPANY, etc. et al., Appellees.
    Nos. 78-930/T4-99, 79-440/T4-99A.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.

      James F. Page, Jr. of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellants/cross-appellees.
    Ronald L. Harropp, Orlando and Arthur A. May, South Bend, Ind., for appel-lees/cross-appellants.
   PER CURIAM.

The appellant, Orthopedic Equipment Company (hereinafter referred to as OEC), an orthopedic supplier, in 1969 granted the appellees (hereinafter referred to as Street-man) an exclusive distributorship for its products in Florida and other areas. In return, Streetman agreed not to sell or promote medical or hospital merchandise, other than that bought from OEC, in the defined geographical area during the pendency of the agreement. The agreement, paragraph 15, contained a “best efforts” clause as follows:

BEST EFFORTS: During the term of this Agreement and any renewal period, DISTRIBUTOR shall exert his best efforts to sell and promote COMPANY’S products. At no time shall DISTRIBUTOR sell or promote, directly or indirectly, any items of merchandise normally sold in the medical and hospital field which are not invoiced by the COMPANY. It is understood that DISTRIBUTOR’S primary obligation is to sell and promote COMPANY products but nothing contained herein, however, is intended to prohibit DISTRIBUTOR, as an independent contractor, from engaging in fields of endeavor other than the sales of products normally sold in the hospital and medical fields.

The first question presented here is whether or not the above paragraph constitutes an illegal restraint of trade. The trial court apparently found that it did and modified the restrictions permitting Streetman to sell and promote hospital and medical merchandise of types not invoiced by OEC.

Both parties appeal this ruling: OEC contends the trial court should not have modified the “in-term” contractual restriction; Streetman argues that so long as it meets minimal quota standards prescribed by other provisions of the agreement, it should be allowed to sell any and all items in the hospital and medical field whether invoiced by OEC or not, and the trial court should have stricken the limitations of Paragraph 15 in toto as a restraint of trade.

We agree with OEC. At common law a contract in restraint of trade which deprived the public of one’s skill or industry and which prevented one from supporting himself and his family was invalid as against public policy. Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 68, 22 L.Ed. 315, 318 (1874). Since the restraint in this contract coincides with the term of employment it does not create the evils which made a post-term restraint invalid at common law.

This common law doctrine existed in Florida until it was modified by section 542.12, Florida Statutes (1955). The purpose of this statutory change was not to expand the common law doctrine to cover in-term restraints such as found in this contract but rather limit its sometimes harsh results to the employer by making certain exceptions to its application. Flammer v. Patton, 245 So.2d 854 (Fla.1971). We hold, therefore, that section 542.12 has no application to in-term restraints, restraints existing for the duration of the term of employment.

Although this is a decision of first impression in this state, we do find support in other jurisdictions which have considered in-term restraints. See Harrison v. Glucose Sugar Refining Co., 116 F. 304 (7th Cir. 1902); Good v. Modern Globe, 346 Mich. 602, 78 N.W.2d 199 (1956); Vendo Co. v. Stoner, 105 Ill.App.2d 261, 245 N.E.2d 263 (1969); 54 Am.Jur.2d Monopolies, etc. § 452 (1971); and Annot., 9 A.L.R. 1456, § IIa at 1463 (1920).

Streetman also contends that paragraph 15 violates the Federal Trade Commission Act, 15 U.S.C. section 45(a)(1), and the Florida Deceptive and Unfair Trade Practices Act, section 501.204, Florida Statutes (1979). This argument is without merit. See Federal Trade Comm’n. v. Curtis Publishing Co., 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408 (1923).

In light of the above we find paragraph 15 of the agreement to be valid, its terms clear and unambiguous and, therefore, the trial court’s modification thereof was error.

Streetman also appeals the finding of the trial court that OEC is not required under the contract to provide Streetman with cost information on new products. OEC contends that there is no express or implied requirement in the contract that OEC furnish cost information to Streetman; therefore, the trial judge was correct in his conclusion. Streetman argues that the contract taken as a whole and the conduct of the parties indicate that he is entitled to such information.

The contract in dispute contains the following provisions:

6. INSPECTION OF RECORDS: Each party hereto and/or their accountants may, upon reasonable notice and during normal business hours, inspect each other's books and records pertaining to the operation contemplated by this Agreement.
7. AMOUNT OF COMMISSIONS: Commissions shall be paid by the COMPANY to the DISTRIBUTOR, in accordance with Exhibit ‘A’ as aforesaid, but subject to the following:
(a) In the event new items of merchandise are added, COMPANY and DISTRIBUTOR shall agree upon the rate of commission to be paid to DISTRIBUTOR prior to marketing of said new product.

According to paragraph 7(a), Streetman and OEC are required to negotiate and agree upon a rate of commission for new products. The determination and payment of commissions obviously are integral parts of the “operation contemplated by this Agreement.” Construing the contract as a whole, it would appear that Streetman has the right to inspect the cost information contained within OEC’s books and records.

The conduct of the parties supports this conclusion. From 1969 until 1973, no cost or pricing information was requested nor supplied by OEC. However, in 1973, OEC added to its line a “universal abdominal binder” which carried a reduced commission. Streetman requested certain cost information. OEC agreed to provide the requested information. Thereafter, following requests from Streetman, OEC provided cost and pricing information on certain items from 1973 until 1976.

Paragraphs 6 and 7, taken in light of the conduct of the parties, indicate that the parties intended that Streetman be allowed to inspect OEC’s books and records pertaining to cost information of new products upon reasonable notice and during normal business hours; however, OEC is under no contractual duty to furnish Streetman with such information. Therefore, the partial final judgment should be modified to establish Streetman’s right of inspection only in regard to such information.

Streetman’s contention that the trial court erred in not construing the contract concerning his right to run for congress is likewise without merit. The court properly found such issue not within the scope of the pleadings.

In consolidated Case No. 79-440, Street-man appeals the determination by the trial court that its damage claims set forth in Counts III and IV of its complaint are barred by the applicable statute of limitations. We find this appeal to be without merit and affirm the trial judge in this regard.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings consistent with this opinion.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

MILLER, ROBERT P., Associate Judge, concurs in part and dissents in part with opinion.

MILLER, ROBERT P., Associate Judge,

concurring in part and dissenting in part.

I concur and agree completely with the majority opinion in all respects except their interpretation of Paragraph 6 of the contract. Paragraph 6 obviously refers to books of account and other sales records involved in the distribution of OEC’s products and should be so limited. I would affirm the trial judge in that regard.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Grace Evelyn SQUITIERI and Paul Squitieri, her husband, Appellants, v. AETNA CASUALTY & SURETY COMPANY, Sham G. Sani and Kamala Sani, Appellees.
    No. 79-496.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Gary E. Doane of Whitaker & Koepke, Orlando, for appellants.
    Robert K. Rouse, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Day-tona Beach, for appellees.
   PER CURIAM.

Reversed on the authority of Squitieri v. Aetna Casualty & Surety Company, 382 So.2d 730 (Fla. 5th DCA 1980).

REVERSED and REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., and CLARK, HAROLD R., Associate Judge, concur.


text:
    Scott CORWIN, Toni Corwin, Tim Fitzgerald and Pam Sims, Appellants, v. Norman FINK, Maria Fink, and SX Industries, Inc., a Massachusetts Corporation, Appellees.
    No. 80-367.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Burke D. Chester, Daytona Beach, for appellants.
    R. Michael Kennedy of Kennedy & Hoge-boom, Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED.

Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953).

COBB, SHARP and COWART, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Earl D. ROGERS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 79-1393/T4-619.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Walter A. Ketcham, Jr., Walker & Buck-master, P. A., Orlando, for appellant.
    James 0. Driscoll, of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee.
   ON MOTION FOR REHEARING AND ORDER FOR REHEARING EN BANC

DAUKSCH, Chief Judge.

The Motion for Rehearing filed more than fifteen (15) days from the date of issuance of the decision herein is stricken as untimely. Fla.R.App.P. 9.330(a).

Upon its own motion, the court has determined to reconsider its decision rendered in this case on May 7, 1980 as reported in 383 So.2d 1221 (Fla. 5th DCA 1980). Fla.R. App.P. 9.331(c).

In order to maintain uniformity in this court’s decisions and in consideration of the fact that the per curiam decision issued affirming the order of the trial court turns out to be in direct conflict with the opinion in State Farm v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), we hereby withdraw the mandate issued herein.

It is the opinion of this court that the order dismissing the complaint was error and that order is reversed on the authority of State Farm v. Bergman. This cause is remanded for further proceedings after reinstatement of the complaint.

REVERSED AND REMANDED.

ORFINGER, COBB, FRANK D. UP-CHURCH, Jr., SHARP and COWART, JJ., concur.


text:
    Willie Joe MORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-769.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein and Robert R. Schrank and Howard Blumberg, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret)., Associate Judge.
   PER CURIAM.

Affirmed. McCloud v. State, 335 So.2d 257 (Fla.1976); Mims v. State, 342 So.2d 116 (Fla.3d DCA 1977); State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977); Adams v. State, 295 So.2d 114 (Fla.2d DCA 1974), cert. denied sub nom. Yarborough v. State, 305 So.2d 200 (Fla.1974).


author: HENDRY, Judge.

text:
    STRESSCON INTERNATIONAL, INC., a Florida Corporation, Tripp Crane Service, Inc. and Conerec, Inc., a Florida Corporation, Appellants, v. Susan E. HELMS, as personal representative of the Estate of Lawrence Helms, deceased, Appellee.
    Nos. 79-222, 79-232 and 79-235.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.

      Lane, Mitchell & Harris and Byron B. Mathews, Jr.; Virgin, Whittle, Garbis & Gilmour; Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellants.
    Podhurst, Orseck & Parks and Walter H. Beckham, Jr. and Joel D. Eaton; Spence, Payne, Masington & Grossman, for appel-lee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

We review a $2.1 million judgment entered upon a directed verdict. We affirm.

The facts are these: Larry Helms was working on the top floor of a building under construction, in a ceilingless room left open for the placement of a large air conditioning unit; one of several four-ton slabs of precast concrete was being craned over the building to the other side when the nylon straps which held it gave way; Helms was decapitated when the slab fell.

Helms was twenty-two years old. He was married; he had a small daughter; a second daughter was born three months after his death.

His wife brought a wrongful death action for his estate against Stresscon International, Inc., which had been hired to manufacture, haul and erect the concrete slabs. Additionally, two subcontractors, Conerec, Inc., and Tripp Crane Service, Inc. (installers and crane operators, respectively) were made parties to the suit. The amended complaint alleged Stresscon’s negligence, breach of implied warranty, vicarious liability, and strict liability; damages were sought against Conerec and Tripp for their negligence.

At the close of the evidentiary portion of the trial, the court granted plaintiff’s motion for directed verdict, and instructed the jury that the defendants were negligent, and had proximately caused Helms’ death. They were left to assess damages, and apportion one hundred percent of the fault among the three defendants.

In a special verdict, the jury found Stresscon and Conerec actively at fault, and Tripp to have been a passive tortfeasor; the relative degrees of fault of the three defendants were found to be thirty-, sixty-, and ten-percent, respectively.

All three, defendants appeal the grant of plaintiff’s motion for directed verdict, and Stresscon further argues that its motion for directed verdict should have been granted, that the trial court improperly excluded certain evidence bearing on the vicarious liability claim, and that its motion for new trial, based upon the excessiveness of the verdict, should have been granted.

We find initially that, on our review of the record, the verdict is not “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla.1977), on remand sub nom. Hartford Accident & Indemnity Co. v. U.S. Concrete Pipe Co., 369 So.2d 451 (Fla. 4th DCA 1979). No new trial is merited on that ground.

In addition to the general contention that the verdict is too large, Stresscon argues that the jury should not have been allowed to award damages for pain and suffering to the surviving children computed over the joint life expectancies of the children and their father; it is urged that such damages are statutorily allowable if computed over the children’s period of minority only. See § 768.21(3), Fla.Stat. (1977). Our reading of the statutory language does not support that view; in any event, we stop short of full-blown analysis thereof because the record does not disclose a timely objection below upon which to hinge Stresscon’s claim. The argument is deemed waived. Bould v. Touchette, supra, 349 So.2d at 1186.

We similarly disagree with Stresscon’s argument that its contract with Conerec should have been admitted into evidence to support its contention that the latter was an “independent contractor.” Since the jury found Stresscon actively negligent, it obviously rejected the vicarious liability count; it is only with regard to Stresscon’s vicarious liability that Coneree’s status vis a vis its employer is relevant. Thus, any error committed was harmless.

We consider the appellants’ claim that plaintiff’s motion for directed verdict should not have been granted.

The test of a directed verdict’s propriety was definitively stated in New Deal Cab Co. v. Stubbs, 90 So.2d 614 (Fla.1956):

Where the entire evidence is of such probative force that the trial court, to give effect to the manifest weight of the evidence and the justice of the cause, should properly have granted a new trial if a verdict had been rendered for the defendant, the trial court will not be held in error for directing a verdict for the plaintiff.

at 615 (citations omitted). Davis v. Sobik’s Sandwich Shops, Inc., 351 So.2d 17 (Fla.1977), on remand 371 So.2d 709 (Fla. 4th DCA 1979); Cook v. Estate of Mills, 374 So.2d 599 (Fla.3d DCA 1979).

Appellants urge that Davis and New Deal Cab set forth a three-prong test, under which we must reverse the judgment below:

“1) Plaintiff must be an innocent sufferer, free from any contributory negligence;
2) All parties responsible for the cause of plaintiff’s injuries must be joined as defendants in the lawsuit;
3) There must be no evidence that the accident which caused plaintiff’s injuries was unavoidable.”

In that context, appellants contend there was evidence that Helms was warned of the lift over his work area (so that his failure to leave the area constituted contributory negligence), and that Helms’ superior had been similarly warned (so that his employer, who had previously been voluntarily dismissed from the suit, was jointly liable for Helms’ death). Appellants do not contend that the accident was unavoidable.

Acknowledging that facts conforming to that tripartite description appear in the language of Davis and New Deal Cab, we nonetheless reject the suggestion that they constitute unwavering criteria by which to gauge the appropriateness of a trial court’s granting of a motion for directed verdict.

As appellee notes, New Deal Cab predates the advent of the comparative negligence liability apportionment standard in this state by seventeen years. Since, at the time that New Deal Cab was an-nouneed, any contributory negligence of the plaintiff barred his recovery en toto, such contributory negligence thereby negatived a directed verdict for the plaintiff. Obviously, such is not now the case. However, appellants point to language of Davis reiterating the same three conditions; clearly, they would argue, had one or more of these conditions been obviated by the shift to our present comparative negligence rule, they would not appear in Davis, which was handed down four years after Hoffman.

We reject appellants’ tripartite-test analysis by reference to an additional similarity between New Deal Cab and Davis by which is explained the presence of the three conditions set forth in New Deal Cab, and repeated in Davis, without elevating them to the status of an alternative test of the validity of a directed verdict: In both cases, the trial court found that the defendants had negligently caused injury to the plaintiff. That is, in both cases, the court instructed the jury to return a damages figure, and one hundred percent of the liability assessment (in whatever apportionment) against the defendants: In those cases, no contributory negligence of the plaintiff, or tortfeasance of non-joined persons, was there to be found. Therefore, in an instance where the court has determined that no one other than the defendants may properly be held liable for plaintiff’s injuries, the conditions stated in New Deal Cab and Davis constitute no more than a tauto-logic reconstruction of the actual test. However, a directed verdict may properly be had against a defendant causing injury in some proportion, where a jury might find a plaintiff contributorily negligent. See Santiesteban v. McGrath, 320 So.2d 476 (Fla.3d DCA 1975). Moreover, a plaintiff is not required to summon all conceivable culpable parties as defendants; he may have his judgment against any of them, and if a single defendant is shown to have negligently caused injury, a directed verdict against him is proper. In these instances, appellants’ theory fails.

We find that the evidence of appellants’ culpability was so overwhelming that, had the jury rendered a verdict assessing anything less than one hundred percent of the blame for Helms’ death against them, and had the trial court denied a motion for new trial, we would be forced to reverse, and remand for new trial. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Westbrook v. All-Points, Inc., 384 So.2d 973 (Fla.3d DCA 1980).

Finally, we find that evidence adduced below does not support Stresscon’s motion for directed verdict.

Affirmed.

      . Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . We note that our review of the evidence leads to the same inescapable conclusion the trial court reached: Neither Helms nor his employer was negligent, since neither can be said to have been warned of the upcoming lift. Although the result under appellants’ construction is the same as that obtained by reference to the proper test of a directed verdict’s propriety, we deem it appropriate to dispose of appellants’ contention in order to affirm our adherence to the proper test.


text:
    Mary FISHER, Appellant, v. Louis FISHER and Sybil Fisher, his wife, Appellees.
    No. 79-1090.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.

      Joseph Navarra, Tampa, for appellant.
    Walters, Costanzo, Miller, Russell & Ditt-mar and Edgar Miller, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We review an order by which the paternal grandparents were granted weekly visitation of the widowed appellant’s three young children.

By reference to the provisions of Section 68.08, Florida Statutes (Supp.1978), we find that the trial court acted within its authority in granting visitation privileges to appellees herein.

The same Order seeks to facilitate its visitation provision by forbidding appellant to remove her children from Broward County, where she and they now reside. This was error. § 61.13(2)(b), Fla.Stat. (Supp.1978).

The Order, insofar as it permits visitation by the grandparents, is affirmed; paragraph four of that order, only insofar as it restricts appellant’s ability to remove her children and herself from the state or jurisdiction of the circuit court, is reversed.

Affirmed in part, reversed in part.

      . Ch. 78-5, § 2, Laws of Fla., which became § 68.08, Fla.Stat. (Supp.1978), became law upon approval by the Governor on April 25, 1978. See Art. III, § 8(a), Fla.Const. The circuit court’s Final Order on Visitation was signed on October 12, 1978.

      . Ch. 78-5, § 1, Laws of Fla.; see note 1, supra.


text:
    Rolando RODRIGUEZ, a/k/a Roberto Torres, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1880.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Rolando Rodriguez, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that, with respect to the merits, the appeal is wholly frivolous. The imposition of a three year term in prison as a condition of ten years probation in Case No. 72-5858 is reversed and that case only is remanded for resen-tencing on the authority of Villery v. Florida Parole & Probation Commission (Fla.1980) and Cunningham v. State, 385 So.2d 721 (Fla.3d DCA 1980). The public defender’s said motion to withdraw is granted and the orders and judgments appealed are otherwise hereby affirmed.

Affirmed in part, reversed in part.


text:
    Jacob SMITH, Appellant, v. BLISS & NYITRAY, INC., Appellee.
    No. 79-2062.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Greene & Cooper and Robyn Greene, Keyfetz & Poses, Philip Freidin, Miami, for appellant.
    James J. Belcher, Pompano Beach, and Craig W. Lekach, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Vorndran v. Wright, 367 So.2d 1070 (Fla.3d DCA 1979).


text:
    Larry OLIVER, Appellant, v. OHOLEI TORAH SCHOOL OF MIAMI, INC., et al., Appellees. Steve JACKSON, personal representative of the Estate of Blanche Delores Jackson, Appellant, v. TRAVELERS INDEMNITY CO. et al., Appellees.
    Nos. 79-2276, 79-2333.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for Larry Oliver.
    Underwood, Gillis, Karcher, Reinert & Valle and Thomas R. Trompeter, Miami, for Parliment & Kent.
    Proby & Adkins and H. Lawrence Hardy, Coral Gables, for Steve Jackson.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for Oholei Torah School.
    Before HUBBART, C. J., and BASKIN and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979); United States Fidelity & Guaranty Co. v. Hazen, 346 So.2d 632 (Fla.2d DCA 1977) (result only approved in Excelsior).


text:
    Fred D. LEWIS, Appellant, v. James H. BERRY, Appellee.
    No. 80-44.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Alfred Gustinger, Jr., Coral Gables, for appellant.
    Irving Peskoe, Homestead, for appellee.
    Before NESBITT, BASKIN and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. Cannon Sand & Rock, Inc. v. Maule Industries, Inc., 203 So.2d 636 (Fla. 3d DCA 1967).


author: VANN, HAROLD R. (Ret.) Associate Judge.

text:
    Eddie BYRD, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 80-85.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, HAROLD R. (Ret.) Associate Judge.

The defendant brings this appeal seeking review of the trial court’s orders revoking his probation, adjudging him guilty of resisting an officer with violence to his person and battery on a law enforcement officer, and sentencing him to five years in the state penitentiary.

The order revoking probation stated as grounds therefor the offense of grand theft and failure to make payments to cover cost of supervision, pursuant to Section 945.30, Florida Statutes (1979). The appellant contends the trial court erred in both of these findings. We agree in part, and find that the trial court erred in revoking the appellant’s probation for non-payment of costs of supervision without a prior and specific finding that the defendant was, in fact, able to make payments for probation supervision. See: Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979); Smith v. State, 373 So.2d 76 (Fla.3d DCA 1979); DeLuca v. State, 383 So.2d 751 (Fla.4th DCA 1980). Therefore, we reverse that portion of the revocation order and remand, with directions that the violation be stricken from the order.

However, we will not reverse the order of revocation, as the record herein clearly shows that the offense of grand theft was sufficiently demonstrated so as to satisfy the conscience of the court that the defendant materially violated the terms of his probation. Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974); Thomas v. State, 358 So.2d 114 (Fla.3d DCA 1978).

Accordingly, we affirm the order revoking the defendant’s probation, except as modified by our reversal of that ground revoking the defendant’s probation for non-payment of costs of supervision.

Affirmed as modified.


text:
    Steven Kent BAHLER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-184.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Andrew M. Tobin, Tavernier, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

We affirm the trial court’s denial of defendant’s motion to suppress: The arrest was supported by probable cause, and a valid search was made incident thereto.

Affirmed.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Roy GARRETT and Bettye Garrett, his wife; Thomas B. Wadsworth and Gloria Joyce Wadsworth, his wife; George F. Sanders and Betty J. Sanders, his wife; individually and on behalf of all apartment unit owners of Oasis-A Condominium, as a class, Appellants, v. Carlos ROCA, an individual; Alejandro Robles, an individual; and Manuel Gallardo, an individual, Appellees.
    No. 80-446.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Becker, Poliakoff & Streitfeld and Robert J. Manne, Fort Lauderdale, for appellants.
    James F. Comander, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Reversed, and remanded with leave to amend appellants’ complaint. See Plyser v. Hados, 388 So.2d 1284 (Fla.3d DCA 1980).

SCHWARTZ, Judge

(dissenting in part).

I believe the complaint, as it stands, more than adequately alleges a cause of action against the individual defendants. Avila South Condominium Ass’n. v. Kappa Corp., 347 So.2d 599 (Fla.1977); B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla.3d DCA 1977). I would therefore reverse the judgment below outright and remand for further proceedings without the requirement of amendment.


author: NESBITT, Judge.

text:
    Luis VIGGIANI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-711.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Schreiber, Lechtman, Certo & Steinberg and Michael Lechtman, North Miami Beach, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty; Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

After a non-jury trial, Viggiani was convicted of aggravated battery, aggravated assault, and unlawful possession of a weapon in connection with both.

The question before us is whether Viggia-ni effectively waived his right to trial by jury. Finding that he did not, we reverse and remand for a new trial.

From the record, we find that a stamp purporting to waive the right to trial by jury had been impressed upon the face of the original information containing a signature block which Viggiani allegedly signed. The record is otherwise silent as to what, if anything, prompted Viggiani to sign the waiver. The state attempts to support the judgment by reference to the transcript where, at the commencement of the trial, counsel were called to the ease as a “non-jury case” and defense counsel did not voice objections or make any attempt to claim Viggiani’s entitlement to a jury trial. We reject such an argument in that the proper test is whether the defendant intelligently, freely, and voluntarily waived his right to trial by jury at the time he affixed his signature to the information. Durcan v. State, 383 So.2d 248 (Fla.3d DCA 1980) (see also opinion of Baskin, J. dissenting on other grounds); Tosta v. State, 362 So.2d 526 (Fla.4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978); Molfetas v. State, 323 So.2d 598 (Fla.3d DCA 1975). The showing presented in this case is not sufficient to demonstrate an effective waiver of a constitutionally guaranteed right. Art. I, § 22, Fla.Const.

Florida Rule of Criminal Procedure 3.260 provides that: “[a] defendant may in writing waive a jury trial with the consent of the State.” In State v. Garcia, 229 So.2d 236 (Fla.1969), the Supreme Court, in construing a predecessor rule, held that the rule, being procedural in nature, preempted any statutory scheme governing the waiver of trial by jury. The problem is that the rule does not prescribe the manner and means of procuring the written waiver. However, in nearly all of the cases decided following State v. Garcia, supra, the minimal common denominator, which has been held sufficient to constitute a valid and effective waiver, was the defendant’s signature accomplished in open court and incorporated either in the transcript of the proceedings or otherwise made part of the record. Russell v. State, 342 So.2d 96 (Fla.3d DCA 1977); Kinser v. State, 291 So.2d 80 (Fla.3d DCA), cert. denied, 297 So.2d 832 (Fla.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1393, 43 L.Ed.2d 652 (1975); Quartz v. State, 258 So.2d 283 (Fla.3d DCA), cert. denied, 263 So.2d 825 (Fla.1972).

In Quartz v. State, supra, we acknowledged the better practice was for the trial court to interrogate a defendant so as to satisfy itself that the defendant was fully apprised as to his entitlement to a jury trial and to ensure that the right was intelligently and voluntarily relinquished. We agree with that observation but also observe that such interrogation or colloquy may be conducted by the state attorney or defense counsel in open court.

The defendant’s judgment of conviction is reversed and remanded for a new trial.


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

text:
    LINCOLN AMERICAN LIFE INS. CO., Appellant, v. Marcella PARRIS, Appellee.
    No. VV-107.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.

      Daniel C. Campbell, Crestview, for appellant.
    Dale E. Rice, Crestview, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Lincoln American appeals from a trial court order denying its motion to set aside a default, entered by the clerk upon Lincoln American’s apparent failure to serve and file its answer promptly on the due date. Initial service of process was made on the Insurance Commissioner as agent for the insurer, headquartered out of this state. In fact Lincoln American’s answer was served by mail one day before the due date, and service was “complete upon mailing.” Fla. R.Civ.P. 1.080(b). The default was entered on the day after the due date, three days before the clerk received the tendered answer by mail. The trial court did not regard the answer as too tardily filed after “service,” Fla.R.Civ.P. 1.080(d), but treated it as a nullity because it was signed by a Memphis, Tennessee lawyer who was not admitted to practice in Florida, though others in his Memphis firm were so admitted. We quite agree with the circuit court that the lawyer’s casual practice of appearing in a foreign court without permission, Fla.R. Jud.Admin. 2.060(b), deserves rebuke; yet we also think the lawyer’s violation is mitigated-at least sufficiently to avoid this harsh result to his client-by the shortness of time available to arrange for Florida counsel to serve a timely answer, and by counsel’s apparent intention to secure Florida counsel for further appearances. Therefore, trusting that Lincoln American’s Tennessee counsel will develop other more appropriate means to protect their client’s interests in such situations, we think the default should be considered the result of excusable neglect. There was an ample showing of a meritorious defense. Fla.R. Civ.P. 1.540(b).

REVERSED.

BOOTH and SHAW, JJ., concur.


text:
    DAVID CLARK & ASSOCIATES, INC., Appellant, v. Lowell E. KENNEDY, Jr., et al., Appellees.
    No. VV-192.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.

      Stephen H. Durant of Martin, Ade, Birch-field & Johnson, Jacksonville, for appellant.
    James R. Parks and Geralyn M. Atkinson, Tallahassee, for appellees.
   MASON, ERNEST E., (Ret.), Associate Judge.

This is an appeal by appellant, David Clark & Associates, Inc., of an order of the Unemployment Appeals Commission (UAC) dated April 3, 1980. The UAC added an additional finding to the decision of the appeals referee. Based on that finding, the UAC overturned the referee’s decision, declaring that his decision was not supported by competent substantial evidence.

The appellee, Lowell E. Kennedy, had been employed by the appellant. He left his job but returned shortly thereafter. He worked on a construction site performing various laboring functions. The claimant was apparently subjected to some forms of harassment and abusive treatment. As a result of this treatment, the claimant left work a second time after only eight days on the job. Mr. Kennedy filed a claim for unemployment benefits, but a claims examiner in Jacksonville disqualified the claimant from receiving benefits for having left his employment without good cause attributable to the employer. See Section 443.-06(1), Florida Statutes (1979).

Mr. Kennedy appealed to an appeals referee who held a hearing in Jacksonville on January 11, 1980. The referee in his order agreed with the claims examiner’s determination. While the referee found that Mr. Kennedy may have felt he was being harassed, the referee found that a prudent person would not have left suitable work under similar circumstances. The appellee appealed the UAC. The UAC added an additional finding indicating that Mr. Kennedy was subjected to berating and abusive language. This treatment was found to be enough to reasonably impel the average person to give up his or her employment. The UAC reversed the referee and awarded benefits to the claimant.

The UAC maintains that under Section 443.07(4)(c), Florida Statutes (1979), it has the right to “affirm, modify or reverse the findings and conclusions of the appeals referee.” With that we find no fault, because it has been held that the UAC has the right to reverse an appeals referee based on evidence in the record. Varig Brazilian Airlines v. Fla. Dept. of Commerce, 354 So.2d 921 (Fla. 3rd DCA 1978). However, there is a prerequisite to reversal and presumably modification of an appeals referee’s findings and conclusions. It must be determined that there is no competent substantial evidence to support the referee’s determination. Under Section 443.07(4)(c), Florida Statutes (1979), the UAC must hon- or a referee’s determinations, if they are based on competent substantial evidence. Catholic Social Services v. State Dept. of Commerce, Board of Review, 365 So.2d 427, 429 (Fla. 1st DCA 1978). The UAC cannot reverse a referee when his decision is based on competent substantial evidence. Taylor v. State Dept. of Labor & Employment Security, 383 So.2d 1126, 1127 (Fla. 3rd DCA 1980); General Telephone Co. of Florida v. Board of Review, 356 So.2d 1357, 1358 (Fla. 2nd DCA 1978).

The reason for this is that the hearing officer or appeals referee in an administrative proceeding is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence. McCray v. Dept. of H.R.S., 384 So.2d 980 (Fla.3d DCA 1980). The principles discussed above apply with equal weight to an attempted modification of a hearing officer’s determinations under Chapter 120, Florida Statutes. See Samson v. Bureau of Community Medical Facilities Planning of Dept. of Health & Rehabilitative Services, 363 So.2d 412, 415-416 (Fla. 1st DCA 1978). It is apparent that an attempted modification of an appeals referee’s determinations by the UAC under Section 443.07(4)(c), Florida Statutes (1979), is an administrative proceeding demanding as a prerequisite the absence of competent substantial evidence in the record. Although the UAC found a lack of competent substantial evidence, such a finding came after the UAC modified the referee’s findings. Since it appears to us upon a review of the record that there is ample competent substantial evidence in it to support the referee, we reverse the order of the UAC and remand this case to the UAC with orders to substitute the referee’s decision for the UAC’s decision.

Reversed.

LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    STORACE, HALL AND HAUSER, P. A., Appellant, v. MIAMI NATIONAL BANK and Lifetime Communities, Inc., Appellees.
    No. 79-1812.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Hall & Hauser and Andrew Hall and Richard F. O’Brien, Miami, for appellant.
    Myers, Kaplan, Levinson, Kenin & Richards and Thomas R. Spencer, Jr., Lapidus & Stettin and Herbert Stettin, Miami, for ap-pellees.
    Before HUBBART, C. J., and NESBITT and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Lewis v. Gramil Corp., 94 So.2d 174, 176-77 (Fla.1957).


text:
    AMERICAN DRUGGISTS INSURANCE COMPANY, Appellant, v. CITY NATIONAL BANK OF DETROIT, Appellee.
    No. 79-2147.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrill, Hamann, Jennings & Kniskern and Patricia H. Thompson, Miami, for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final summary judgment under review is affirmed upon a holding that: (a) the record before the trial court aside from the Michigan default judgment, was sufficient to support the summary judgment entered below [see R. 1-7, 11-16, 20-24]; (b) the Michigan default judgment, which was rendered against the defendant’s principal herein, was properly considered by the trial court to support the otherwise valid summary judgment entered below; (c) the defendant’s affirmative defenses were properly struck by the trial court as stating legally insufficient defenses; and (d) the plaintiff was properly allowed to bring the instant lawsuit. See Scholtz v. Hartford Accident & Indemnity Co., 88 F.2d 184 (5th Cir. 1937); Lake County v. Massachusetts Bonding & Insurance Co., 75 F.2d 6 (5th Cir. 1935); § 493.09(1), Fla.Stat. (1979); 10 Williston on Contracts § 1256 (1967); Annot., 59 A.L.R.2d 752 (1958).


text:
    Nickole CRIMSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-50.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    J. Edward Worton, Key West, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The appellant lent his gun, knowing it was to be used by four others in the commission of a robbery. Upon conviction as a principal, being an aider and abettor in the crime of armed robbery, per Section 777.-011, Florida Statutes (1979), he was sentenced to a ten-year term with a mandatory minimum three-year sentence per Section 775.087(2), Florida Statutes (1979). This appeal ensued.

The appellant urges error as to two points: first, the sufficiency of the evidence to sustain the conviction and, second, the giving of the mandatory three-year minimum sentence.

As to the first point, we find no merit. Lee v. State, 153 So.2d 351 (Fla. 1st DCA 1963); Graham v. State, 160 So.2d 717 (Fla. 2d DCA 1964); Crum v. State, 172 So.2d 24 (Fla. 3d DCA 1965). As to the second point, we find error. The three culprits who were at the scene of the crime, who did not handle the gun, could not have been given a three-year minimum sentence upon conviction of armed robbery. Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977); Earnest v. State, 351 So.2d 957 (Fla.1977); McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978). Therefore, we find it was error to give the appellant a three-year minimum sentence upon conviction, when he was not present at the scene.

Therefore, we affirm the conviction and the adjudication of guilt, but we modify the sentence by striking therefrom the provision relating to the three-year mandatory minimum sentence.

Affirmed as modified.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. PYTHIAN SISTERS, INC. et al., Appellees.
    No. 80-74.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Janet Reno, State Atty., and Theda R. James, Asst. State Atty., for appellant.
    Spain & O’Donnell, John Lipinski, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The state of Florida has brought a plenary appeal from an order entered by the trial court requiring the return of property seized pursuant to warrants for gambling devices used in bingo games. No arrests resulted and no charges were filed against the charitable institutions from which the property was taken. We treat this appeal from a non-appealable order as a petition for writ of certiorari, Fla.R.App.P. 9.100, 9.140(c), and deny the relief sought.

Contrary to the trial court’s ruling, Section 933.14, Florida Statutes (1979) is the pertinent statute applicable to these proceedings. Section 933.14(1) permits a claimant of contraband to show “upon sworn petition and proof submitted” that the seized contraband was “held, used, or possessed in a lawful manner”.

We find that although their petition was unsworn, claimants satisfied compliance with the statutory provisions by presenting sworn testimony that they were charitable organizations licensed under Section 849.-093, Florida Statutes (1979) to conduct bingo games. There was no evidence that the items seized were used in bingo games. The trial court correctly found the items seized did not violate statutory provisions and ordered their return.

Certiorari denied.

      . The state previously filed a petition for writ of certiorari which was denied. State of Florida v. Pythian Sisters, Inc., 382 So.2d 905 (Fla. 3d DCA 1980).

      . Seized were all mixers with balls, display boards, devices used to mark cards, public address system, closed circuit television cameras with monitors, and United States currency.


text:
    Roberto PINON and Jacqueline Pinon, Appellants, v. INTERNATIONAL HARVESTER COMPANY, a foreign Corporation, Appellee.
    No. 80-105.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Carl M. Lambert, Miami, for appellants.
    Smathers & Thompson and Douglas L. Oppenheimer, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant seeks damages from appellee by demonstrating an agency relationship between appellee and the car dealership from which she purchased her used vehicle. She appeals from an adverse summary judgment on that issue. We affirm.

Appellee’s contract with the offending dealership as a franchise agreement, and the elements of agency are not found within its four corners; injured third persons, arguably including appellant sub judice, may nonetheless assert such a relationship based on estoppel, apparent authority, or ratification. However, absent here is the principal’s prior or subsequent representation, either express or by implication, that the dealership acted as its agent; it is appellant’s burden to demonstrate such representation, Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975), cert. denied 336 So.2d 599 (Fla.1976); she was unable to allege facts bringing appellee’s status to issue: Summary judgment was properly entered.

Affirmed.


text:
    William and Jean TOUT, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellee.
    No. 80-373.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Cunningham, Albritton & Lenzi, P.A., and Franklin D. Greenman, Marathon, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Carl W. Schwait, Miami, for appel-lee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The Touts, defendants below, appealed from a final judgment entered in favor of Hartford Accident & Indemnity Company (Hartford), as subrogee for Michael S. Greenwald (Greenwald).

The Touts entered into a land sale contract for the purchase of a home owned by Greenwald. The contract permitted the Touts to rent the premises at a stipulated monthly sum prior to closing. Additionally, the contract between the Touts and Green-wald contained the following exculpatory clause: “Seller assumes risk of loss from fire or otherwise until closing .. ..” While the Touts were in possession as tenants, a fire broke out in the kitchen of the premises resulting in damage in the amount of $9,068.96, which was paid to Greenwald by Hartford under a homeowner’s insurance policy it had issued. Hartford then initiated this subrogation action against the Touts to recover the amount paid.

The testimony of the parties reveals that on November 1, 1976, while preparing the evening meal, Mrs. Tout realized she was late picking up her child from school. Mr. Tout, who was home at the time, drove his wife to pick up their child. Unfortunately, Mrs. Tout had neglected to turn off the electric range before leaving and upon their return they discovered the kitchen ablaze. In their answer to the sub-rogation claim filed by Hartford, the Touts asserted the exculpatory clause cited above as an affirmative defense. Hartford’s motion to strike this defense was granted, which the Touts alleged to be error. We disagree.

While the ruling of the trial court is supportable on Section 83.47(l)(b), Florida Statutes (1975), which makes agreements to limit or preclude liability void, see also Fuentes v. Owen, 310 So.2d 458, 459 (Fla. 3d DCA 1975), we prefer to rest our affirmance of this portion of the challenged order on the ground that a limitation of liability for one’s negligent acts cannot be inferred unless such intention is expressed in unequivocal terms. Ivey Plants, Inc. v. F.M.C. Corporation, 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974).

The issue proceeded to trial where a jury rendered a verdict against both Mr. and Mrs. Tout. Mr. Tout’s motion for directed verdict at the close of all evidence was denied. Mr. Tout argues that this, too, was error because the common law rule rendering a husband liable for the torts of his wife has been abrogated. § 741.23, Fla. Stat. (1975). Mr. Tout’s argument, based upon the cited statute, is unassailable. Nonetheless, Hartford attempts to support the verdict and judgment appealed upon the assertion that Mr. Tout was aware of Mrs. Tout’s cooking activities and failed to superintend or secure thé premises before they jointly left to retrieve their son from school. It is Hartford’s position that this was sufficient to create an inference of his active negligence. We disagree.

Mr. Tout, undeniably, disclaimed any responsibility for the superintendence of his wife’s activities, stating: “That is not my department.” Absent a showing that one spouse has knowledge of the propensities of the other which may give rise to negligence, we think that it would be an unwarranted and pernicious rule which imposed liability upon one like Mr. Tout, who was under no legal duty to manage or superintend his wife’s preparation of the evening meal. See Restatement (Second) Torts, §§ 308, 314, 315 (1965). Accordingly, the denial of Mr. Tout’s motion for directed verdict was error.

For the foregoing reasons, the judgment appealed from is affirmed in part and reversed in part with directions to delete Mr. Tout from the judgment.


text:
    Blanca OLIVERA and Jose Olivera, Appellants, v. DORAL COUNTY CLUB, INC., etc. et al., Appellees.
    No. 80-566.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellants.
    Weiner, Robbins, Tunkey & Ross and Ronald A. Dion, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Plaintiff below sought damages for false imprisonment, slander, and intentional infliction of emotional distress. Summary judgment was entered against her on all counts.

Having carefully reviewed the pleadings and record, we are of the opinion that genuine issues of fact remain, which bear materially on the allegations made. We therefore reverse.

Reversed.


text:
    Mercedes RIGGS, Appellant, v. Ernest H. MORGAN and Pearl V. Morgan, Appellees.
    No. 80-866.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    William Kuypers, Key West, for appellant.
    Henry L. Morgenstern, Key West, for appellees.
    Before HUBBART, C.J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Appeal is taken from the following trial court final order, which clearly recites the facts adduced and relief obtained:

FINAL JUDGMENT
THIS CAUSE came on to be heard upon the plaintiffs’ Second Amended Complaint and the Answer thereto. The Complaint and the First Amended Complaint sought specific performance and injunction. The Second Amended Complaint, however, sought, in addition to specific performance, relief in the form of damages for the removal of the trailer by the defendant MERCEDES RIGGS. The Court having heard the testimony and having examined the proofs offered by the respective parties, and being fully advised in the premises, the. Court makes the following findings:
1. The plaintiffs, ERNEST H. MORGAN and PEARL V. MORGAN, and the defendant JIMMY N. BROWN entered into an oral contract wherein the defendant agreed to sell, and the plaintiffs agreed to buy, the property described as:
Lot 9, Tract B, Bay Point Trailer Park, First Addition, located in Government Lot's 1 and 5, Section 8, Township 67 South, Range 27 East, Saddlebunch Keys, Monroe County, Florida, as recorded in Plat Book 4, page 9, of the Public Records of Monroe County, Florida.
and that the terms of said sale were $2,000.00 down, and the balance of $23,-000.00 payable in monthly installments over a term of twenty (20) years, with interest at the rate of 10% per annum. The deferred payment was to be secured by a promissory note and first mortgage on said property.
2. That pursuant to said oral agreement, the plaintiffs gave a deposit to the defendant JIMMY N. BROWN, took possession of the premises, and made improvements.
3. The defendant JIMMY N. BROWN, in disregard of his contract, sold said premises to the defendant MERCEDES RIGGS, who, the Court finds by sworn testimony, knew of the oral contract between the defendant JIMMY N. BROWN and the plaintiffs herein, and she is not a bona fide purchaser.
4. The facts and circumstances disclosed in the testimony in this case make it clear that the defendant JIMMY N. BROWN was the wife’s agent and he was empowered to act for her in agreeing to sell the house trailer on the premises to the plaintiffs.
5. That the defendant MERCEDES RIGGS has removed and sold said house trailer to a bona fide purchaser and has placed her own house trailer on said premises.
6. That plaintiffs were ready, willing, and able to close the sale of said property upon the terms of the oral contract.
7. That it is clear, certain and definite that the plaintiffs are entitled to specific performance, but specific performance of delivery of the house trailer, which has been disposed of by the said defendant MERCEDES RIGGS, cannot be accomplished, and the Court finds that it is obligated,.having properly acquired jurisdiction, to make complete adjudication of all matters presented to it involved in this cause, and should grant monetary damages against the defendant JIMMY N. BROWN for his inability to deliver said house trailer to the plaintiffs. Now, therefore, it is
ORDERED AND ADJUDGED:
a. That the defendant MERCEDES RIGGS, within thirty (30) days from the date of this Judgment, execute and deliver to Joseph Galletti, Esquire, Attorney for the defendant JIMMY N. BROWN, in escrow, a deed conveying to JIMMY N. BROWN, in fee simple, free of encumbrances, the following described property:
Lot 9, Tract B, Bay Point Trailer Park, First Addition, located in Government Lots 1 and 5, Section 8, Township 67 South, Range 27 East, Saddlebunch Keys, Monroe County, Florida, as recorded in Plat Book 4, page 9, of the Public Records of Monroe County, Florida.
b. That the defendant MERCEDES RIGGS, within thirty (30) days from the date of this Judgment, shall cause to be removed the house trailer which she placed on the above described property.
c. That the defendant JIMMY N. BROWN, within thirty (30) days from the date of this Judgment, execute and deliver to the plaintiffs’ attorney, in escrow, a Warranty Deed conveying to the plaintiffs in fee simple, free of encumbrances, the following described property:
Lot 9, Tract B, Bay Point Trailer Park, First Addition, located in Government Lots 1 and 5, Section 8, Township 67 South, Range 27 East, Saddlebunch Keys, Monroe County, Florida, as recorded in Plat Book 4, page 9, of the Public Records of Monroe County, Florida.
d. That the defendant JIMMY N. BROWN deliver to the plaintiffs, within thirty-five (35) days from the date of this Judgment, a continuation of the Abstract from the time he acquired the title to said property, and deliver same to the plaintiffs’ attorney so he may determine the marketability of said title, and plaintiffs’ attorney be allowed twenty (20) days from the date of delivery in which to examine said continuation of Abstract for the purpose of determining whether said title is marketable and insurable. If the title to said property shall be at that time unmarketable or uninsurable, the parties to this suit may apply to this Court for a reasonable extension of time for the purpose of perfecting said title.
e. If, on examination of said continuation of Abstract, said title is determined to be good and marketable and/or insurable, the plaintiffs shall forthwith pay over to the defendant JIMMY N. BROWN the consideration required under said oral contract and deliver a properly executed promissory note and mortgage on said property as agreed upon, and said transaction shall be closed under the provisions of said oral agreement, and the parties shall pay for the recording of said instruments in accordance with the normal custom in Monroe County, Florida.
f. That the plaintiffs recover from the defendant JIMMY N. BROWN the sum of Thirty-five Hundred Dollars ($3500.00) for his inability to deliver the house trailer to be sold to the plaintiffs, for which let execution issue.
g. That the costs of these proceedings shall be taxed against the defendants JIMMY N. BROWN and MERCEDES RIGGS upon submitting an affidavit of such costs and upon being approved by the Court.
h. The parties to this cause may apply periodically for such further instructions and relief as may be equitable and proper.
DONE AND ORDERED in Chambers at Key West, Monroe County, Florida, this 21st day of March, 1980.
M. Ignatius Lester
CIRCUIT JUDGE

We have reviewed appellant’s contentions with regard to the order set out above, and find them to be without merit. We therefore affirm that order in all aspects.

Affirmed.


author: PER CURIAM. BOOTH, Judge, ERVIN, Judge,

text:
    HENDERSON SIGN SERVICE, Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Appellee. ARROWHEAD CAMPSITES, Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Florida, Appellee.
    Nos. NN-112, NN-113.
    District Court of Appeal of Florida, First District.
    Nov. 19, 1980.
    James P. Appleman, Marianna, for appellants.
    H. Reynolds Sampson and Margaret-Ray Kemper, Tallahassee, for appellee.

      . Section 479.16(12) excepts signs from the provisions of Ch. 479 which are within the corporate limits of cities or towns, and adjacent to highways other than interstate and federal-aid primary systems.

   PER CURIAM.

In these consolidated appeals Henderson Sign Service and Arrowhead Campsites appeal from Department of Transportation orders adopting the proposed order of a hearing officer finding that appellants’ signs adjacent to an interstate highway are in violation of Section 479.17, Florida Statutes (1977).

The evidence as to the location of all three signs was essentially the same: All were well within the area prohibited by the 660-foot setback provisions of Section 479.-11, Florida Statutes (1977), and none displayed permit tags. Appellants offered no evidence. They now argue the Department did not establish by substantial and competent evidence that the signs were outside or within an incorporated city or town; that the signs were in fact signs as defined by Chapter 479. We reject these contentions. The structures were clearly visible as signs from the highway by DOT’s outdoor advertising inspector. While the Department offered no specific proof that Interstate 10 had been designated as part of the national system of interstate and defense highways by the Department of Transportation, we conclude that we may take judicial notice that Interstate 10 was and is part of the federal highway system. The highway adjacent to the signs was referred to by the Department’s witness as Interstate 10. Matters relating to transportation and roads have been judicially noticed on numerous occasions. E. g, State Road Department v. Lewis, 170 So.2d 817 (Fla.1964); Welker v. State, 93 So.2d 591 (Fla.1957). Moreover, the burden of proving entitlement to any exceptions of the chapter’s advertising requirements is upon appellants, not the Department. Walker v. State, Dept. of Transp., 352 So.2d 126, 127 (Fla. 1st DCA 1977).

Appellants’ primary contention is that since the Department failed to establish the date of the erection of the signs, or the date when the Department designated the highway as part of the national system of interstate and defense highways, one could conclude that the signs were lawfully erected or were lawfully in existence prior to the official designation of the highway as an interstate highway. And in the absence of such proof, they argue, there is no authority for the Department to remove nonconforming signs until the end of the fifth year after they have become nonconforming, relying upon Section 479.23, Florida Statutes (1977). The problem with appellants’ argument is that none of the signs displayed the permit tag required by Section 479.07(1), and appellants offered no explanation for their failure to affix a tag upon their signs. Section 479.07(4) states:

The construction, erection, use or maintenance of any advertising structure, advertising sign or advertisement which is required by this chapter to be permitted, without having affixed thereto a currently valid permanent permit tag shall be prima facie evidence that the same has been constructed or erected and is being operated, used or maintained in violation of the provisions of this chapter, and shall be subject to removal by legal representation of the department.

The effect of a statute which declares that certain facts shall constitute prima facie evidence of other facts is to relieve the party in whose favor they operate of the necessity of producing evidence on the issue, and to cast on the other party the burden of going forward with the evidence. Leonetti v. Boone, 74 So.2d 551 (Fla.1954). When the Department presented evidence showing that no permit tags were affixed to the signs, a statutory presumption arose that the signs were illegally erected, which remained until the signowners presented testimony to rebut the presumption. None was presented. The Department established its case.

Alternatively the signowners contend that if their signs are found to be illegally erected and maintained, and therefore subject to removal, compensation must nevertheless be paid for the actual replacement value of the materials in those signs pursuant to Section 479.24(1), which provides:

(1) Compensation shall be paid upon the removal of all signs lawfully in existence on December 8,1971 or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such signs. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971 shall be fully compensated by the method herein provided.

Construing Section 479.24(1), this court in Brazil v. Div. of Admin., Dept. of Transportation, 347 So.2d 755 (Fla. 1st DCA 1977), ordered a signowner compensated for the replacement value of materials in his sign which was found to have been erected and maintained adjacent to an interstate highway in violation of the spacing requirements of Chapter 479. The District Court of Appeal, Fourth District, placed a different interpretation of Section 479.24(1) in LaPointe Outdoor Advertising v. Florida Dept. of Transportation, 382 So.2d 1347 (Fla. 4th DCA 1980), and the Supreme Court recently granted certiorari to resolve the conflict.

As appears from his separate opinion in this case, Judge Ervin would recede from Brazil and deny compensation to the appellant signowners whose signs are now subject to removal. Judges Booth and Robert Smith, for different reasons, choose not to reach the question of compensation. Judge Booth considers that because appellant has not yet raised the question of compensation before the agency we should not reach that question now. While Judge Robert Smith conceives that any legal question inhering in the case and raised in this court can and ordinarily should be decided, if it can fairly be decided on the existing record, Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844, 850 (Fla. 1st DCA 1980), he thinks it undesirable for a panel of this court to reconsider a prior decision of this court, perhaps leading to en banc proceedings, when the jurisdiction of the Supreme Court has attached because of that prior decision and that Court may reasonably be expected soon to make the law uniform on an important subject.

For the reasons stated, then, we decline to consider appellants’ claims for compensation based on Brazil and Section 479.24(1), and in affirming the Department’s order for removal of appellants’ offending signs we remit the question of compensation to the Department to abide the Supreme Court’s decision in LaPointe.

AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., specially concurs, with opinion.

ERVIN, J., concurs and dissents, with opinion.

BOOTH, Judge,

specially concurring:

The issue before us is the sufficiency of the evidence to establish that the signs in question violated Florida Statutes Chapter 479. The Department adduced evidence that the signs were subject to the requirements of Chapter 479 and that those requirements were not complied with. This prima facie case was not refuted by the sign owners. I agree, therefore, that the order below be affirmed.

On appeal to this court, appellant also raises claims for compensation for signs removed, an issue neither raised nor litigated below. For its part, appellee asks this court to recede from Brazil v. DOT, 347 So.2d 755 (Fla. 1st DCA 1977), on the ground that that case allows compensation for illegal signs. This court should not rule on issues not litigated below, and the Brazil case, being correctly decided on its facts, should not be overruled.

In Brazil, the sign owner made substantial expenditures toward the erection of a sign at a particular intersection in an industrial/commercial area prior to December, 1971. Thereafter, further expenditures and completion of the sign, save for the on-site erection occurred, all prior to the effective date in January of 1972 of spacing requirements applicable to the area. Under these circumstances, this court ruled that summary judgment should not have been entered against the sign owner on his cross-claim for compensation and that compensation for the value of the materials used in the sign was required under Florida Statutes § 479.-24, which provides:

Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971 shall be fully compensated by the method herein provided.

The sign owner in Brazil recovered no compensation for labor cost or value of the structure as erected. The limited compensation provided was allowed on destruction of a sign which had been substantially completed and was lawfully in existence prior to the effective date of the restrictions. The case is not, as contended by appellee, a financial inducement to build illegal signs.

In LaPointe Outdoor Advertising v. DOT, 382 So.2d 1347 (Fla. 4th DCA, April 30, 1980), the court denied compensation to a company that began construction of a sign in July of 1976, some four years after adoption of State spacing requirements; was denied a State permit for erection of the sign in September of 1976; and erected its sign in violation of both spacing and permitting requirements. The court in La-Pointe recognized the distinction between LaPointe and Brazil, that “LaPointe’s sign was never ‘lawfully in existence .. .

I concur in the affirmance of the orders below.

ERVIN, Judge,

concurring and dissenting.

I concur with that portion of the majority’s opinion affirming the Department’s orders finding appellant’s signs adjacent to an interstate highway were in violation of the setback provisions of Chapter 479. I now feel, however, that Brazil v. Div. of Admin., State Dept. of Transportation, 347 So.2d 755 (Fla. 1st DCA 1977), permitting compensation to a signowner for the replacement value of materials in a sign which was illegally erected and maintained nearby an interstate highway in violation of the spacing requirements of Chapter 479, was incorrectly decided and that the decision of the Fourth District in LaPointe Outdoor Advertising v. Fla. Dept. of Transp., 382 So.2d 1347 (Fla. 4th DCA 1980) represents the better view.

In Brazil, we construed Section 479.24(1) as allowing compensation for the materials in a sign illegally erected near an interstate highway after December 8,1971. There we stated that the first sentence of Section 479.24(1) provides compensation only for signs lawfully erected before December 8, 1971, or for signs lawfully erected thereafter “which later became nonconforming,” but we found “plain meaning” supporting the signowner’s position in the last two sentences of subsection (1). Finding in Section 479.24(1) an ambiguity, we resolved it in favor of compensating the signowner for the value of materials in a sign illegally erected in May, 1972.

On further considering the text of the 1971 amendment to Chapter 479, its evident purpose, and its legislative history, I conclude, as did the Fourth District in LaPointe, that Section 479.24(1) provides no compensation for the forced removal of signs erected after December 8, 1971, in violation of the setback or spacing restrictions of the Highway Beautification Act and its implementing Florida legislation. Instead, it is my view that Section 479.24(1) allows payment for the removal of nonconforming signs only, as the term nonconforming is understood within the context of zoning and land use regulations which permits, for example, a use which was in existence before the passage of a zoning ordinance to continue thereafter, subject to certain conditions, as a means of accommodating a reasonable balance between the interests of the community and those of the private owner. See State ex rel. S.A. Lynch Corp. v. Danner, 159 Fla. 874, 33 So.2d 45, 47 (1947).

By applying the same construction to the word nonconforming as provided in Section 479.24(1), I consider that the statute provides full compensation, awardable in eminent domain proceedings, for the removal of any sign which was lawfully erected near an interstate highway before July 1, 1971, and it awards full compensation “limited to the actual replacement value of the materials in such sign” in two instances: (1) The forced removal of a sign “erected or completed after December 8,1971” near a county or state highway which later became nonconforming to the implementing legislation by the construction of a nearby interstate highway, and (2) the forced removal of a sign erected between July 1, 1971 and the effective date of the Act, December 8, 1971. But, the statute allows no compensation for the forced removal of a sign illegally erected or maintained. This construction of Section 479.24(1) is supported by the legislative history of the 1971 Act and leaves no room for any inference that the legislature intended the Brazil result.

When legislation was first proposed authorizing compensation to owners of signs forcibly removed, H.B. 2522 (introduced at the 1971 regular session on May 31, 1971) contained the same language as does the first sentence which ultimately was enacted as Section 479.24(1): “Compensation shall be paid upon the removal of all signs lawfully in existence at the time of this act or signs lawfully erected which later become nonconforming.” (The remaining two sentences presently comprising subsection (1) were not offered until the special session of November and December, 1971.) H.B. 2522 also proposed, as is now provided in 479.-24(2), that “compensation shall be made pursuant to the state’s eminent domain procedures, . . .. ” H.B. 2522 thus proposed full compensation to be paid following condemnation proceedings to owners of signs which were either lawfully in existence as of the Act’s effective date, or lawfully erected thereafter and which became nonconforming due to the later construction of a nearby interstate highway.

H.B. 2522 and its companion, S.B. 1577, were not enacted due to the legislature’s adjournment without final action on either bill.

The above legislation was reintroduced at the special session convening June 1, 1971 and adjourning, June 24,1971, by H.B. 27-C and S.B. 44-C. The House bill had a proposed effective date of July 1, 1971. In addition to containing the language previously quoted in H.B. 2522, H.B. 27-C proposed adding Section 479.25 to read: “All nonconforming outdoor signs erected after the effective date of this act shall be erected at the owners [sic] peril and said owner shall bear the costs of removal.” This language no doubt was designed to clarify the legislative intent that only owners of signs which became legally nonconforming to the implementing legislation were entitled to compensation-not owners of signs which were illegally erected following the Act’s enactment.

H.B. 27-C passed the House during the June session, but the proposed legislation again died because the Senate adjourned without acting on it.

At the special legislative session of November and December of 1971, H.B. 7-D, and its committee substitute, preserved the same language as was proposed in former House bills 2522 and 27-C, which was finally enacted into law as the first sentence to Section 479.24(1). The language specifically denying compensation to owners of illegally nonconforming signs was not, however, retained. Its absence, nonetheless, compels no inference that the legislature intended to compensate owners who had illegally erected signs. The first sentence to proposed 479.24(1), as stated, remained intact and clearly expressed an intent to compensate only persons whose signs were lawfully in existence at the time of the Act, or whose signs became lawfully nonconforming thereafter. Had that one sentence only comprised subsection (1), following the Act’s passage, there would have been no cause for Brazil to hold that its compensation provisions permitted an inference that an owner of a sign illegally erected was, upon its removal, entitled to indemnification. The erroneous construction given the statute by Brazil resulted from a misunderstanding of the legislative purpose in amending the subsection by adding to it two sentences. That purpose, as the following sequence of events reveals, was simply to establish a method for compensating owners who had lawfully erected or maintained signs during certain designated periods of time.

On December 3, 1971, Representatives MacKay, Stephens and Spicola offered, and the House adopted, a floor amendment to the committee substitute, adding subsection (5) to Section 479.24, which permitted, as it does now, compensation to signowners for the replacement value of signs erected after July 1, 1971, it being presumed that a person who erected a sign following such date did so “with the knowledge of the .. . pendency of this legislation.” Immediately following the adoption by the House of the amendment, the same three representatives who had offered it then proposed adding to subsection (1) the two sentences which Brazil construed as requiring compensation to be paid upon the removal of an illegal sign:

(1) Compensation shall be paid upon the removal of all signs lawfully in existence at the time of this act or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after the effective date of this act shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after the effective date of this act shall be fully compensated by the method herein provided.

The House adopted this amendment and C.S. for H.B. 7-D was passed containing Section 479.24(1). The Senate also passed C.S. for H.B. 7-D, which became effective as Chapter 71-971, Section 9, Florida Laws, on December 8,1971. That date was inserted in Florida Statutes 1973 by revision in lieu of the bill’s references to the “effective date of this act” in Section 479.24(1).

Given the above history, I am convinced that the intent behind the floor amendment to subsection (1) was to place signs which might be lawfully erected after December 8,1971 in the same compensable category as those signs which had been erected after July 1,1971, but to allow full compensation without restriction upon removal of signs lawfully erected before July 1, 1971. Therefore the words in the second sentence to subsection (1), limiting “compensation for any sign erected or completed after the effective date of this act ... to the actual replacement value of the materials in such sign ...” (e. s.), must be, as LaPointe found, modified by the provisions of the first sentence, thereby restricting compensation by that method upon the removal of signs “lawfully erected” after December 8, 1971, “which later became [lawfully] nonconforming” due to the construction of a nearby interstate highway.

This is the only reasonable interpretation which I consider can be given the statute. The construction placed upon it by Brazil can only lead to an emasculation of the Department’s efforts to enforce the Act, since Brazil permits a signowner to erect a sign in violation of Chapter 479 with the knowledge that once it is removed he may receive compensation for the replacement value of the materials in the sign. Such a result must be condemned as unreasonable. It should be presumed that the legislature intended to enact an effective law. Continued adherence to the Brazil rule would render inefficacious for all practical purposes the Department’s enforcement powers over outdoor advertisements erected near interstate highways. I would therefore expressly recede from that language in Brazil which allows compensation to signowners for signs illegally erected near interstate highways after December 8, 1971.

      . Section 479.01(13) defines interstate highway as “any highway officially designated as part of the national system of interstate ... highways by the Department of Transportation and approved by the appropriate authority of the Federal Government.”

      .If the sign was lawfully in existence prior to the effective date of December 8, 1971, it thereafter became nonconforming and not subject to removal until after the fifth year from its nonconformity and then only upon the payment of compensation. Sections 479.23 and .24.

      . LaPointe Outdoor Advertising v. DOT, 382 So.2d 1347 (Fla. 4th DCA, April 30, 1980):
      Brazil did not discuss the ‘lawfully in existence’ language ... and instead emphasized the second sentence, limiting compensation for signs erected after December 8, 1971 to the actual replacement value of the materials. We decline to follow this portion of Brazil. Compensation for removal of a sign erected in violation of the law essentially condones the initial unlawful act and totally ignores the first sentence of Section 479.-24(1), F.S. (1977). Because LaPointe’s sign was never ‘lawfully in existence,’ the Department correctly denied compensation.

      . I disagree with the special concurring opinion that the facts in Brazil are distinguishable from those in LaPointe, thus justifying compensation to the signowner in the former, while validly denying it in the latter. In Brazil, the sign was erected in May, 1972 in violation of the spacing restrictions of Chapter 479; therefore it should not, for the reasons stated infra, have been considered one which was lawfully nonconforming. The effect of Brazil was correctly stated by Judge Booth’s majority opinion in Walker v. State, Dept. of Transp., 366 So.2d 96, 97, n. 4 (Fla. 1st DCA 1979), as “holding owner of sign erected after December 8, 1971, ... was entitled, ... to compensation based on the actual value of the materials in the sign, .. .. ” (e. s.)

      . Fla. H.R. Jour. 12/3/71, special session, p. 37. Subsection 479.24(5), as originally proposed by Representatives MacKay, Stephens and Spico-la, limited compensation to the “depreciated value of the materials,” but Representative Harris’s amendment to the amendment was adopted, changing “depreciated” to “replacement.”

      . The reference to July 1, 1971 was to the proposed effective date of H.B. 27-C, previously introduced at the June special session.


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

text:
    William N. BARLOW, Appellant, v. STATE of Florida, Appellee.
    No. OO-238/T1-115.
    District Court of Appeal, of Florida, Fifth District.
    Nov. 19, 1980.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order withholding adjudication of guilt, which among other provisions, required him to serve two years probation and to make restitution to the victims of his assault.

Appellant first contends thjit the order sentencing him to two years probation was incorrect because the court had announced that the probation would be comprised of two consecutive one year terms. The state concedes that appellant’s position is correct. We therefore remand for correction of the order of probation. See McClure v. State, 371 So.2d 196 (Fla. 2d DCA 1979).

Appellant also contends that condition nine of the order requiring him to pay one-half of the total restitution to the victims was incorrect. We disagree and affirm.

In Fresneda v. State, 347 So.2d 1021 (Fla.1977), the Florida Supreme Court held that a condition of probation requiring a probationer to pay money to the victim of his crime must be predicated by notice and the opportunity to be heard so that the defendant may challenge the amount, presumably in regard to reasonableness as well as the causal relationship to his offense. The court also noted that the section providing for the terms and conditions of probation requires that the amount of restitution be determined by the court.

In Fresneda, however, there was a motion directed to the trial court to correct an illegal sentence. That was not done in the instant case. See Pope v. State, 368 So.2d 676 (Fla. 1st DCA 1979). Objections to trial court sentences such as appellant raises here should be raised first before the trial court. See Jones v. State, 384 So.2d 956 (Fla. 5th. DCA 1980), and Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980).

We remand to the trial court for correction of the order to conform to the oral announcement of the court that appellant would be required to serve two consecutive one year probationary terms.

AFFIRMED in part; REVERSED and REMANDED in part.

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


text:
    Angel I. AYALA, Appellant, v. J. M. FIELDS, INC., Appellee.
    No. 78-2315/T4-269.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.

      Joseph H. Williams, Winter Park, for appellant.
    Lamar D. Oxford, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Angel I. Ayala, an employee of an air conditioning service company, appeals a summary judgment denying him recovery for injuries received while repairing appellee J. M. Fields’ air conditioning equipment.

The point raised by appellant is whether the trial court erred in entering summary judgment in favor of appellee. We affirm.

Appellee’s air conditioning system was antiquated and beyond hope of repair. Pri- or to the accident, appellant had told the store managers that the equipment needed a complete overhaul or replacement. In the month prior to the accident, the fire department had to be called to the store five times; this was not because of fire, but because a vapor discharging from the air ducts looked like smoke.

On the day of the accident, appellant responded to a service order and attempted to braze up a hole in a leaking oil line. He bled the pressure in the system, but apparently there was a leak in a valve which permitted freon gas to back up, mix with oil, and spray out on appellant. The oil ignited from appellant’s torch and he suffered severe burns.

Appellant contends that this matter is controlled by Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), and that the question of negligence was for the jury. Appellee, as the party moving for summary judgment, was required to show that there was no issue as to any material fact and that it was entitled to judgment as a matter of law. Wills v. Sears Roebuck & Co., 351 So.2d 29 (Fla.1977).

In Pittman, this court said that generally a property owner owes two duties to an invitee: “He must keep his property reasonably safe and protect the visitor from dangers of which he is or should be aware.” Pittman at 1193.

In the context of a landowner’s duty to employees of an independent contractor, the principle has been applied as follows:

[Wjhere such employee.is injured as a proximate result of conditions and defects which his employer, the independent contractor, is engaged to correct, liability cannot be predicated on such unsafe conditions because the employee has actual or constructive notice of such conditions.

McCarty v. Dade Div. of American Hospital, 360 So.2d 436, 438 (Fla. 3d DCA 1978). Does this distinction change the result here? We think not. While it is true that appellant warned appellee that its equipment was worn out and dangerous, he candidly admitted in his deposition that he was not concerned about the danger from his welding so much as having to work in a confined area without a helper. Appellant’s knowledge of the condition of appellee’s equipment was clearly superior to that of appel-lee. His decision to work on the equipment was with complete familiarity and knowledge of its condition. In determining the method of servicing the equipment, he did not rely to any extent on appellee’s duty to him. Appellee, by calling on appellant’s employer to repair the equipment was fulfilling its duty, imposed by law, to maintain its property in a reasonably safe condition. Pittman v. Volusia County.

Appellant has cited this court’s opinion in Squitieri v. Aetna Casualty & Surety Co., 382 So.2d 730 (Fla. 5th DCA 1980), as authority for his position that summary judgment was improperly entered in the instant case. In Squitieri, however, there was an issue as to whether plaintiffs knowledge of a latent defect was less than the defendant’s. That issue is not present in the case before us.

AFFIRMED.

ORFINGER and COWART, JJ., concur.


text:
    William Louis LAWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1246/T4-589.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from an order of judgment of conviction and sentence entered by the Circuit Court for Seminole County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears.

On May 7,1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the order granting probation is hereby affirmed.

AFFIRMED.

COBB, SHARP and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COWART, Judge.

text:
    Robert H. RITTER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1709/T4-698.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.

      Robert J. Buonauro, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant, accused of burglary of a conveyance, filed a motion under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, alleging all the facts showing the commission of that crime and circumstances tending to identify him as the perpetrator. The State filed no written traverse (demurrer) but made an oral one at the hearing which was later written and filed. The trial court denied the motion. Appellant pled nolo contendere reserving the right to appeal that ruling.

Appellant argues that the oral traverse later written and filed does not comply with the rule procedure and that, therefore, his alleged facts are undisputed. Appellant contends that when facts alleged in the motion are untraversed they are deemed admitted and that if undisputed facts establish a valid defense a motion under the cited rule should be granted. He also contends that the State must prove identity at trial and that in a circumstantial evidence case the evidence must not only establish guilt but must be inconsistent with every reasonable hypothesis of innocence. We agree. Appellant then concludes that his motion should have been granted since his undisputed facts constitute a valid defense to the offense as they do not establish a prima facie case of guilt because they did not negative all hypotheses of innocence. It is in his conclusion that appellant’s logic and argument fails. His undisputed facts do not constitute a valid defense nor do they negative an essential element within the meaning of those terms in cases such as Camp v. State, 293 So.2d 114, 115 (Fla. 4th DCA 1974). Appellant has merely set up facts which are, arguably, insufficient alone to sustain a conviction. Appellant’s problem is that the State has not conceded, nor under this rule can it be made to concede, that the facts in the motion are the only facts the State will present at trial. As a procedural matter on a motion under this rule the accused must verify facts so inconsistent with his guilt that if untraversed their resulting acceptance as truth will establish his innocence. Most often such facts will establish a classic affirmative defense, such as self-defense, insanity, or entrapment, but can relate to any facts which are mutually exclusive to facts essential to the State’s case, such as alibi, the accused’s possessory right to property allegedly stolen, or may show the application of an exception in a statute defining an offense.

The facts set forth in the accused’s motion are consistent with his guilt and, therefore, need not to have been traversed because they are insufficient to justify a dismissal under this rule. The trial court’s order denying appellant’s motion is

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: ORFINGER, Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Dulcie Corenia BRUMMITT, etc., et al., and Hartford Accident and Indemnity Company, Appellees.
    No. 79-410.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.

      Terry C. Young of Giles, Hedrick & Robinson, P. A., Orlando, for appellant.
    William E. Johnson of Parker, Johnson, Owen & McGuire, Orlando, for appellee, Hartford.
   ORFINGER, Judge.

Burlie R. Brummitt, Sr. was killed when an automobile he was driving collided with a Seaboard train. His daughter Estelita was also killed and a son, Burlie, Jr., was injured. When suit was filed against Seaboard by Dulcie Corenia Brummitt individually and as personal representative of the estate of both decedents, and also as next friend of her minor son Burlie, Jr., Seaboard filed a counterclaim against Dulcie as personal representative of Burlie Brummitt, Sr.’s estate, and also filed a third party complaint against Hartford, seeking contribution from Hartford as Burlie, Sr.’s insurer, alleging that Burlie, Sr. was negligent and that such negligence proximately caused the accident. On motion of Hartford, the third party complaint was dismissed with prejudice and this appeal followed. We reverse.

The order dismissing the third party complaint does not state the grounds upon which it was based, so we must determine if any of the grounds stated in the motion will support the order. In so doing, we assume all facts in the third party complaint to be true. Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956). One of the stated grounds in the motion to dismiss invokes the protection of the family immunity doctrine, but in a case not available to the trial judge at the time of the order appealed from, we have held that the decision of the Supreme Court in Shor v. Paoli, 353 So.2d 825 (Fla.1977), must be construed to permit an action for contribution against a parent as well as against a spouse. Withrow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980). The family immunity doctrine does not require a dismissal of the third party complaint here.

Those grounds which remain and which have not been withdrawn by appellee deal essentially with the form of the pleadings. Hartford is alleged to be the insurer of Burlie Brummitt, Sr. and Seaboard claims the benefit of that insurance as a third party beneficiary. This is sufficient to allege Seaboard’s standing and to show the proper joinder of Hartford. Bussey v. Shingleton, 211 So.2d 593 (Fla. 1st DCA 1968), aff’d, Shingleton v. Bussey, 223 So.2d 713 (Fla.1969); Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970) aff’d 237 So.2d 163 (Fla.1970). Hartford’s contentions that the coverage of the insurance policy was not sufficiently described nor was a copy of the policy attached will not support the dismissal of the third party complaint with prejudice, because if the policy exists, Hartford is a party to it and will have knowledge of its contents as well as its coverage. While it would have been better for Seaboard to allege that it did not have a copy of the policy, we do not feel that the failure to so allege is so prejudicial as to be fatal to the cause, under the circumstances of this case. Sachse v. Tampa Music Co., Inc., 262 So.2d 17 (Fla. 2d DCA 1972).

We find the remaining grounds of the motion insufficient to support the dismissal, so the final order dismissing the third party complaint is reversed and this cause is remanded to the trial court for further proceedings not inconsistent herewith.

REVERSED and REMANDED with directions.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


text:
    Pearline J. WALLS, Appellant, v. STATE of Florida, Appellee.
    No. 79-477.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Orange County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 23, 1980, the Fifth District Court of Appeal gave the appellant thirty (30) days within which to file a brief in her own behalf, which brief was filed May 8, 1980. The court has reviewed the brief and record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby

AFFIRMED.

DAUKSCH, C. J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).