author: BERANEK, Judge.

text:
    Charles Philip HUDSON, Appellant, v. STATE of Florida, Appellee. Charles Philip HUDSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-2569, 79-2581.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    As Amended May 13, 1981.
    Rehearing Denied in No. 79-2581 June 11, 1981.
    Rehearing Denied in No. 79-2569 June 17, 1981.
    Steadman S. Stahl, Jr., of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This opinion disposes of separate appeals from two different Circuit Court criminal convictions. We affirm one conviction and reverse the other.

Defendant was charged in Broward County with violating Section 812.014(l)(a) and (2)(a), Florida Statutes (1977), by committing grand theft after trust. It was alleged that the defendant stole certain gemstones which were the property of John Asikas. After a jury trial, defendant was convicted and sentenced to two and one-half years for the crime of grand theft.

Defendant was also charged in Martin County with violating Section 812.019, Florida Statutes (1979), by dealing in stolen property. It was alleged that defendant exchanged or traded some of the same gemstones which he had previously stolen from John Asikas for real estate in Martin County. After a non-jury trial, defendant was convicted of dealing in stolen property, under the “Florida Anti-Fencing Act” and sentenced to five years, three of which were to be served on probation. Defendant appeals both convictions.

There is conflict in the evidence as to the ownership of the stones at the time in question. The facts are generally that defendant entered into a formal partnership agreement with an individual named John Asikas. The purpose of the partnership was to trade valuable gemstones for personal and real property. It was agreed that all partnership property would be owned by the partners in equal shares as tenants in common. A safety deposit box was to be maintained for the safekeeping of partnership property and for the keeping of property belonging to Mr. Asikas alone. The written agreement, however, did not specify precisely what was to constitute partnership property. At some time prior to January 21,1979, Mr. Asikas had gems valued in excess of $900,000 delivered to the defendant’s home in Broward County. On that particular date, defendant reported to the police that the gems had been stolen from his home. An investigation began and defendant was traced through various advertisements in Broward County newspapers offering to trade gold and gems for real estate. Eventually, defendant was arrested in possession of some of the stolen gems and was also found to be involved in exchanging some of the same gems for real estate in Martin County.

Defendant was convicted of theft in Bro- • ward County and dealing in stolen property in Martin County.

Defendant raises three points in each appeal. In the Broward County case, defendant contends: (1) that the trial court erred in denying his motion to suppress evidence obtained at the time of his arrest; (2) that the court erred in denying his requested jury instructions on the issue of whether partnership property could be the subject of larceny by a partner; and (3) that the court erred in denying his motion for judgment of acquittal on the theory that a co-owner of the property cannot be found guilty of larceny of the property which he jointly owns with a partner. In the Martin County case, defendant argues: (1) that the court erred in denying his motion to suppress evidence seized at the time of arrest; (2) that the court erred in failing to direct a judgment of acquittal based upon the theory that a co-owner of property cannot be guilty of larceny of property which he jointly owns with his partner; and (3) that Section 812.-025, Florida Statutes (1979), bars a conviction of both theft of property and dealing in the same stolen property.

We deal initially with defendant’s second point in the Broward County case. The information alleged that the gems were owned by one John Asikas. Defendant contended that the gems had been transferred by Asikas to the partnership. According to Section 620.68(1), Florida Statutes (1979), a partner is a co-owner with his partners of specific partnership property. Under the defendant’s theory of the case, as a co-owner of the gems, he could not be guilty of larceny of this property. See Hinkle v. State, 355 So.2d 465 (Fla.3d DCA 1978). Defendant submitted a requested jury instruction to this effect which was denied by the trial court over objection. A defendant is entitled to have the jury instructed on the law applicable to his theory of defense if there is evidence introduced to support the instruction. Laythe v. State, 330 So.2d 113 (Fla.3d DCA 1976). The State contends there was absolutely no evidence upon which the jury could have found the gems to have been partnership property. Our review of the testimony and evidence, particularly the cross-examination of Mr. Asi-kas, convinces us to the contrary. There was sufficient evidence that the property here belonged to the partnership to warrant the giving of a jury instruction on the effect of partnership property on the crime of larceny. Ownership of the property was a question of fact for the jury to decide and the instruction should have been given.

We conclude that defendant’s first and third points raised in regard to the Broward County conviction are without merit. There was probable cause for defendant’s arrest and the motion to suppress was properly denied. A jury question existed as to the issue of ownership and a directed verdict for defendant would have been improper in this regard. The Broward County conviction for grand theft is thus reversed due to the failure of the trial court to properly instruct on the law as to partnership property.

The Martin County conviction presents the question of whether defendant can be convicted and sentenced for both theft of property and dealing in the same stolen property. The Anti-Fencing Act enacted in 1977 provides in relevant part as follows:

812.005 Short title. — Sections 812.012-812.037 shall be known as the Florida Anti-Fencing Act.
812.012 Definitions. — As used in ss. 812.012-812.037:
‡ sfc s}:
(7) “Traffic” means:
(a) To sell, transfer, distribute, dispense, or otherwise dispose of property.
(b) To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.
jfc $ * * * >js
812.019 Dealing in stolen property.—
(1) Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.-083, and 775.084.
(2) Any person who initiates, organizes, plans, finances, directs, manages, or supervises the theft of property and traffics in such stolen property shall be guilty of a felony of the first degree, punishable as provided in ss. 775.082, 775.083, and 775.-084.
812.025 Charging theft and dealing in stolen property. — Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

Defendant asserts he may not be convicted and sentenced for both larceny and dealing in the same stolen property. Section 812.-019, Florida Statutes (1979), was enacted in 1977, simultaneously with the enactment of Section 812.025, Florida Statutes (1979). Since then, we have located only one case construing the dealing statute. In Coley v. State, 391 So.2d 725 (Fla. 1st DCA 1980), the First District dealt with an argument against convictions of both the offense of robbery and the offense of dealing in stolen property, the subject matter of both offenses being the same property. The court noted correctly as follows as to the offenses of larceny, dealing in stolen property and the prior common law offense of “receiving stolen property”:

The “inconsistency” argument advanced by appellants stems from the rule, well established in Florida case law, that larceny (or theft) and receiving stolen property are inconsistent substantive offenses, so that one cannot at the same time commit both offenses as to the same property. Adams v. State, 60 Fla. 1, 53 So. 451 (1910); State v. Brooks, 348 So.2d 417 (Fla. 1st DCA 1977).
The reason for the rule, prohibiting conviction of both larceny and receiving or concealing the same stolen property, lies in the fact that the actions which constitute the taking or asportation of the property so far as the larceny is concerned are inseparable from those actions which constitute the receiving or concealment of the property. Thus, the receiving or concealment is considered not something that occurs subsequent to the larceny, but is in fact a part of it. See Adams v. State, supra.
However, we are dealing here with the statutory offense of “dealing” or “trafficking” in stolen property under Section 812.019, Florida Statutes, which differs from the old common law offense of “receiving stolen property.” Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980).
The offense of dealing in stolen property is committed not merely by possessing stolen property knowing the same to be stolen, which was essentially the former offense of “receiving stolen property.” The offense of “dealing” in stolen property is committed by one who “traffics” in such property, the term “traffic” as defined in Section 812.012(7)(a) meaning “To sell, transfer, distribute, dispense or otherwise dispose of property” or, under subparagraph (7)(b), “To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” We conclude, therefore, that the actions which constitute the offense of dealing in stolen property encompass the sale, distribution or transfer of the property, or the receiving, possessing or obtaining control of the property with the intent to sell, transfer or distribute it. These additional elements, furthermore, are separate and distinct from the essential elements of the crime of theft. Thus, absent the prohibition of the statute, Section 812.025, we can envision no reason why a person might not be the thief and also be guilty of dealing in the same stolen property.

We agree with the First District and, absent the prohibition of Section 812.025, we also can envision no reason why a person might not be the thief and also be guilty of dealing in the same stolen property. Apparently, the Legislature felt otherwise. Section 812.025, Florida Statutes (1979), ends with the very specific words that a guilty verdict may be returned “on one or the other, [theft or dealing] but not both, of the Counts.”

Based upon the statute alone, we conclude that defendant here could not be properly convicted of both theft and of dealing in the same stolen property. It appears that the theft and the exchange of gems for real estate were all part of the same scheme or course of conduct by defendant herein. Section 812.025 as cited above prohibits a conviction of both crimes if charged in the same information and we can see no reason for indulging a different interpretation merely because defendant was here charged in separate informations.

By virtue of our prior reversal, the conviction in Broward County stands reversed and vacated. Other than the preceding statutory construction argument, we find no error in the Martin County trial. The motion to suppress was properly denied and a directed verdict of acquittal on the issue of partnership property was not required as a matter of law. We, therefore, affirm the Martin County conviction. We reverse the Broward County conviction and vacate the sentence. Although this reversal is based upon the absence of an appropriate jury instruction, there is no basis for retrying the defendant because his later conviction in Martin County of dealing in stolen property bars a conviction of theft of the same property.

As indicated by the First District Court of Appeal, we also are not quite certain as to why these two crimes may not be dealt with separately. It is perhaps the result of many years of experience with the crime of “receiving stolen property.” In any event, the defendant here stands convicted of dealing in stolen property and this conviction is affirmed.

AFFIRMED AS TO DEALING IN STOLEN PROPERTY CONVICTION; REVERSED AS TO GRAND THEFT CONVICTION.

HERSEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . We are also perplexed by other aspects of the Anti-Fencing Act. Does mere receipt of stolen property constitute the crime of “Dealing” under Section 812.019 absent the intent to sell, transfer or dispose of the property? Are Sections 812.019(2) and 812.025 inconsistent? How could a defendant be proved guilty of both theft and dealing under Section 812.019(2) if he could not be convicted of both under Section 812.025?


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM. BERANEK, Judge,

license: Public Domain

text:
    Gary P. BRUNS, Appellant, v. STATE of Florida, Appellee.
    No. 80-323.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    On Rehearing Feb. 3, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with and convicted of robbery of property having a value of less than $100. He raises four points on appeal, one of which requires discussion and reversal.

Although the evidence presented at trial would have supported a conviction of petit larceny, appellant’s request for a jury instruction on that crime was denied. In Haynes v. State, 377 So.2d 771 (Fla. 4th DCA 1979), we held that larceny is necessarily included in the crime of robbery and that it is legally impossible to prove robbery without proving larceny.

Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. Appellee concedes it was error not to do so, but argues the error was harmless. The supreme court held that it is reversible error per se not to instruct on the next immediate lesser included offense, while it may be harmless error not to instruct on an offense two steps removed from the offense charged. State v. Abreau, 363 So.2d 1063 (Fla.1978). See also Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980). In reference to the charge sub judice “[t]he determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of [Arbeau, supra ] ... to the facts of what transpired in the trial court.” Bell v. State, 394 So.2d 979, 980 (Fla.1981). Here, there was neither charge nor evidence of property having a value of $100 or more.' Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.

We disagree with appellee’s argument that the trial court’s failure to instruct on petit larceny was harmless error because the jury was charged as to attempted robbery, which appellee contends was one step removed from the crime charged. The “one step” test in Abreau, supra, applies to necessarily included offenses as that category is described in Brown v. State, 206 So.2d 377 (Fla.1968), and Florida Rule of Criminal Procedure 3.510. Attempts are a category separate from necessarily included offenses in the foregoing rule as well as in Brown, supra. Sub judice the charge was properly given on the separate offense of attempted robbery, but this did not cure the harmful error in not also charging on the necessarily included offense of larceny.

Accordingly, we reverse and remand for new trial.

REVERSED and REMANDED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.

ON REHEARING

PER CURIAM.

We adhere to our original opinion but certify the following question to the Supreme Court of Florida pursuant to Fla.R. App.P. 9.030(a)(2)(A)(v) as being of great public importance:

If a defendant is convicted by overwhelming evidence of a greater offense, and the jury is instructed on an attempt to commit that offense, is the failure to instruct on the next lesser included offense, which carries a penalty less than the attempt, harmless error under State v. Abreau, 363 So.2d 1063 (Fla.1987)?

In addition, we hold that appellant’s first point; namely, the trial court’s failure to give jury instructions on penalties, is further ground for reversal. Tascano v. State, 393 So.2d 540 (Fla.1980); Murray v. State, 403 So.2d 417 (Fla.1981).

DOWNEY and GLICKSTEIN, JJ., concur.

BERANEK, J., concurs in conclusion only.

BERANEK, Judge,

concurring in conclusion.

I concur in the conclusion but would limit the ruling to a reversal based upon Tascano v. State, 393 So.2d 540 (Fla.1980).

      . We note that the supreme court has tentatively agreed with the recent recommendations made by the Committee on Standard Jury Instructions in Criminal Cases to consolidate the four, categories of lesser included offenses articulated in Brown v. State, 206 So.2d 377 (Fla.1968) into two. The distinction will still be made between offenses necessarily included in the offense charged, which will become category one, and attempts, which will be part of the other category. In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Fla. Case Nos. 56,734 and 58,799, Opinion filed April 16, 1981. Vol. 6, No. 17 FLW 305, 306.


author: HENDRY, Judge. HENDRY, Judge.

text:
    Ernest L. ROLLS, Samuel A. Sardinia, and Slip-Form International, Ltd., Appellants, v. BLISS & NYITRAY, INC., and Cory DeVries, Appellees.
    Nos. 80-82, 80-260.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    On Rehearings Feb. 5, 1982.

      William A. Ingraham, Jr. and Bertram A. Sapurstein, Buchbinder & Elegant and Harris Buchbinder, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee and Gerald F. Richman, Miami, for appellees.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   HENDRY, Judge.

This is a consolidated appeal from a final judgment and an order taxing costs entered against appellants, defendants in the Circuit Court. Plaintiffs, appellees herein, brought suit seeking relief for breach of contract and fraud stemming from what may be characterized simply as a dispute between architects and builders engaged in an overseas construction project. The trial court, sitting without a jury, found for plaintiffs on the fraud count and assessed compensatory and punitive damages against defendants. Contractual relief was denied plaintiffs, however, the court holding that the Florida architect-licensing statute operated to bar this cause of action due to the fact that plaintiff Cory DeVries was not licensed as an architect in this state. We find error in the denial of plaintiffs’ contractual remedy and further find that error was committed in awarding damages based on plaintiffs’ cause of action for fraud. We therefore reverse the final judgment and remand for entry of judgment on the contract in accordance with the views expressed herein.

Plaintiff Bliss & Nyitray, Inc., a local engineering firm, was searching for work outside of the United States during the “building crunch” of 1974-75. Robert Monroe, a previous acquaintance of Nyitray, contacted Nyitray concerning some construction projects in Algeria. (Monroe is not a party to this action; he was an expert in the slip-form method of construction, and later became President of defendant Slip-Form International, Ltd.) They discussed modifying certain designs to the slip-form method. Nyitray agreed to assist in finding an architect who spoke French and understood the metric system and European techniques useful in Algeria. He introduced Cory DeVries, an architect with these qualifications, and who was licensed in the Bahamas and several other foreign countries, to Monroe. DeVries worked with Monroe and prepared some preliminary plans. Bliss & Nyitray reviewed these plans for structural applications before Monroe returned to Algeria to conduct negotiations.

Monroe began to arrange with So. Tra. Wa., an agency of the Algerian government for a contract to build a low cost government housing project — the “Bainem project” — of some 400 residential units for approximately six million dollars. Monroe sought financial backing from defendants Ernest Rolls and Samuel Sardinia, and introduced them to Nyitray in late 1975. Sardinia arranged for a company in which he was part-owner to invest in the corporation to be formed and Rolls contributed his own capital. Sardinia and Rolls incorporated Slip-form International, Ltd. in Washington, D.C. on February 5, 1976.

On July 7, 1976, plaintiffs Bliss & Nyit-ray, Inc. and Cory DeVries as a joint venture contracted with Slip-form to perform the design phase of the Bainem project for $150,000. This contract was executed by DeVries, “Architect”, and Bliss & Nyitray, Inc., “Engineers”, jointly termed “Architect”. It provided for DeVries to immediately begin preparation of the architectural portion of the contract documents, which involved adaptation of plans prepared by an Italian architectural firm to the slip-form technique. This work was to continue for four weeks, at which time, if no agreement had been executed between So. Tra. Wa. and Slip-form, DeVries could terminate work. An initial payment of $30,000 provided in the contract was to be made at the time of execution of an agreement between Slip-form and So. Tra. Wa., at which time the subject contract would automatically go into effect. Further payments were to be made, and portions of the plans were to be completed, within specified periods from the time at which the contract became effective. The contract additionally provided for arbitration of disputes arising therefrom, and that the governing law would be that of the principal place of business of the “Architect”. (The office of the “Architect” is described in the contract as being in Miami Beach, Florida, the location of the Bliss & Nyitray firm.) Provisions were also included for interest and attorneys’ fees in connection with non-payment of any sums due the “Architect” under the contract.

Since Slip-form did not execute a contract with So. Tra. Wa. within the four week period, DeVries stopped work. (An agreement between Slip-form and So. Tra. Wa. was later executed in March, 1977, and went into effect in December, 1977.) However, plaintiffs were persuaded by Monroe to continue preparation of the plans so that he could submit the 25 percent completed portion of the design phase to So. Tra. Wa., and two payments totalling $11,000 were made to plaintiffs in September and December, 1976. The 25 percent portion of the plans was submitted to Monroe in December, 1976.

By an addendum dated February 24,1977 to their contract, plaintiffs and Slip-form, by Monroe as President, agreed to changes in the payment schedule tied to revised dates for submission and acceptance of each phase — 25%, 50%, 75%, 100% — of the plans. Testimony of plaintiffs indicated that they entered into the Addendum pursuant to Monroe’s oral representations that they would be paid from monies Slip-form received from So. Tra. Wa., which payments were to be made on receipt and acceptance of 25%, 50%, 75% and 100% of the design plans.

In late March, 1977, Nyitray and DeVries personally delivered the 50% completed plans to Slip-form in Algeria. However, plaintiffs did not receive the $40,000 payment provided in the Addendum for this portion of the plans, and made continual demands for payment. Although testimony appears conflicting, Nyitray testified he was told by defendant Rolls that plaintiffs would receive the $40,000 as soon as Slip-form received a second payment from So. Tra. Wa. Plaintiffs continued to prepare the 75% portion of the plans while demanding payments due. Rolls authorized payment of an additional $5,000 on account. DeVries went to Algeria near the end of April, 1977, to deliver the 75% portion pursuant to the Addendum. He delivered the plans based on Monroe’s representations to Nyitray that the second payment from So. Tra. Wa. was being expedited and plaintiffs would receive the $40,000 as soon as the monies arrived from Algeria.

At a meeting held June 15,1977, between plaintiffs, Monroe and Rolls (testimony was conflicting as to whether Sardinia was also present), plaintiffs advised that the plans were nearing completion but would not be submitted until payment was received. According to Nyitray’s testimony, Monroe and Rolls denied having received any monies from So. Tra. Wa. in May and said that same had been “lost” at the Chase Manhattan Bank. Plaintiffs received two $5,000 payments as a result of this meeting.

On July 2, 1977, DeVries delivered the 100% completed plans to Slip-form in Algeria. Plaintiffs learned at the end of July from So. Tra. Wa.’s former agency-head that all payments due Slip-form had been made, but were unable to reconfirm this information.

In late August or early September plaintiffs received a copy of a letter from C.T.C., an Algerian government agency with final approval authority for the project, requesting revisions to the 100% plans, which they then undertook to make. Plaintiffs met with defendants in September and discussed the revisions, as well as Slip-form’s failure to make payments required by the contract and Addendum. Although contradicted by Sardinia’s testimony, Nyitray testified that Sardinia denied Slip-form had received certain payments from So. Tra. Wa. Plaintiffs requested that Sardinia and Rolls personally guarantee payment before they would release the final revised plans. This guarantee was refused.

Plaintiffs did succeed, however, in obtaining another addendum agreement, dated September 30, 1977, and signed by Sardinia as Vice-President of Slip-form, which provided that Slip-form would pay $5,000 on receipt of “their next payment on account Bainem project, but no later than November 1, 1977,” and payment in full according to the terms of the contract immediately on receipt of the final payment from So. Tra. Wa. for the design phase. (This final payment was due Slip-form 30 days from obtaining C.T.C. approval for the structural plans.) Nyitray testified that had he known that Slip-form had already received and spent the second and third payments from So. Tra. Wa., totalling some $300,000, they would not have delivered the completed, revised plans. (Plaintiffs received only the $5,000 payment.)

In mid-December, 1977, Slip-form transmitted to plaintiffs a letter from C.T.C. requesting more information as to a product specified in the plans, to which plaintiffs responded directly. In late January, 1978, the Algerian government agency wrote Slip-form, approving plaintiffs’ suggestions subject to testing which was the responsibility of Slip-form. Plaintiffs had at this time fully performed their part of the subject contracts.

In mid-February, 1978, Rolls and Sardinia met with Nyitray and informed him of final approval subject to testing and sought his advice regarding conducting the tests, which he gave them. They then stated for the first time that the second and third payments from So. Tra. Wa. had been received in May and July, 1977, but stated by way of explanation that Monroe had taken the monies to Switzerland. (Monroe resigned from Slip-form in February, 1978.)

On March 30, 1978, plaintiffs billed the defendants for the sum of $95,868.96, representing the balance due on the contract, plus amounts for extra work in connection with revisions, and interest. Plaintiffs filed suit on July 7, 1978, with counts seeking, inter alia, recovery on the contract, compensatory and punitive damages for fraud, and to pierce the corporate veil. Slip-form’s answer set forth as an affirmative defense the contractual provision for arbitration and, further, counterclaimed for compensatory damages of one million dollars and punitive damages of five million dollars based on the alleged failure of plaintiffs to perform under the contract. The answer of defendants Rolls and Sardinia also raised the affirmative defense of arbitration.

Plaintiffs learned through discovery that Slip-form had received the second and third payments due from So. Tra. Wa., two payments of about $145,000 each having been credited to Slip-form’s Chase Manhattan Bank account in May and July, 1977. The first payment was transferred the following day by Rolls’ and Sardinia’s joint signatures to Slip-form’s Jacksonville, Florida bank account. The second payment was drawn against by a check written by Rolls and Sardinia to a New York law firm for $140,-000, for one of Sardinia’s companies.

The cause came on for jury trial, but it was stipulated that it would proceed non-jury after the court suggested this alternative, due to the impossibility of completing the trial within the time frame of one week for which it had initially been set, and for which the jurors had been empanelled.

Final judgment was entered on October 81, 1979, and included provisions which we summarize, as follows:

‘Plaintiffs were precluded from recovery on their contract against Slip-form due to the failure of plaintiff Cory DeVries to be registered as an architect in accordance with Chapter 467, Florida Statutes [1977]; however, in the event of reversal on appeal as to this issue, plaintiffs would be entitled to recover the sum of $95,868.96 plus interest, costs and attorneys’ fees;

Plaintiffs met the burden of proving fraud by the individual defendants and were entitled to recover compensatory damages on this count in the sum of $9,750 against defendants, jointly and severally, in addition to punitive damages of $10,000 against Rolls and $50,000 against Sardinia;

Defendant Slip-form would take nothing on its counterclaim against plaintiffs.’

On January 10,1980, the court entered its order and final judgment taxing costs against all defendants jointly and severally in the amount of $2,431.15.

Defendants appeal the adverse final judgment imposing compensatory and punitive damages based on a theory of fraud. They also appeal the order and final judgment taxing costs against them. These appeals were consolidated by order of this court. Plaintiffs cross-appeal from the final judgment insofar as it denied their contract recovery based on application of Chapter 467, Florida Statutes (1977), and awarded inadequate compensatory damages. They also cross-appeal from the order taxing costs against defendants.

We first address the holding that the statute in question constitutes a bar to plaintiffs’ purely contractual remedy. The statute in question, former Chapter 467, Florida Statutes (1977), entitled “Architects,” is a type of professional regulation statute commonly enacted by the states to govern the conduct of certain persons whose occupations are said to affect the public interest, such as e. g., contractors, pharmacists, C.P.A.’s, teachers, pawnbrokers, insurance agents, cosmetologists, funeral directors, engineers and architects. 53 C.J.S. Licenses § 30 at 563-64.

In reviewing the applicability of this statute to the facts sub judice we first recognize the controlling legal principle, successfully urged by appellants at trial, that contracts which are made in violation of such professional regulation statutes are generally held to be invalid and unenforceable at law. 51 Am.Jur.2d Licenses and Permits § 66 at 72; 53 C.J.S. Licenses § 59 at 711; 15 Williston on Contracts, 3d ed., § 1766 at 256-58.

The reasoning behind this rule is explained in 5 Am.Jur.2d Architects § 4:

As in the case of professional and occupational licenses generally, the effect of the failure of an architect or one holding himself out as an architect to procure a license to practice his profession on the validity and enforceability of a contract for his services or upon his right to recover for services rendered depends, in the main, upon the purpose of the legislature in requiring the license. If the purpose in requiring the license is to furnish protection to the public by preventing incompetent persons from assuming to act in that particular capacity, the contract of an unlicensed person is invalid. Accordingly, the rule has been laid down that the failure of one holding himself out as an architect to procure a license required for public protection and to bar those lacking in the requisites of learning and skill precludes recovery for professional services rendered in his capacity as an architect.

5 Am.Jur.2d Architects § 4 at 666 (citations omitted). Case law from the several states bears out the rule that non-licensed architects are barred from recovery on agreements to perform services which pursuant to law they are not licensed to perform. Hedla v. McCool, 476 F.2d 1223 (9th Cir.1973); Food Management, Inc. v. Blue Ribbon Beef Pack, Inc., 413 F.2d 716 (8th Cir.1969); Dalton, Dalton, Little, Inc. v. Mirandi, 412 F.Supp. 1001 (D.N.J.1976); Jary v. Emmett, 234 So.2d. 530 (La. 3d Cir.Ct.App.), writ refused, 236 So.2d 502 (La.1970). Florida courts have recognized the rule as it pertains to the practice of various regulated professions, see, e. g., D & L Harrod, Inc. v. U. S. Precast Corp., 322 So.2d 630 (Fla. 3d DCA 1975) (carrier); Edwards v. Trulis, 212 So.2d 893 (Fla. 1st DCA 1968) (stock broker), and as to the practice of architecture, see, Gaisford v. Neuschatz, 201 So.2d 635 (Fla. 4th DCA), cert. denied, 207 So.2d 689 (Fla.1967) (implicitly recognizing that a contract made in violation of Chapter 467 would be unenforceable, but finding plaintiff’s activity an isolated transaction not constituting the practice of architecture so as to bring into play the rule). Additionally, we note that statutes which, like Chapter 467, impose a penalty on the unlicensed practice rather than an explicit prohibition on the making or performance of these “illegal” bargains, have been applied to bar contractual recovery. As stated in 6A Cor-bin on Contracts § 1513:

[T]he legislature may prohibit the carrying on of a specified business or profession without first obtaining a license, permit, or certificate from some examining or inspecting officer or board of officers. In such a case, the carrying on of the business or profession may involve the making and performance of bargains of various kinds; and the courts have declared in innumerable cases that the bargains before them were made illegal because the requirement of the license or certificate was not complied with by one of the bargaining parties.

6A Corbin on Contracts § 1513 at 722-23. See generally 51 Am.Jur.2d Licenses and Permits § 66 at 72-73.

Having examined the rule and its pertinence to the statute under consideration, we now state our conclusion that the rule may not be invoked to bar plaintiffs’ recovery in the instant case. We begin by noting that the facts under which Chapter 467 has been applied to bar plaintiffs’ contractual recovery here are, so far as we have been able to discover, without precedent in the law. No reported decision has turned on the question of whether architectural services whose end result is a building located outside of the regulating state can be said to fall within the statutory prescription against “practicing architecture in this state,” so as to deny recovery on a contract — admittedly entered into within the state — under the principle discussed supra. We are guided, however, by certain rules of statutory construction and interpretation, as well as substantive law relating to the limits constitutionally placed on the states’ powers to enact legislation as an exercise of their police powers.

Although the statute in question contains no statement of its purpose, it is clearly such a “police powérs” measure. In reaching this determination we have examined judicial construction as to the purposes of similar statutes of other states, which constructions demonstrate that the powers exercised in these acts are “police powers.” We have also been instructed as to the intended purpose of the statute by reference to the statement of purpose contained in the current statute, which provides:

§ 481.201 Purpose. — The Legislature finds that improper design and improper construction supervision by architects of buildings primarily designed for human habitation or use present a significant threat to the public.

§ 481.201 Fla.Stat. (1979) (emphasis supplied). Based on the foregoing, we infer that the statute in question has as its main object the protection of the public, or in other words, that the authority for and the limitations on the enactment stem from the state’s police powers, (while an incidental taxing power basis may also be recognized in that the act requires payment of certain licensing and examination fees.)

One fundamental limitation on the state’s police powers is that a state may only legislate in exercise of its sovereignty-based powers within its own boundaries, or at least so that the effects of the law are felt there. As stated in an excerpt from 81A C.J.S. States § 17:

[E]very state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. Conversely, the jurisdiction of a state is restricted to its own territorial limits and does not extend beyond its boundaries ... A state may create legal liabilities against an absent person whose conduct produces consequences within its borders which it forbids; and a state may validly regulate activities, persons and property within its jurisdiction, although extraterritorial repercussions ensue, provided such regulation is vital to the welfare of its inhabitants, as the propriety of regulation is determined by its focus on internal problems, not by the range of its influence.

81A C.J.S. States § 17 at 297-98.

If we construe the statute so as to effectuate a valid purpose, it is clear that it may be applied extraterritorially (as against an architect who resides outside of the state) only when this application “is vital to the welfare of its inhabitants.” To paraphrase the purpose contained in our current statute, inserting this limitation, the clear intent of Chapter 467 Florida Statutes (1977), and its successor, Chapter 481, Part I, Florida Statutes (1979), is to: “protect the public from the significant threat presented by improper design and improper construction supervision by architects of buildings primarily designed for human habitation or use [in the State of Florida.]” Or to put it another way, the prohibited activity, the “practice of architecture in this state” by an unlicensed architect, [§ 467.17 Fla.Stat. (1977)], contemplates the “rendering or offering to render services in connection with the design and [with the] construction [in the State of Florida] of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures...” [§ 481.203(6) Fla.Stat. (1979).]

In further support of our interpretation, we find persuasive the analysis applied by a federal court in the case of Dalton, Dalton, Little, Inc. v. Mirandi, 412 F.Supp. 1001 (D.N.J.1976). The court considered the question of whether the New Jersey architect-licensing statute would bar recovery on a contract made by an out-of-state architect for services in connection with a building to be built in New Jersey and reasoned that it would, as follows:

Land is regarded in law as unique, sui generis, and always subject to local law. The rendering of professional services for the construction of a permanent building has such a firm nexus to land as to invest it with the same local character. This is because the building becomes part of the land, and therefore, its proper design is inevitably subject to local regulation at all levels. A contract to prepare plans and specifications for a New Jersey building can only be made by an architect licensed by New Jersey, or by a professional corporation formed under its laws. When made by others, the contract is illegal.

412 F.Supp. at 1004-05 (emphasis supplied).

In reaching our conclusion that the statute should not be applied to preclude plaintiffs’ recovery in the case at bar since the object of the bargained-for services was a building to be constructed outside of the borders of the state, we have kept in mind the rule that “a statute should not be construed so as to bring unreasonable or absurd consequences when, considered as a whole, the statute is fairly subject to another construction that will aid in accomplishing the manifest intent and purposes designed.” Leach v. State, 293 So.2d 77, 78 (Fla. 1st DCA 1974); State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979).

For the reasons set forth herein, and based upon the authorities cited, we reverse the holding of the trial court insofar as the denial of contractual recovery is concerned and remand for entry of judgment in favor of appellees in the amount found by the trial court to be the proper measure of damages should they be allowed to recover on the contract, to-wit: $95,868.96 plus interest, costs and attorneys’ fees. Recovery of contract damages in this amount is in conformity with the “guiding principle in determining proper elements of damage in an action for breach of contract. . .[:] just compensation; placing the injured party in as advantageous a position as he would have occupied had his contract not been broken.” Popwell v. Abel, 226 So.2d 418, 422 (Fla. 4th DCA 1979); Juvenile Diabetes Research Foundation v. Rievman, 370 So.2d 33 (Fla. 3d DCA 1979). In further support of the award, it may be said, based on the record before us, that the items of damages comprising this amount were “reasonably forseeable or contemplated by the parties as a result of the breach.” Plantation Key Developers, Inc. v. Colonial Mortgage Co. of Indiana, Inc., 589 F.2d 164, 169 (5th Cir.1979); 13 Am.Jur.2d Building and Construction Contracts § 76 at 75.

As to the holding that plaintiffs were entitled to recover compensatory and punitive damages for fraud, it is our conclusion that this ruling constitutes reversible error. The nature and amount of any damages to plaintiffs resulting from defendants Rolls’ and Sardinia’s representations that they had not received payment from So. Tra. Wa. and so were unable to pay plaintiffs, were not pled or established in the record with the specificity required to sustain the awards of $9,750 compensatory damages against defendants jointly and severally and $10,000 and $50,000 punitive damages against Rolls and Sardinia, respectively. The compensatory damages for fraud which were prayed for in several counts of the complaint were identical to the measure of recovery sought in the separate count for breach of contract, i. e., that plaintiffs be compensated for the loss of their bargain in the amount of $95,868.96 plus extras, or in other words, that they be put in the position they would have occupied had defendants not breached the contract.

There is authority in Florida to support recovery of punitive damages in an action based on breach of contract where the breach is “attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort.” Griffith v. Shamrock Village, Inc., 94 So.2d 854, 858 (Fla.1957); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976); Johnson v. Lasher Milling Co., Inc., 379 So.2d 1048 (Fla. 1st DCA 1980). However, it is well established that compensatory damages for fraud are an essential part of the cause of action which must be shown to sustain a judgment for punitive damages based on fraud, American Motorcycle Institute, Inc., v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980); Hauser v. Van Zile, 269 So.2d 396 (Fla. 4th DCA 1972); 37 Am.Jur.2d Fraud and Deceit § 347 at 465-66. Furthermore, compensatory damages recovered under a contract theory may not be used as the underlying basis for an award of punitive damages under a separate tort count, American Motorcycle Institute, Inc. v. Mitchell, supra; Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla. 3d DCA 1979).

Therefore, since plaintiffs failed to prove that they sustained compensatory damages based on a theory of fraud which were in any way separate or distinguishable from their compensatory damages based on the contract, we conclude that plaintiffs have failed to meet the strict pleading and proof requirements necessary to recover compensatory and punitive damages based on fraud, and that these damages must therefore be reversed.

One further issue has been raised which merits our attention. Appellants Rolls and Slip-form urge error in the trial court’s denial of Slip-form’s motion to compel arbitration pursuant to the contract and for stay pending arbitration. We cannot agree. The contract clause providing for arbitration stated that demand for same “shall be made within a reasonable time after the claim, dispute or other matter in question has arisen.” Slip-form filed its formal demand for arbitration, which was required by the contract, on March 19, 1979, and its motion to compel arbitration on March 21, 1979, some eight months subsequent to the filing of plaintiff’s complaint herein, and after the cause had been set for trial. Furthermore, a counterclaim was asserted against plaintiffs by Slip-form and defendants actively participated in discovery against plaintiffs, thus placing the issue of waiver of the right to arbitrate, due to laches and the taking of an inconsistent position, before the trial court. Under the circumstances, it was reasonable for the court to conclude that defendants had accepted the judicial forum and waived any contractual right to arbitration. Winter v. Arvida Corp., 404 So.2d 829 (Fla. 3d DCA 1981); Lapidus v. Arlen Beach Condominium Ass’n, Inc., 394 So.2d 1103 (Fla. 3d DCA 1981); Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 346 (Fla.1979); Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974); Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA), cert. denied, 238 So.2d 110 (Fla.1970).

We find no error in the trial court’s assessment of costs against all defendants in the amount of $2,431.15, and affirm the order taxing costs.

The final judgment is reversed insofar as it awards plaintiffs compensatory damages for fraud of $9,750 against defendants jointly and severally, and punitive damages for fraud of $10,000 against defendant Rolls and $50,000 against defendant Sardinia; and insofar as it denied plaintiffs’ recovery of damages based on the contract. Plaintiffs are entitled to recover their contract damages of $95,868.96 plus interest, costs and attorneys’ fees, and the cause is remanded with directions to enter judgment for said amount and items on behalf of plaintiffs.

It is unnecessary to reach the other points raised by cross-appeal in light of our decision.

Affirmed in part; reversed in part, and remanded.

ON REHEARING

HENDRY, Judge.

Following issuance of our opinion on November 3,1981 in this cause, timely motions for rehearing were filed by the individual appellants, addressed to the language of the fourth paragraph preceding the conclusion of said opinion, wherein it is stated, “We find no error in the trial court’s assessment of costs against all defendants in the amount of $2,431.15 and affirm the order taxing costs.” We find that there is merit in appellants’ motions. Accordingly, we grant the individual appellants’ motions for rehearing and delete the portion of the original opinion set forth above.

Appellees/cross-appellants also timely filed a petition for rehearing and for clarification. We are not inclined to grant this petition, and same is hereby denied.

Except as provided herein, we adhere to our original opinion.

        . Chapter 467 (“Architects”), §§ 467.01-467.19 Fla.Stat. (1977), was repealed and replaced effective July 1, 1979, by a successor statute, Chapter 481, Part I (“Architecture”), §§ 481.-201 — 481.233 Fla.Stat. (1979), which, while retaining many of the basic provisions, adds new sections including, inter alia, § 481.201 “Purpose” and § 481.203 “Definitions.” Additionally, the penalty provided for the unregistered practice of architecture under the current statute is a misdemeanor of the first degree, whereas it was a misdemeanor of the second degree under former Chapter 467.

      . § 467.17 Fla.Stat. (1977) provides:
      Penalty for Violations. — It shall be a misdemeanor' of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any person to practice architecture in this state (except as exempted in s. 467.09) or to use the title “architect” ... without being registered as an architect and having a certificate of registration then in force ... or to violate the provisions of this or any other law of the state relating to the registration of architects, (emphasis supplied)

      . § 467.17 Fla.Stat. (1977) (emphasis supplied).

      . 73 Am.Jur.2d Statutes § 166 at 370 provides:
      It is a general rule of law that, where a question of statutory construction is one of novel impression, it is proper to resort to decisions of courts of other states construing statutory language which is identical or of similar import, (citations omitted)

      . See, e. g., Wineman v. Blueprint 100, Inc., 75 Misc.2d 665, 348 N.Y.S.2d 721 (1973) (New York architect-licensing statute intended to safeguard life, health and property of “our” citizens); Markus & Nocka v. Julian Goodrich Architects, Inc., 250 A.2d 739 (1969) (underlying policy of Vermont statute to protect citizens of state from untrained, unqualified and unauthorized practitioners); Oakason v. Lisbon Valley Uranium Co., 154 F.Supp. 692 (D.Utah 1957) (Utah statutes regulating engineers and other professionals are for purpose of protecting the public); Kennoy v. Graves, 300 S.W.2d 568 (Ky.Ct.App.1957) (Kentucky statute requiring license to practice as consulting engineer designed to protect public from being imposed on by persons not qualified to render such professional services); Dick Weatherston’s Associated Mechanical Services, Inc. v. Minnesota Mutual Life Insurance Co., 257 Minn. 184, 100 N.W.2d 819 (1960) (Minnesota statute has as its purpose the public health and welfare, as well as protection of public against incompetence and fraud); Wilson v. Kealakekua Ranch, Ltd., 57 Haw. 124, 551 P.2d 525 (1976) (Hawaii statute designed to protect public from unfit and incompetent practitioners of architecture); Hattis Associates, Inc. v. Metro Sports, Inc., 339 N.E.2d 270, 34 Ill.App.3d 125 (Ill. 1st App. Dist.1975) (Illinois architect act not intended to protect architects by limiting work to licensed architects, but rather, purpose is to protect public from damage caused by work of incompetent and unlicensed architects).

      .As to the propriety of utilizing subsequent legislative enactments in interpreting an earlier statute, see 73 Am.Jur.2d Statutes § 178 at 380-81.

      . E. g., occupational license statutes which penalize the practice of a profession within a state are most commonly applied against architects who are licensed and who reside elsewhere, but who perform architectural services within the regulating state.


author: BARKETT, ROSEMARY, Associate Judge. BERANEK, Judge,

text:
    Mary Emma McBrayer FLEMING, Appellant, v. John West FLEMING, Appellee.
    No. 80-1530.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Feb. 4, 1982.

      Robert L. Koeppel of Koeppel, Stark & Newmark, Miami, for appellant.
    James Fox Miller of Miller & Schwartz, Hollywood, for appellee.
   BARKETT, ROSEMARY, Associate Judge.

This is an appeal from a final judgment of dissolution of marriage which incorporated a property settlement agreement entered into by the parties immediately prior to the dissolution hearing. For the reasons set forth below, we reverse the judgment and remand to the trial court for further consideration consistent herewith.

Mary Emma Fleming and John West Fleming were married on February 11, 1950. They lived together as husband and wife for over twenty-eight years and had four children. During the marriage, Mr. Fleming became a successful and prominent trial lawyer in Broward County.

On February 2,1979, Mrs. Fleming filed a petition for dissolution of marriage through her attorney, J. B. Patterson, and a final hearing was set for June 30,1980. On June 27, 1980, Mr. Fleming furnished Patterson with a complex financial statement as well as an offer of settlement. This record is not clear as to why this statement was supplied at such a late date, but does indicate that this offer, and a subsequent one, were rejected by Patterson. However, when a third settlement offer which was essentially the same as the second was conveyed on the day of the hearing, Patterson advised Mrs. Fleming to accept it.

The settlement agreement was read into the record by Mr. Fleming’s attorney at the commencement of the hearing and the proceedings were terminated shortly thereafter. This oral settlement was then reduced to writing, but Mrs. Fleming refused to execute it. She subsequently retained new counsel and filed a petition to rescind or vacate the settlement agreement alleging, inter alia, undue influence, coercion, duress, fraud, and the unfairness of the agreement. Mr. Fleming, on the other hand, moved to compel settlement.

Over the objection of Mrs. Fleming’s new counsel, the court allowed Patterson to participate in the hearing held on the petition to rescind and the motion to compel, by giving an opening statement, cross-examining witnesses, and making objections. In fact, Patterson, himself, requested that the court limit the testimony at the hearing to the questions of fraud, undue influence and duress, and asked the court to exclude all testimony as to the unfairness or unreasonableness of the agreement, although this was contrary to Mrs. Fleming’s interests. At the conclusion of the hearing, the trial court denied the petition to‘ vacate the settlement and granted the motion to compel. The court specifically excluded the issue of the fairness of the agreement from its consideration, stating: “I am not making any determination as to the fairness or lack of fairness of the agreement. I think it’s a day late and a dollar short for her to raise these arguments and I have purposely excluded or sought to exclude testimony on the relative assets of the parties going into it.”

On appeal, Mrs. Fleming contends that she was urged to make a determination quickly and without thought and was, in effect, coerced by Patterson to accept the third settlement offer. She suggests that Patterson was not prepared for trial and it was this unpreparedness which motivated him to urge her acceptance of the offer. More basically, she asserts that the trial court should have considered the fairness of the parties’ settlement agreement before determining whether it should be rescinded or vacated.

The landmark case on this subject is, of course, Del Vecchio v. Del Vecchio, 143 So.2d 17, 20-21 (Fla.1962), where the court stated:

Ordinarily the burden of proof of the invalidity of a prenuptial contract is on the wife alleging it but if, on its face, the contract is unreasonable a presumption of concealment arises, the burden shifts and it is incumbent upon the husband to prove validity, (emphasis supplied).

This concept was reiterated and expanded on by this court in Baker v. Baker, 394 So.2d 465, 466-67 (Fla. 4th DCA 1981):

To modify or set aside a property settlement agreement, it is incumbent upon the party seeking to abrogate the agreement to allege and prove fraud, duress, deceit, coercion or overreaching by the other party.... Case law suggests two methods, one direct and one indirect. The direct method involves affirmative proof of fraud, misstatements, deceit, etc. The indirect method allows the party seeking to invalidate a property settlement agreement to prove that the agreement is unreasonable on its face. Thereupon, a presumption arises that the opposite party concealed his assets. This, in turn, shifts the burden of proof to the defendant party to establish the validity of the agreement. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).

(Citation omitted; footnotes omitted).

Clearly, then, in a case where an agreement is alleged to be patently unfair, as here, the first order of business is for a court to make a determination as to whether the provisions made for a wife on the face of an agreement are, in the language of Del Vecchio, “disproportionate to the means of the husband.” 143 So.2d at 20. If the agreement is found to be unreasonable on its face, the presumption that the husband concealed assets would arise and this, in turn, would shift the burden of proof to him to establish the validity of the agreement. Since, by the trial court’s own admission, no determination as to the fairness of the agreement was made herein, we reverse and remand for consideration of this issue.

While our above-outlined conclusions render consideration of the remaining issues raised by Mrs. Fleming unnecessary, we feel compelled to note that there is some merit to her contention that her prior attorney should not have been allowed to participate in the hearing on the petition to vacate or rescind the settlement. It is clear that Patterson’s interests were adverse to those of Mrs. Fleming since she, in essence, was alleging that her prior attorney had participated in the alleged coercion which resulted in her oral acceptance of the agreement.

REVERSED and REMANDED.

ANSTEAD, J., concurs.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially:

I concur specially to note that the former wife’s contentions regarding duress were directed primarily at her own lawyer rather than at her former husband or opposing counsel. Despite this, the trial court erred in failing to consider the alleged facial unfairness of the settlement agreement and in allowing Mr. Patterson to participate adversely to his former client’s interest. A further hearing is, therefore, necessary.

      . Although Del Vecchio deals with antenuptial agreements, the standards of fairness set out therein are applicable to postnuptial property settlement agreements as well. See Posner v. Posner, 257 So.2d 530 (Fla.1972); Posner v. Posner, 233 So.2d 381 (Fla.1970); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974).


author: PER CURIAM. MOORE, Judge,

text:
    Betty Sue COBB, Appellant/Cross-Appellee, v. William M. COBB, Appellee/Cross-Appellant.
    No. 79-437.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Rehearing Denied Feb. 5, 1982.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant/cross-appellee.
    Ronald Sales of the Law Offices of Ronald Sales, Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.

MOORE, J., concurs in part and dissents in part with opinion.

MOORE, Judge,

concurring in part and dissenting in part:

The marriage of the parties to this appeal was dissolved in 1974. The mother now appeals a post-decretal order transferring custody of their two minor sons to the father and denying her request for increased child support. I find that the record does not contain sufficient evidence to warrant modification of the child custody award, and would therefore reverse that portion of the order.

Pursuant to a settlement agreement which is incorporated into the final judgment of dissolution, the mother gained custody of the parties’ three children, two boys and a girl. At the time of the dissolution, the boys were six and four years old and the daughter was approximately one and one-half years old. The agreement provided for child support of $125.00 per month per child along with limited amounts for educational and medical expenses. The mother also received the marital home and alimony of $325.00 per month. She assumed the existing mortgage on the marital home.

In 1978, the mother filed a petition for modification seeking increased child support. She alleged a substantial change in circumstances due to the father’s increased income and the children’s increased expenses. The father counter-petitioned for modification, seeking custody of the two boys. He admitted that the mother was a fit parent, but alleged a substantial change in circumstances had resulted from the boys’ maturing and developing interests in outdoor and sports activities. Consequently, the father alleged that he was more capable of providing parental guidance for the two boys.

After hearing, the trial judge concluded that a substantial change in circumstances had occurred and that the best interests of the two boys warranted a transfer of custody. After oral argument before this Court, we relinquished jurisdiction to the trial court for entry of an order reciting the court’s findings of fact upon which its conclusion of a substantial change in circumstances was based. In compliance with our order, the trial court relied upon the testimony of the father and a former neighbor of the parties in concluding that the two sons had matured to the point that they needed a father’s image and a father’s discipline. The court further concluded that such necessary factors in a child’s development were not available in the mother’s home which had “degenerated from a wholesome environment to a substantially less than desirable environment in that the wife had neglected the children with excessive parties, male companionship, and excessive drinking to the point that she is setting a bad example for the children for whom she had previously made a very good home.”

After reviewing the record I believe that it does not support these findings. The father’s testimony was ambiguous at best, and the neighbor’s testimony, after clarified on cross-examination, indicated a wholesome atmosphere in the mother’s home.

A trial court has less discretion in modifying the custody provisions of a final judgment of dissolution than in making the original determination. Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967); Garvey v. Garvey, 383 So.2d 1172 (Fla. 2nd DCA 1980). To justify modification, the court must find a substantial change in circumstances since the date of the original judgment, which circumstances will act to the detriment of the children if custody is not changed. Garvey, supra. In view of this limited discretion, the record simply does not warrant a change in custody.

Moreover, the modification in this case resulted in split custody, the daughter staying with the mother and the custody of the sons lodged with the father. Split custody should not be awarded except for the most compelling reasons. Arons v. Arons, 94 So.2d 849 (Fla.1957); Scalzo v. Scalzo, 395 So.2d 1272 (Fla. 4th DCA 1981). See also, McCoy v. McCoy, 400 So.2d 859 (Fla. 4th DCA 1981). In Arons, the Florida Supreme Court explained:

We are impressed with the fact too that the decree of the chancellor, which divides the children of the parties, will result in further destruction of what is left, after divorce, of this family unit. We are of the view that the children in a family should not be separated from each other and distributed about in different homes, except for the most compelling cause. For while brothers and sisters may not have a legal right to remain together, to share each other’s lives, and to grow up together, certainly they have a natural right to do so. Justice requires that society exercise its moral duty to insure that children in a family enjoy this right until such time as absolute necessity and the welfare of the children, itself, requires their separation.

Applying these criteria, I find that the trial court abused its discretion by modifying custody. Considering the father’s admission that the mother is a fit parent, the record does not contain substantial competent evidence of a change in circumstances showing that modification was essential to the welfare of the children. Furthermore, I fail to perceive any compelling circumstances that could justify split custody.

I would therefore reverse that portion of the judgment transferring custody of the parties’ two sons to the father.

Considering the financial position of the mother as presented at the hearing, together with the father’s increased income and net worth, I agree with the majority that the trial court did not abuse its discretion by denying an increase in child support. Consequently, I concur in affirming that portion of the court’s order denying the mother’s petition for increased support.


author: PER CURIAM.

text:
    John G. THILLMAN, Appellant, v. Louise K. THILLMAN, Appellee.
    No. 79-2537.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Law Offices of Ronald Sales, P. A., Palm Beach, for appellant.
    Robert L. Saylor of Saylor & Cohen, North Palm Beach, for appellee.
   PER CURIAM.

The judgment of dissolution of marriage is affirmed in all respects except as to the award of attorneys’ fees in favor of the wife/appellee. We conclude the court erred in assessing fees and said award is hereby stricken. The judgment is thus affirmed as modified. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

MODIFIED and AFFIRMED.

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    CARLON, INC., d/b/a Broward Nelson Fountain Services, Appellant, v. LINDY’S OF OMNI, INC., Appellee.
    No. 80-300.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Stewart P. Chambers of Forkey & Kirsch, P. A., Fort Lauderdale, for appellant.
    George Sampas, Miami Beach, Of Counsel, Law Offices of Shirley Woolf, Miami Beach, for appellee.
   PER CURIAM.

This is a plaintiff’s appeal from an order quashing service of process and setting aside a previously entered final judgment. The defendant/appellee is a Florida corporation. We have reviewed the record and the briefs and find no demonstration of reversible error. Section 48.081, Florida Statutes (1979), governs service of process on corporations and must be strictly complied with. We conclude that the trial court correctly quashed service of process in accordance with the dictates of Ludlum Enterprises, Inc. v. Outdoor Media, Inc., 250 So.2d 649 (Fla. 4th DCA 1971), and Dade Erection Service, Inc. v. Sims Crane Service, Inc., 379 So.2d 423 (Fla. 2d DCA 1980). The order quashing service of process and setting aside the final judgment is therefore affirmed.

AFFIRMED.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


text:
    Lewis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1304.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Rehearing Denied Jan. 27, 1982.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his manslaughter conviction after a trial on the charge of second degree murder. The defendant became involved in an altercation with the victim in a rooming house where both resided. The victim, who was intoxicated, was being loud and abusive toward the defendant and his wife. The controversy escalated and eventually ended in the defendant’s stabbing the victim who died from the single stab wound. The police arrived and the defendant surrendered peacefully and made certain admissions. >

There were numerous witnesses to the event, all of whom testified at the trial at which defendant asserted his actions were the result of self-defense. There was a definite conflict in the evidence as to the facts of the controversy and the necessity for defendant’s use of the knife. The jury was instructed on self-defense but obviously rejected the theory finding defendant guilty of manslaughter.

The single point raised on appeal is that the court erroneously restricted defendant’s cross-examination of one of the State’s witnesses. The witness in question was an investigating police officer who was called by the State primarily to identify the knife and certain other exhibits and to testify regarding chain of custody for admission of these items into evidence. On cross-examination, defense counsel asked, “When you got to the scene, did you ask any questions or did anybody make any answers?” The State objected to this question as being beyond the scope of direct examination and the court sustained the objection. Appellant contends that the court’s ruling unduly restricted cross-examination, citing Coco v. State, 62 So.2d 892 (Fla.1953); Frost v. State, 104 So.2d 77 (Fla.2d DCA 1958), and other similar cases. The State urges that the scope of cross-examination and control thereof is within the discretion of the court and that no abuse has been demonstrated. See Maggard v. State, 399 So.2d 973 (Fla.1981). We need not decide this issue.

At a later point in the trial, the State recalled the same investigating police officer and asked him almost exactly the same question which had been put to him on cross. Defense counsel objected to the officer’s testifying about the statements made by defendant on the ground that Miranda warnings had not been given. The trial court sustained this objection and the police officer was not allowed to testify to statements made by the defendant either before or after he was taken into custody. The exclusion of this evidence was at the request of defendant. Defendant is thus in the inconsistent position of having successfully objected to precisely the evidence which he now contends was erroneously and prejudicially excluded. We therefore conclude reversible error has not been demonstrated, and the judgment below is affirmed.

AFFIRMED.

HERSEY, J., and OWEN, WILLIAM, C., Jr., Associate Judge (Retired), concur.

      . We do not imply that the exclusion of defendant’s statement was necessarily proper on the basis of the absence of Miranda warnings.


author: BARKDULL, Judge.

text:
    Roderick MARSON, as Administrator of the Estate of John Douglas Marson, the deceased minor, Appellant, v. DADELAND RENT-A-CAR, INC., Lumbermens Mutual Casualty Co., Hunter Associates, Inc., d/b/a Snapper Village Early Learning Center, Donna Heinzmann Gulla and Northeastern Fire Ins. Co., Appellees.
    No. 80-1648.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rentz & Haggard, Daniel & Hicks and Sam Daniels, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and W. Sam Holland, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   BARKDULL, Judge.

A final judgment was entered in favor of the appellant, plaintiff in the trial court, in a wrongful death action. The trial court thereupon entered an order requiring that a new trial be granted unless remittitur was accepted by the appellant. The appellant appeals from that order; the appellees, defendants in the trial court, cross-appeal.

While walking home from school, the appellant’s minor son, John Douglas Marson (Doug), was struck and killed by a van driven by the appellee, Donna Güila. The van was owned by the appellee, Dadeland Rent-A-Car, and leased by it to the appel-lee, Snapper Village Early Learning Center. The appellant, individually and on behalf of Doug’s estate, commenced a wrongful death action against the appellees, asserting that Gulla negligently operated the van and that Snapper Village had negligently hired and supervised Gulla. It was alleged that both corporate appellees were responsible for Gulla’s acts via respondeat superior.

Prior to trial, the appellees moved to limit testimony that Gulla did not have a chauffeur’s license. Such motion was denied and repeated reference was made at trial that Gulla did not have a chauffeur’s license. After due consideration, at charge conference the court decided that such evidence was inadmissible. The court instructed the jury that Gulla’s possession of an operator’s license as opposed to a chauffeur’s license was not evidence of negligence.

The jury returned a verdict on special interrogatories, finding that negligence on the part of the appellees was the sole legal cause of Doug’s death. (The jury had found that there was no negligence on the part of Doug which contributed to his death.) The jury awarded damages in the following amounts: Total damages of Estate of John Douglas Marson, $17,676.00; total damages of survivor, Roderick Mar-son, $400,000.00; total damages of survivor, Jeanne Marson, $600,000.00. A final judgment was entered in accordance with the jury’s verdict. The defendants moved for a judgment notwithstanding the verdict, new trial, and/or remittitur. The trial court entered an order requiring the appellant to submit to a remittitur or a new trial would be entered. From that order, the appellant has appealed to this court. The appellees cross-appeal, asserting that the court erred in not granting the motion for remittitur and/or new trial on other grounds.

We find the order of remittitur is erroneous and order a new trial on all issues. The trial court found that it erroneously permitted evidence to be submitted to the jury and that this infected both the issue of liability and the amount of damages. Under the circumstances of this case, where there were issues as to negligence of the defendant-driver and others as well as a charge of comparative negligence on the part of the deceased, in fairness to all parties the matter should be re-tried on all issues. Skog v. Chrysler Corporation, 135 So.2d 25 (Fla.3d DCA 1961); Compare, North Dade Imported Motors, Inc. v. Brundage Motors, Inc., 221 So.2d 170 (Fla. 1st DCA 1969); Florida Power Corporation v. Smith, 202 So.2d 872 (Fla. 2d DCA 1967); Bell v. Tarvin, 163 So.2d 300 (Fla. 1st DCA 1964); Cobb v. Brew, 155 So.2d 814 (Fla. 1st DCA 1963); Warner v. Goding, 91 Fla. 260, 107 So. 406 (1926).

The grounds stated by the trial court in support of its order of remittitur and/or new trial clearly relate to the issue of liability only and not to both the issues of liability and damages, as stated in the order. As a result thereof, it was error for the trial judge to order a remittitur because a remittitur of part of the amount recovered cannot cure a verdict which is contrary to law or not sustained by the evidence as to any issue other than the measure of damages. See: Kaywood v. Webb & Knaff, Inc., 286 App.Div. 994, 144 N.Y.S.2d 447 (1955); 66 C.J.S. New Trial § 209 e., page 525.

The inadmissible testimony referred to in the order appealed, taken as a whole, has so contaminated this trial to the extent that we cannot permit this jury verdict to stand.

Therefore, the order appealed is reversed as to the remittitur and affirmed as to the new trial, and the cause is remanded to the trial court with directions to grant a new trial on all issues.

Affirmed in part; reversed in part, and remanded with directions.

      . §§ 768.20, 768.21, Florida Statutes (1977).

      .
      “This cause was considered on three (3) motions filed by the defendants herein, to wit: Motion for Judgment Notwithstanding the Verdict, Motion for New Trial, and Motion for Entry of a Remittitur.
      1. The Motion for Judgment Notwithstanding the Verdict is DENIED.
      2. On The Motion for New Trial, the following is found:
      (a) Improper evidence was submitted to the jury in the following form;
      (1) That the driver of the vehicle, Donna Gulla, did not possess a chauffeur’s license, the plaintiffs having failed to establish any causal relationship between the accident and the lack of a chauffeur license.
      (b) Opinion evidence tending to reconstruct the accident given by a forensic pathologist who admittedly was not an expert in the field of accident reconstruction.
      (c)Such evidence was so prejudicial as to deny the defendants a fair trial, especially on the issue of comparative negligence, and is reflected in the award of damages.
      3.The Motion for Entry of a Remittitur is GRANTED and it is suggested that the damages awarded herein be reduced and entered as follows:
      Damages to Estate of John Douglas Marson $17,676.00
      Damages to Survivor, Roderick Marson 200,000.00
      Damages to Survivor, Jeanne Marson 300,000.00
      TOTAL DAMAGES $517,676.00
      Unless the plaintiffs file a remittitur in accordance with the above within the time allowed by the rules, the Motion for New Trial shall stand as GRANTED.”

      .... (emphases supplied).

      . Compare, Friddle v. Seaboard Coast Line Railroad Company, 306 So.2d 97 (Fla.1974); Seaboard Coast Line Railroad Company v. Friddle, 290 So.2d 85 (Fla. 4th DCA 1974), where the erroneously admitted evidence related both to liability and the amount of damages.


author: WATSON, Justice.

text:
    Roger D. FURR v. The MAYOR AND CITY COUNCIL OF BAKER.
    No. 81-C-0718.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

    Robert W. Stratton, of Conway & Strat-ton, Baker, for plaintiff-applicant.
    William C. Bradley of Bradley & Wall, Ltd., Baker, for defendant-respondent.

       Dixon, C. J., and Lemmon, J., would grant a rehearing.

   WATSON, Justice.

This is a zoning dispute. The issue is whether plaintiff is entitled to operate a recording studio in a “P Planned Commercial District” under the zoning ordinance of the City of Baker.

“P Planned Commercial District” is used as the zoning designation for an undeveloped tract of land in the path of projected residential growth. Because of the need for properly planned shopping centers in those areas, the Baker City Council must approve all proposed projects. The uses permitted are offices, retail stores, service stations, small repair shops, banks, commercial schools, theaters, outdoor theaters, commercial greenhouses and nurseries, parking lots, hotels and motels. Prohibited in such a district are dance halls and all other uses not specifically permitted.

The city attorney of Baker advised the planning and zoning commission that a recording studio should be permitted as an establishment for retail sales. On the basis of this opinion, the commission recommended to the city council that a permit for a recording studio be granted. After a hearing, the city council overruled the planning commission. Plaintiff, Roger D. Furr, filed this suit for judicial review.

The trial court concluded that denial of the permit was not an abuse of discretion on the part of the Baker City Council. The Court of Appeal affirmed. Furr v. The Mayor and City Council of Baker, 394 So.2d 654 (La.App. 1 Cir. 1981). A writ was granted to review the judgment, 399 So.2d 598 (La.,1981).

Zoning ordinances, like other legislative acts, are presumed to be valid. Southside Civic Ass’n v. Guaranty Sav. Assur., 339 So.2d 323 (La.,1976). The burden of proof was on plaintiff Furr to show that the zoning ordinance is unconstitutional or was applied to him in an arbitrary and discriminatory manner.

The Baker City Council reserved the right to approve any project in a “P Planned Commercial District”. If this provision were interpreted to give the council unfettered authority, the ordinance would be unconstitutional. However, it can be interpreted to meet constitutional requirements. The Baker City Council has the authority to review an application for a “P Planned Commercial District” project only to determine if the proposed project is of a type permitted.

Orderly development of a community is a legitimate objective of zoning. A zoning provision which limits an area to particular, uses represents a valid exercise of the police power. Some uses are incompatible with others. A small municipality suitable for continuing residential development can exclude all businesses except those needed to serve its residents. Duffcon Concrete Products v. Borough of Cress-kill, 64 A.2d 347, 1 N.J. 509 (1949). The Baker City Council determined that limited commercial uses would be allowed where residential growth was projected. Those enumerated are generally of a type which can coexist with homes. It can be argued that a recording studio intrudes no more on the peace of a residential neighborhood than other retail establishments. However, during the city council hearing, it was stated that a recording studio could be open twenty-four hours a day.

The remarks at the hearing indicate that the city council’s dilemma was whether the proposed studio should be classified as a retail sales outlet or a light industrial project. A recording studio is not generally thought of as an establishment for the sale of goods and products. The zoning commission and the city council differed as to the correct classification. However, the council’s determination that a recording studio is not an establishment for retail sales is not an unreasonable one. Since the municipal authority exercised its discretion in a reasonable manner, there is no basis for this court to substitute its judgment in the matter. State v. McDonald, 168 La. 172, 121 So. 613 (1929), cert. denied, 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612. Plaintiff failed to sustain the burden of showing that the city council acted arbitrarily in denying him a permit for a recording studio.

For the foregoing reasons, the judgments of the trial and appellate courts are affirmed.

AFFIRMED.