author: OTT, Judge.

text:
    Lovise C. WILKINSON, Appellant, v. Marcus A. WILKINSON, III, Appellee.
    No. 79-2250.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Rehearing Denied Sept. 23, 1981.

      Lee S. Damsker of Gordon & Maney, P.A., Tampa, for appellant.
    Tom Whitaker, Tampa, for appellee.
   OTT, Judge.

In 1979 the court below entered an order respecting the division of the proceeds from the sale of the parties’ marital home, which the wife and children had occupied pursuant to the stipulated judgment entered in this dissolution proceeding in 1966. We reverse the order because it is contrary to the stipulation.

The essential difference between the stipulation and the order is that in the order the husband is given credit for taxes, insurance and mortgage payments which he made during the years his children occupied the residence. The stipulation, however, required him to make those payments, along with nominal sums as permanent alimony and child support. Further, express provision was made for an equal division of the net proceeds (sales price less mortgage payoff) should the property be sold, or payment by the husband to wife of half the net equity (appraised fair market value less mortgage) should he elect to keep the property. Under those circumstances, the rules which govern the reimbursement of outlays by a tenant in common, in the absence of agreement, are not applicable here. The clear intent of the stipulation was to obligate the husband to provide a home for his children, and to permit wife to live there so long as they required her care. Any notion that he would some day be reimbursed for doing so was effectively negated by the provisions of the stipulation.

The order also gives the husband credit for certain repairs he defrayed over the years. The stipulation is silent as to repairs, and we think the order does substantial justice in that regard.

Both here and in the trial court the parties argue at great length about the effect of a comment made by a judge following a hearing in 1977, shortly after the last of the parties’ children had moved from the house and thus terminated the wife’s right to sole possession of the premises. Before leaving the bench after that hearing, the judge observed that in his opinion the husband should receive credit for half the amount by which the principal of the mortgage had been reduced.

Had an order been entered to that effect, it would have been subject to the same fate as the one at bench. The fact of the matter, however, is that no such order was ever prepared, signed, or filed. Not long thereafter that judge retired, and nothing more was done in the case until the proceedings that culminated in the present order. A different judge was then assigned to hear the case, and his discretion was in no way circumscribed by the reasoning of his predecessor. The comments in 1977 were simply that, and they were totally incompetent as an actual order or judgment. Matthews v. Stein, 362 So.2d 376 (Fla. 2d DCA 1978).

The order is REVERSED with instructions to the trial court to enter an order in conformity with the 1966 stipulation of the parties, viz., husband must pay to wife one-half the amount by which the fair market value of the home exceeded the principal balance of the mortgage on the date that wife’s right to sole possession terminated permanently. Against that obligation, the husband shall have credit for only two items: (1) half the sum by which the amount he paid for repairs exceeds the amount wife paid for repairs, and (2) the reasonable rental value of the premises for the period, if any, wife continued in possession after her right to do so had terminated.

BOARDMAN, A. C. J., and GRIMES, J., concur.

      . See, e. g., Spikes v. Spikes, 396 So.2d 1192 (Fla. 2d DCA 1981) and Smith v. Smith, 390 So.2d 1223 (Fla. 4th DCA 1980).

      . At a hearing in 1977 husband asserted that his son, who did not become eighteen until April 13, 1977, had left the home in November of 1976. The trial court is better situated than we to determine from whatever evidence is presented whether wife was still providing a home after November, 1976, for the son, whose absence may have been thought to be only temporary.


source: Caselaw Access Project

author: LETTS, Chief Judge. ANSTEAD, Judge,

license: Public Domain

text:
    Benjamin COLE and Miriam Cole, his wife, et al., Appellants, v. ANGORA ENTERPRISES, INC., etc., et al., Appellees.
    Nos. 79-2269, 80-939.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Rehearings Denied Oct. 8, 1981.

      Mark B. Schorr and Jeffrey Streitfeld of Becker, Poliakoff & Streitfeld, P.A., Port Lauderdale, for appellants.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee Kosow.
    Robert S. Levy of Law Offices of Robert S. Levy, P.A., West Palm Beach, for appel-lees Angora, Lakeside Village, Viking Co-Dev, and American Capital Corp.
   LETTS, Chief Judge.

Before us is yet another appeal emanating from a condominium dispute over a long term recreational lease and a trial judge’s order permitting disbursement of moneys held in the registry of the court pursuant to Section 718.401(4) and 718.401(8), Florida Statutes (1977). As a result the trial judge also awarded attorneys fees to the lessor under the lease. We reverse in part and in so doing consider only those facts and legal issues which are dispositive of this particular litigation.

We are, of course, familiar with the Supreme Court’s decision in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979) holding this very statute unconstitutional. However, Pomponio is not dispositive of the case now before us by reason of the Supreme Court’s own concluding Pomponio language holding that the statute may be valid if the lessor’s express consent to the statute’s incorporation into the terms of the contract has been obtained.

We must, therefore, first answer the question: Has the lessor expressly consented to the statute’s incorporation into the terms of the contract in the case now before us? We believe the answer is “yes.” In support of our conclusion we refer to the Supreme Court’s ruling in Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978) where the court found that it need not reach the constitutional question because the developer “by specific language contained in its Declaration of Condominium, expressly agreed to be bound by all future amendments to the Condominium Act, including, but not limited to Section 711.63(4).” Id. at 132. We are of the opinion that the language quoted from the declaration in Century Village is virtually identical to the language employed in the declaration now before us and they are set forth below for comparison:

CENTURY VILLAGE DECLARATION
... [the developer] hereby states and declares that said realty, ... together with improvements thereon, is submitted to Condominium ownership, pursuant to the Condominium Act of the State of Florida, F.S. 711 Et Seq. (hereinafter referred to as the “Condominium Act”), and the provisions of said Act are hereby incorporated by reference and included herein thereby....
The “Condominium Act” referred to above is defined in Section 1(G) as follows:
Condominium Act means and refers to the condominium act of the State of Florida (Florida Statutes 711, et seq.)
as the same may be amended from time to time. 361 So.2d 128, 133. (emphasis in original).
DECLARATION NOW BEFORE US
ANGORA ENTERPRISES, INC. hereby states and declares that said realty, together with improvements thereon, is submitted to Condominium ownership, pursuant to the Condominium Act of the State of Florida, F.S. 711 et seq. (hereinafter referred to as the “Condominium Act”), and the provisions of said Act are hereby incorporated by reference and included herein thereby ....
(Subsection G of Article I defines condominium act as follows:)
Condominium Act, means and refers to the Condominium Act of the State of Florida (F.S. 711 et seq.)
as the same may be amended from time to time. (R.S. 2-3) (Emphasis added).

Notwithstanding the above, the lessor argues that such language comes from the “submission statement” portion of the subject declaration and that in counsel’s words “The submitted property . . . does not include (and no argument is made that it includes) the property which forms the subject matter of the Long-Term Lease.” From this counsel for the lessor in an excellent brief concludes:

Since the leased property is not part of the realty submitted to condominium pursuant to the Condominium Act, as that term is defined in the Declaration, the demised property and the lease itself are unaffected by the submission .... The submission statement only relates to condominium property, not leased property or any other parcel.

We are impressed by this argument, but cannot distinguish it from the Supreme Court’s holding in Century Village. The lessor suggests that this argument was never raised in Century Village and the point therefore not considered. However, whether specifically raised or not, the point would have to be inherent in the Century Village holding. Moreover we feel that fundamental fairness should dictate otherwise. The subject submission statement makes at least three patent references to the long term lease which is annexed thereto as an exhibit. As such, it was obviously intended to be an integral part of the whole. One cannot issue forth with language in the submission statement such as: “which long-term lease is attached to this Declaration and made a part hereof” and then argue that that same lease is not a part thereof pursuant to the condominium act.

We thus decide that Section 718.401(4) is applicable and enforceable under the facts of the instant case. That being so it is also inescapable that Section 718.401(8) is also applicable so that the enforceability of the rent escalation clause is void for reasons of public policy. In so holding we recede from any statement to the contrary set forth in our prior decision in Palm Aire Country Club Association No. 2, Inc. v. F. P. A. Corporation, 357 So.2d 249 (Fla. 4th DCA 1978) even though the instant lease, as did the one in Palm Aire, provides for its own exclusive method of amendment.

Concluding on this question, we would be less than candid not to concede that it appears unlikely that it could ever have been the specific intention of the developer-lessor to incorporate future Condominium Act amendments which would, for instance, preclude the collection of escalation clause rents. It is perfectly obvious that the “from time to time” language was intended to provide a safety valve and fall back position for the developer to insure the continuing integrity of the condominium from the vagaries of the legislature and the appellate courts. However, the developer-lessor should not expect to be able to invoke the “from time to time” language when it suits its purpose to do so and reject it when not to its taste and advantage. The developer-lessor has quite simply been hoisted on its own petard by these particular amendments.

Having decided the applicability of the statute, we turn now to a new twist which must be a credit to the ingenuity of this particular lessor. As we have seen, Section 718.401(4) also provides for disbursement of funds “shown to be necessary for the payment of . . . mortgage payments.” Pursuant to this provision the instant lessor, while in the middle of this law suit, has assigned his long-term lease to a third party who, for no money down, has given the lessor back a purchase money mortgage and note at 6% with no personal liability to the maker. Needless to report it is now claimed that the payments to be made on the purchase money mortgage qualify as “mortgage payments” under the statute which may be withdrawn from the registry of the court. To cries of “foul” from the unit owners, the lessor points to our own language in Palm Aire, supra, and parodies Gertrude Stein to the effect that “a mortgage is a mortgage is a mortgage.”

Regardless of the bona fides of the mortgage, the record reflects that the assignee accepted the assignment with notice of the dispute over the rents. This being so, it is not important whether the purchase money mortgage and note were executed at arms length, it being our conclusion that an assignee with notice accedes to no greater rights than his assignor. Florida East Coast Ry. Co. v. Eno, 128 So. 622 (Fla.1930), Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22 (Fla. 2d DCA 1979). As a consequence, since the assignor was without power to withdraw the funds (other than for purposes conceded by all parties, such as payment of the institutional mortgage) the assignee must be likewise impotent to do so. Our conclusion is not a finding that the purchase money mortgagor need not make his payments; it is, however, a holding that he cannot withdraw the funds to do so from the registry of the court.

Passing next to the question of attorneys fees, we note the provisions of Section 718.125, Florida Statutes (Supp. 1978) which provides:

If a contract or lease between a condominium unit owner or association and a developer contain a provision allowing attorneys fees to the developer, should any litigation arise under the provisions of the contract or lease, the court shall also allow reasonable attorney’s fees to the unit owner or association when the unit owner or association prevails in any action by or against the unit owner or association with respect to the contract or lease.

Notwithstanding the foregoing quoted language the trial court struck the unit owners request for same. Needless to say the trial court was only being consistent in so doing, but in the light of our holding that the developer-lessor expressly consented to be bound by amendments to the law, we see no reason why an attorneys fee cannot here be awarded to the unit owners (and/or association) because the lease in question provided for attorneys fees upon the occasion of litigation.

This being so we see no necessity to examine any other of the theories advanced for the award of attorneys fees and on this issue we therefore remand this cause for consideration of reasonable attorneys fees. In so doing we make no determination as to the proportionate share to be paid by the original lessor-developer and the assignee who now stands in the original lessor’s shoes. The apportionment of said fees shall be made at the discretion of the trial court as it may deem appropriate.

Finally, we consider whether a condominium association and its unit owners may state a cause of action for breach of fiduciary duty and self dealing when a recreation lease is executed. The answer is yes, of course they can, so long as they come within the dictates clearly set forth in Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977). However, that remedy is simply not available here because of the posture of this appeal. The original complaint in this dispute, up through the third amendment thereto, has already been appealed to this court and a decision rendered in Cole v. Angora Enterprises, Inc., 370 So.2d 1227 (Fla. 4th DCA 1979). A reading of that third amended complaint reveals no attempt whatever to plead breach of fiduciary duty or self-dealing .arising from the execution of the long term lease. This being so, the law is clear on this subject. Upon remand after a successful appeal the litigant may not invoke new causes of action and thus litigate his case piecemeal, otherwise “one party would thus be placed in position to prevail over the other by the process of attrition.” United States Fidelity & Guaranty Co. v. Sellers, 197 So.2d 832, 833 (Fla. 1st DCA 1967). See also Palm Beach Estates v. Croker, 143 So. 792 (Fla.1932).

We are of the belief that this decision will have wide repercussions affecting condominium living and that our conclusions here should be certified to the Supreme Court as questions of great public importance. We therefore certify this entire decision so that our Supreme Court may pass upon the four principal issues here decided. These issues involve: (1) Whether the lessor expressly consented to the incorporation of Florida Statute 718.401(4) into the terms of the contract. (2) Whether the rent escalation clause is rendered unenforceable. (3) Whether the assignment and sale of the long term lease in exchange for a purchase money mortgage permits of the disbursement of funds from the registry of the court to pay said purchase money mortgage. And (4) whether the condominium association and its unit owners may at this stage state a cause of action under the facts of this case for breach of fiduciary duty and self dealing.

REVERSED IN PART AND REMANDED.

STONE, BARRY J., Associate Judge, concurs.

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

ANSTEAD, Judge,

concurring in part and dissenting in part:

I disagree only with the holding of the majority with reference to the appellants’ right to attempt to state a cause of action “for breach of fiduciary duty and self dealing” pursuant to Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977).

      . See also the very recent decision in Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla. 3d DCA 1981).

      . Section 711.63(4) was, of course, the precursor to Section 718.401(4).


author: COBB, Judge. DAUKSCH, Chief Judge, COBB, Judge. DAUKSCH, Chief Judge,

text:
    Charles Henry MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-950.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Sept. 30, 1981.

      James B. Gibson, Public Defender and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

This is an appeal from a robbery conviction. Appellant raises two questions for our consideration. The first concerns the propriety of the court giving an Allen charge, sometimes called the “dynamite” charge. In this case, the charge was read to the jury once, and then only after the trial court had been advised by the jury that it could not reach a verdict after approximately two hours of deliberation. The standard jury instruction, as read by the trial court, has been characterized by the Florida Supreme Court as fair and unbiased. The trial judge did not make any additional comments or statements implying that the jury must reach a verdict, as was the case in Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975). Neither did this case involve a very late hour and misleading statements by the trial court as to the possibility of overnight group lodging for both male and female jurors, the situation that occurred in Lee v. State, 239 So.2d 136 (Fla. 1st DCA 1970). Accordingly, we find the first point raised by appellant to be without merit.

The second point raised by appellant is that the trial court erred in refusing to instruct the jury on the law of circumstantial evidence as requested, since substantial evidence to prove his identity as the robber was circumstantial. Appellant’s objection to the trial court’s refusal was timely.

The case against the appellant consisted of both direct evidence (eyewitness testimony) and circumstantial evidence. There were three eyewitnesses to the robbery: a druggist who picked someone other than appellant at a lineup, another pharmacy employee who identified appellant at trial, and a customer who could not identify appellant. Since the robber was apparently a man dressed in a woman’s clothes and wig, the hesitancy of the witnesses is understandable. The only other evidence as to the identity of the appellant is circumstantial. His girlfriend testified that on the day and approximately at the time of the robbery the appellant left with a woman’s blonde wig and carrying a white handbag, and later returned with drugs she said were quaaludes, demerol, percocets, seconals, and percodan. The pharmacy employee testified a man wearing a woman’s blonde wig and carrying a white handbag and long white sweater robbed him of “Quaalude, Demerol, Seconal, Percocet, and that’s all I recall.” A patron of the drugstore testified a man wearing a woman’s blonde wig and a long white sweater and carrying a purse was the one who robbed the store, but she could not identify the culprit.

In the case of Boyd v. State, 122 So.2d 632 (Fla. 1st DCA 1960), Judge Sturgis, writing for the majority, set forth the applicable rule in regard to the circumstantial evidence instruction, in a concise and unequivocal statement:

It is only when the prosecution relies solely on circumstantial evidence and when the nature of the circumstantial evidence is such that an inference affecting guilt is necessary to be drawn from collateral facts which have a natural or generally recognized relation to such inference that the court is compelled to instruct the jury upon the law governing circumstantial evidence in prosecutions for crime. Jackson v. State, Fla.App. 107 So.2d 247. [Emphasis added].

Id. at 634.

Subsequently, in State v. Anderson, 270 So.2d 353, 357 (Fla.1972), the Florida Supreme Court, in a unanimous opinion authored by Justice Adkins, adopted this statement of the rule verbatim. The case of Newsome v. State, 355 So.2d 483 (Fla. 2d DCA 1978), improperly revised the rule enunciated by the Florida Supreme Court, changing the word solely to substantially. The Second District was without authority to do this. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

The Newsome opinion relied on two Florida Supreme Court cases: Leavine v. State, 109 Fla. 447, 147 So. 897 (1933); and McCall v. State, 116 Fla. 179, 156 So. 325 (1934). The latter case does not support Newsome in this respect, because the only evidence of guilt in McCall was circumstantial. Leavine, on the other hand, does lend support to the Newsome rationale because in that case the evidence was “almost entirely circumstantial.” Leavine, 147 So. at 905. Both Leavine and McCall, however, pre-date Anderson and, to the extent of any conflict, are overruled by the more recent case.

In the instant case, as clearly indicated by the facts set forth above, the state did not rely solely upon circumstantial evidence: it presented an eyewitness identification. Since the trial court was not compelled to give the circumstantial evidence instruction, the court’s refusal to do so was not error in accordance with the most recent holding on this point by the Florida Supreme Court in Anderson. Accordingly, the judgment of conviction is affirmed.

For the reason that the Florida Supreme Court in Anderson did not expressly recede from the rule set forth in the earlier cases of Leavine and McCall, and since our decision herein is in direct conflict with Newsome v. State, we certify that the question as to when the circumstantial evidence instruction must be given is one of great public importance and that our decision on this point is in direct conflict with another district court of appeal pursuant to Florida Rules of Appellate Procedure 9.030(a)(2(A))(v) and (vi).

AFFIRMED.

FRANK D. UPCHURCH, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion the trial court committed error by refusing to give the circumstantial evidence instruction and the appellant is entitled to a new trial on that account.

The eyewitness testimony was so weak as to be nearly untrustworthy, as can be seen from the majority opinion. This is not to say that weak evidence was not legally sufficient to convict but that it may have been factually insufficient if the jury had been given the circumstantial evidence instruction and understood its meaning. Parenthetically I would note that had I been a juror, knowing the circumstantial evidence instruction, I would have also voted to convict. But that is not really the question. The question is when should the trial judge be required to give the instruction. I think it should be required to be given when the evidence consists wholly or substantially of circumstantial evidence. Here it is the circumstantial evidence that is by far the most convincing. If that girlfriend had not testified the jury might well have considered the eyewitness testimony inconclusive to prove guilt beyond a reasonable doubt but when she talked about the wig. and the drugs the case was fairly concluded.

It is my hope our supreme court will reconsider the Anderson decision and give a more broad interpretation to the rule of when a circumstantial evidence instruction is required. It seems to me the Boyd test is too strict and takes a benefit from accused persons to which they should be entitled. In any event, the confusing instruction should be rewritten with greater clarity in order to make it meaningful to lay jurors.

ON MOTION FOR REHEARING

COBB, Judge.

The standard jury instruction on circumstantial evidence has been deleted. In the Matter of Florida Standard Jury Instructions in Criminal Cases, Nos. 56,734 and 58,799 (Fla.Apr. 16, 1981) [1981 FLW 305]. In light of the deletion of this instruction, the issue involved in this case is no longer one of great public importance. Accordingly, we grant the motion for rehearing and delete the last paragraph of our opinion.

GRANTED

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

DAUKSCH, C. J., concurs specially.

DAUKSCH, Chief Judge,

concurring specially:

And I withdraw my dissent.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896):
      It is your duty to agree on a verdict if you can do so without violating conscientiously held convictions that are based on the evidence or lack of evidence. No juror, from mere pride or opinion hastily formed or expressed, should refuse to agree. Yet, no jur- or, simply for the purpose of terminating the case, should acquiesce in a conclusion that is contrary to his or her own conscientiously held view of the evidence. You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor and, if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and this case may be disposed of.
      You may return to the jury room for further deliberations.
      Fla.Std.Jury Instr. (Crim.) 2.21.


author: ORFINGER, Judge.

text:
    Charles Henry MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-951.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 1, 1981.

      James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appealing from a conviction by a jury of robbery with a firearm, appellant contends that the trial court erred in denying his motion to suppress the identification testimony of one of the witnesses and in denying the motion to suppress his confession. We affirm.

No error is demonstrated in the denial of the motion to suppress the identification testimony by the manager and clerk of the restaurant where the robbery took place. The clerk phoned a description of the culprits and the escape vehicle to the police. The auto was stopped about thirty minutes later after a chase in which shots were fired at the police officers. The restaurant manager was brought to the place where the car had been stopped where he identified the two occupants as the robbers.

Appellant says that bringing the manager of the restaurant to the place where the car was stopped and where he identified two suspects who were then in police custody was so inherently suggestive as to taint the identification testimony and render it inadmissible. Appellant misinterprets the rule. One-man “show-up” identifications are not in themselves impermissi-bly suggestive such that a tainted in-court identification may be presumed; rather, the essential question is whether the prior identification was so suggestive that the witness’ own recollection is questionable, thereby creating a substantial likelihood of mis-identification.

Considering the prior description given the police, the ample opportunity to observe the culprits, the short time which elapsed, the degree of attention and the firm testimony of the witness, the totality of the circumstances makes the identification appear reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); U. S. v. Osborne, 630 F.2d 374 (5th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981).

Appellant says that his confession to the police officer should be suppressed because the officer knew that appellant was represented by an attorney under a separate and distinct charge, that in the other case his attorney had stated that appellant would make no statement, so the officer should not have questioned him about the instant crime when his attorney was not present. Appellant urges us to adopt the New York rule that once a defendant invokes the right to counsel, he may not be questioned even as to matters unrelated to the charge for which he is represented; and that this “indelible” right to counsel requires that no legal effect be given to any waiver of rights made outside the presence of counsel once the right of counsel has been invoked.

Florida has rejected New York’s “indelible” right by specifically holding that the decision to have a lawyer is not irrevocable and that a statement voluntarily given to law enforcement officers after a defendant has been fully informed of his rights, waives the protection afforded by Miranda. Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979). A request for counsel for an unrelated charge does not require that interrogation cease if adequate Miranda warnings have been given. Stone v. State, 378 So.2d 765, 769 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). In the light of these cases, we hold that the knowledge of a police officer that a defendant is represented by counsel in a completely unrelated charge does not preclude the questioning of the defendant about the charge at hand where the defendant has intelligently and knowingly waived his right to counsel and has made a voluntary statement to the police. Here, defendant asked to speak to the investigator, was advised of his rights, and gave the statement in question. When the investigator attempted to also question him about the earlier incident, defendant said he would rather talk to his attorney before talking about that one, but he willingly discussed the incident involved here. Defendant’s statements about this crime were thus voluntary and made with full knowledge of his right to counsel, and were properly admitted in evidence.

The judgment of conviction is AFFIRMED.

FRANK D. UPCHURCH and COWART, JJ., concur.

      . Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972). The criteria for making this determination include:
      (1) opportunity of the witness to view the criminal at the time of the crime;
      (2) the witness’ degree of attention;
      (3) the witness’ prior description of the criminal;
      (4) the level of certainty displayed by the witness;
      (5) the length of time between the crime and the identification.
      “Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253.

      . People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (C.A.1979).

      . People v. Cunningham, 49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 (C.A.1980).

      . The right to waive counsel once requested has been limited by the U.S. Supreme Court in Edwards v. State of Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to circumstances where the accused voluntarily initiates the conversation, and to that extent the decisions of Jackson and Stone may now be limited. However, in the case before us the totality of the circumstances makes it clear that defendant did not request counsel in this case; that he was aware of his right to counsel; and that he initiated the conversation by asking to speak to the investigator whom he knew.


author: FERGUSON, Judge.

text:
    Julian L. GIBSON a/k/a Harry J. Grant and Alfred J. Gibson, Appellants, v. The STATE of Florida, Appellee.
    Nos. 78-336, 78-1012.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Rehearing Denied Oct. 7, 1981.

      Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   FERGUSON, Judge.

Pursuant to trial by jury, appellants were found guilty of robbery with a firearm and possession of a firearm while engaged in a criminal offense. They were sentenced to consecutive terms of imprisonment. By this appeal they raise three issues for review:

(1) the adjudication and sentence for robbery with a firearm and possession of a firearm while engaged in a criminal offense constitutes a double jeopardy violation;

(2) failure to instruct the jury as to the essential element of intent to commit the crime charged was fundamental error; and

(3) the prosecutor’s statements in closing argument constituted an impermissible comment on appellant’s failure to testify.

A defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only a conviction for the greater charge may stand. State v. Pinder, 375 So.2d 836 (Fla.1979); Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980). Since the two offenses for which defendants stand convicted, armed robbery under Section 812.13, Florida Statutes (1977) and possession and display of a firearm under Section 790.07, Florida Statutes (1977), involve the same criminal act as a necessary element of each offense, the defendants’ convictions and sentences for possession of a firearm may not stand. James v. State, 399 So.2d 424 (Fla. 5th DCA 1981); Lee v. State, 400 So.2d 1238 (Fla. 1st DCA 1981); Monroe v. State, 396 So.2d 241 (Fla. 3d DCA 1981). Cf. Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981) (conviction of petty larceny inconsistent with finding violation of § 790.07).

The standard jury instruction on robbery is incomplete because it does not include specific intent as an element of the crime. Bell v. State, 394 So.2d 979 (Fla.1981). In Bell, however, the requested instruction was not given. In this case the instruction was not requested. Neither was the element of specific intent to permanently deprive another person of the property in question made an issue at trial, directly or indirectly. The omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question. Williams v. State, 400 So.2d 542, (Fla. 3d DCA 1981).

After summing up the overwhelming evidence against the defendants, the prosecutor ended with the following:

Sometimes it makes you a little uncomfortable at night. But if you think, and I believe you cannot think otherwise, that they have both committed this crime, you must find both guilty and not think about the consequences, as the judge will tell you, and forget about it.
You can think you have done your duty done your obligation.
I ask you to listen carefully to see if the defense presents to you any direct evidence or comment on the evidence which show you any otherwise.
Thank you very much.

We have reviewed the comment in full context and find that it was a permissible comment pointing out the uncontradicted nature of the evidence. White v. State, 377 So.2d 1149 (Fla.1979); State v. Jones, 204 So.2d 515 (Fla.1967); Clinton v. State, 56 Fla. 57, 47 So. 389 (1908).

The convictions and sentences are affirmed as to robbery with a firearm and reversed as to possession of firearm while engaged in a felony.


author: PER CURIAM.

text:
    John POLITIS, Appellant, v. GENERAL HOTEL AND RESTAURANT SUPPLY CORPORATION, Appellee.
    No. 80-2294.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Rehearing Denied Oct. 7, 1981.
    Roderman, Berman & Trachman and Bernard Berman, Fort Lauderdale, for appellant.
    Jeffrey R. Roth, Miami, for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The award of attorney’s fees is affirmed. See, e. g., Feldman v. Feldman, 390 So.2d 1231 (Fla. 3d DCA 1980); Lee v. Gilbert, Silverstein & Heilman, P. A., 350 So.2d 1147 (Fla. 3d DCA 1977).

In this contract action, the award of prejudgment interest is also affirmed upon the finding of the trial judge that demand for a sum due and owing was made on February 2, 1976. See, e. g., Butler Plaza, Inc. v. Allen Trovillion, Inc., 389 So.2d 682 (Fla. 5th DCA 1980); Huntley v. Baya, 136 So.2d 248 (Fla. 3d DCA 1962).

Affirmed.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Leola S. SHERMAN, Appellee.
    No. 80-494.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1981.
    Rehearing Denied Oct. 21, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Raymond P. Harris, Jr., Tampa, for ap-pellee.
   DANAHY, Judge.

The state appeals an order of the trial court granting Leola Sherman’s motion to quash an information charging her with willfully leaving the scene of an accident. The trial court granted the motion apparently because it concluded that Sherman was entitled to discharge under the speedy trial rule. We reverse.

Sherman was arrested on October 29, 1979, and charged by an information in circuit court on January 5, 1980, with leaving the scene of an accident involving personal injury. The information, however, did not allege that she “willfully” left the accident scene. As a result of this omission, on February 12, 1980, Sherman contended that she was only charged with a misdemeanor and was entitled to discharge because she had not been brought to trial within ninety days of her arrest. She also moved to have the case transferred to county court for the entry of the discharge order. The trial court initially granted the motion to transfer without prejudice to the state’s refiling the information. On the same day, the state entered a nolle prosequi to the misdemeanor and filed an information charging Sherman with the felony of “willfully” leaving the scene of the accident. On March 11, 1980, the court granted Sherman’s motion to quash the second information.

Our previous decision in Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974), presented a factual situation analogous to the one at bar. In that case, Crain was charged by an information with possession of less than five grams of marijuana, a misdemeanor. After more than ninety days had elapsed from the time of his arrest, Crain moved for discharge under the speedy trial rule. The court heard argument on the motion, but before a decision was rendered, the state entered a nolle prosequi to the charge and filed a second information charging Crain with felony possession of marijuana. More than 180 days after his arrest, Crain again moved for discharge and the trial court denied the motion.

On appeal, this court first noted that the felony charge was not precluded merely because the time to bring Crain to trial on the misdemeanor charge had expired. In reaching this decision the majority reasoned as follows:

While the nolle prosequi will not operate to toll the times provided for in [Florida Rule of Criminal Procedure 3.191(a)(1)], nevertheless appellant ought to be in no better position because a misdemeanor charge was indeed filed than he would have been had one not been filed insofar as the time within which he must be brought to trial on the felony charge is concerned ....

Of course, since Crain was not brought to trial within 180 days of his arrest, this court ultimately held that he was entitled to discharge from the felony charge.

Sherman contends that Crain’s relevant language is dicta and, therefore, not controlling in the instant case. Moreover, she maintains that the above quoted statement in Crain is incorrect because in its majority opinion this court failed to consider Florida Rule of Criminal Procedure 3.191(h)(2). While we tend to agree that Crain is not controlling, the court in its majority opinion in that case clearly did consider Rule 3.191(h)(2) and we believe correctly stated the law applicable to this case.

Accordingly, the order granting Sherman’s motion to quash the second information is reversed and the case is remanded for further proceedings consistent with this opinion.

SCHEB, C. J., and HOBSON, J., concur.

      . Fla.R.Crim.P. 3.191.

      . Shortly after the trial court entered the order appealed from in this case, the Florida Supreme Court declared that only a felony is created by section 316.027 with or without the word “willfully.” Stanfill v. State, 384 So.2d 141 (Fla.1980).

      . The court clearly understood and considered Rule 3.191(h)(2) as evidenced by its footnote. See Crain v. State, 302 So.2d 433, 434 n.1 (Fla. 2d DCA 1974).

      . 3.191(h)(2) Nolle Prosequi; Effect, Florida Rules of Criminal Procedure provides as follows:
      The intent and effect of this Rule shall not be avoided by the State by entering a nolle pros-equi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

        . See note 3 supra.


author: HOBSON, Acting Chief Judge.

text:
    Michael Henry MICHAELS, Petitioner, v. Honorable Maynard SWANSON, as Circuit Judge of the Sixth Judicial Circuit, Respondent.
    No. 81-1277.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1981.

      Robert E. Jagger, Public Defender, Clear-water and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner seeks a writ of prohibition to prevent his trial on a charge of aggravated battery, arguing that he was previously placed in jeopardy for the same acts when he was convicted of manslaughter.

Petitioner was charged with the manslaughter of David Trass by striking him and causing him to fall to the ground. Although the information was subsequently amended to contain a second count charging petitioner with the aggravated battery of David Trass by striking him about the face, the trial judge permitted the state to try petitioner only on the manslaughter count. Nevertheless, the judge did grant petitioner’s request to instruct the jury on aggravated battery. The jury returned a verdict of guilty of manslaughter.

The state is now prosecuting petitioner on a separate information charging the aggravated battery of David Trass by striking him about the face. This aggravated battery information and the manslaughter information were based upon the same actions of petitioner.

Although petitioner made a motion to dismiss the aggravated battery information below, the trial judge denied the motion based upon the premise that the crime of manslaughter does not involve an intent element which is present in the crime of aggravated battery.

Following the filing of a writ of prohibition with this court, we issued an order to show cause and stayed the trial on the aggravated battery charge. Upon a study of the state’s response and the record before us, we now conclude that petitioner is entitled to a writ of prohibition.

Although there are no cases which specifically address the question of whether aggravated battery is a lesser included offense of manslaughter, this court has followed the ruling of our sister court in McCullers v. State, 206 So.2d 30 (Fla. 4th DCA 1968), by holding that aggravated assault is a lesser included offense of manslaughter. DuPree v. State, 310 So.2d 396 (Fla.2d DCA 1975). In McCullers, the court explained that culpable negligence as used in the manslaughter statute constituted reckless indifference to rights of others which is equivalent to the intentional violation of these rights. We stated in DuPree that the only element present in manslaughter by culpable negligence that is not present in the lesser included offense of aggravated assault is the death of the victim. If aggravated assault is a lesser included offense of manslaughter, we see no reason why aggravated battery would not also be a lesser included offense of manslaughter.

In the case before us, petitioner struck Trass about the head causing him to fall to the ground. As a result of petitioner’s actions, Trass died. The action which formed the basis both for the manslaughter and the aggravated battery charges was the striking of Trass by petitioner. At a trial on either charge, the evidence would necessarily include this striking. The only additional evidence required at a trial on the manslaughter charge would be showing the ultimate death of Trass. Thus, the crime of aggravated battery was included in the crime of manslaughter in this case.

Since aggravated battery constitutes a lesser included offense of manslaughter in this case, permitting the state to try petitioner on the charges of aggravated battery would be placing petitioner in jeopardy a second time for the same actions. This the state cannot do.

Thus, we grant the writ of prohibition preventing the trial court from trying petitioner on the aggravated battery charge.

PETITION GRANTED.

GRIMES and CAMPBELL, JJ., concur.


author: NESBITT, Judge.

text:
    John W. BUCKNER, M.D., Appellant, v. The LOWER FLORIDA KEYS HOSPITAL DISTRICT d/b/a Florida Keys Memorial Hospital, Jaime M. Benavides, M.D., Robert P. Kaminsky, M.D., Jose T. Sanchez, M.D., J. Lancelot Lester, Jr., M.D., Robt. L. Carraway, M.D., Thomas H. Robinson, M.D., Robert L. Kalett, M.D., Joseph J. Scarlet, M.D., and Gary L. Keach, Appellees.
    No. 79-2265.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Oct. 5, 1981.

      Edna L. Caruso, Montgomery, Lytal, Re-iter, Denney & Searcy, W. Palm Beach, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, David Paul Horan, Key West, Floyd, Pearson, Stewart, Richman, Greer & Weil and James B. Tilghman, Jr., Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The appellant, a licensed physician, brings this appeal to contest the trial court’s dismissal of his third amended complaint. Dr. Buckner attempted to allege a civil conspiracy, jointly and severally, against the Florida Keys Hospital, doing business as Florida Keys Memorial Hospital; two separate boards of trustees of the hospital; two hospital administrators; and the hospital’s medical staff, for injuries resulting from the underlying allegations of:

(1) defamation;
(2) wrongful interference with his profession by:
(a) termination of his staff privileges at the hospital; and
(b) the failure to renew his status as a member of the hospital staff for an ensuing year; and
(3) the independent tort of conspiracy.

The third amended complaint, consisting of more than 100 paragraphs en masse, without any attempt to set forth separate claims, had annexed to it and incorporated by reference, fifty-nine pages of exhibits. The trial court dismissed the final (fourth) pleading effort on the merits as well as for failure to comply with previous orders of court with respect to proper pleading. Having sifted through the melange by which the plaintiff pontifieally lauded himself, while castigating the medical community in which he practiced with vitriolic and intemperate remarks, we commend the patience, fortitude, and stamina of the trial judge who labored in this cause and are of the unqualified view that he reached the correct conclusion.

DISMISSAL OF THE COMPLAINT FOR VIOLATION OF ORDERS OF COURT

Although the desirable end of pleading is to create an issue and thus dispose of a cause of action on the merits, when the privilege to amend has been abused in violation of orders of court the ultimate sanction of dismissal is sometimes appropriate. Pinakatt v. Mercy Hospital, Inc., 394 So.2d 441 (Fla.3d DCA 1981). This pleading effort was prolix, duplicitous, scandalous, and impertinent. Despite the apparent admonitions of the trial court, each successive attempt to allege a cause of action became more bloated and vitriolic. Such flagrant abuse of pleading not only demonstrates a disregard for the adversary system but a lack of professionalism and sense of responsibility as a member of the Florida Bar.

THE MERITS OF THE COMPLAINT

Despite the temptation to affirm the trial court on the basis of Dr. Buckner’s abuse of the right to amend, we nonetheless address the merits of the third amended complaint. Notwithstanding its volume, we find the complaint deficient, from a pleading standpoint, in crucial areas and affirm the order of dismissal.

THE CONSPIRACY TO DEFAME

A gist of a civil conspiracy is not the conspiracy itself but the civil wrong which is done through the conspiracy which results in injury to the plaintiff. Liappas v. Augoustis, 47 So.2d 582 (Fla.1950); 10 Fla. Jur.2d Conspiracy § 2. An act which does not constitute a basis for an action against one person cannot be made the basis of a civil action for conspiracy. Liappas v. Au-goustis, supra. To support a cause of action for conspiracy to defame, it is therefore incumbent upon a plaintiff to properly allege those elements which would establish a defamation, one of which is a publication. Barry College v. Hull, 353 So.2d 575 (Fla.3d DCA 1977). Dr. Buckner failed to allege a publication and therefore failed to state a cause of action for conspiracy to defame, regarding statements about his alleged psychiatric commitment and attendant difficulties. In order to properly plead a publication of a defamatory matter, it must be found that a statement was communicated to some third party in order to be actionable. Owner’s Adjustment Bureau, Inc. v. Ott, 402 So.2d 466 (Fla.3d DCA 1981); Tyler v. Garris, 292 So.2d 427 (Fla. 4th DCA 1974); Fiore v. Rogero, 144 So.2d 99 (Fla.2d DCA 1962) [comments made to named reporters]. The decision of Burnham v. State, 37 Fla. 327, 20 So. 548 (Fla.1896) explains the need for the accusatory pleading to identify the particular person to whom the remarks were made with a reasonable degree of certainty. Since a separate defamation occurs with respect to each publication, a defendant should be afforded enough information to determine affirmative defenses including but not limited to res judicata. In the present case, the defamatory remarks were allegedly made to “numerous third parties on numerous occasions.” Although some do not heed to the pleading requirements, it is still mandatory under established precedent that a complaint must allege ultimate facts. Ocala Loan Company v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963). Consequently, the complaint was deficient with respect to one of the underlying requirements of defamation; namely: a properly alleged publication.

THE CONSPIRACY TO WRONGFULLY INTERFERE WITH PLAINTIFF’S PROFESSION

The next cause of action attempted to be asserted alleged that the defendants conspired to interfere with Dr. Buckner’s profession by terminating and failing to renew his privileges as a staff member of the defendant hospital. Initially, we note that a physician’s use of a public hospital is a privilege rather than a right. Bryant v. City of Lakeland, 158 Fla. 151, 28 So.2d 106 (1946); Mizell v. North Broward Hospital District, 175 So.2d 583 (Fla.2d DCA 1965). The Legislature has addressed this problem by attempting to partially immunize the hospital medical staff under Section 395.-065(1), Florida Statutes (1977) which authorizes a hospital “to suspend, deny, revoke, or curtail the staff privileges of a staff member for good cause, which shall include but not be limited to . . . [certain enumerated offenses].” [emphasis supplied] Subsection (2) of that statute further provides:

There shall be no liability on the part of, and no cause of action of any nature shall arise against, any hospital, hospital medical staff, or hospital disciplinary body or its agents or employees for any action taken in good faith and without malice in carrying out the provisions of this section.

Because the complaint, as amended, alleges that the defendants acted maliciously and in effect without probable cause, the plaintiff did allege sufficient facts to avoid the defendants’ statutory immunity provided by this section. Consequently, we must examine Dr. Buckner’s complaint, as amended, to see if it was nonetheless actionable.

We begin our analysis by observing that a cause of action for wrongful interference with a business relationship is recognized only when the interference is by one who is not a party to that relationship. Ethyl Corporation v. Balter, 386 So.2d 1220, 1224 (Fla.3d DCA 1980), rev. denied, 392 So.2d 1371 (Fla. 1981); Days v. Florida East Coast Railway Company, 165 So.2d 434 (Fla.3d DCA 1964). The relationship in this case was between Dr. Buckner and the Florida Keys Memorial Hospital. Much like a corporation, which must act through its officers, directors, and employees, Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940); Browning v. State, 101 Fla. 1051, 133 So. 847 (1931); Jewel Foliage Company v. Uniflora Overseas Florida, Inc., 497 F.Supp. 513 (M.D. Fla. 1980), so must a hospital. In the instant case, it was alleged that the “defendants,” all of whom make up the hospital’s medical staff, administration, and boards, conspired to interfere with Dr. Buckner’s profession. None of the individuals could make the ultimate decision to grant or deny staff privileges to a doctor. Such a determination can only be made by the hospital through a composite of these defendants acting in their various hospital capacities. Since the combined efforts of the defendants were required to render any decision on staff privileges, there was no interference by “third parties” when staff privileges were denied by them as a group. Ethyl Corporation v. Balter, supra, West v. Troelstrup, 367 So.2d 253 (Fla. 1st DCA 1979).

Absent the underlying tort of willful interference, there can be no cause of action for conspiracy to interfere. Liappas v. Augoustis, supra; Days v. Florida East Coast Railway Company, supra.

Additionally, an action for conspiracy to interfere with one’s profession (or conspiracy to commit any tort for that matter) requires that there has been a combination of two or more persons (or entities) seeking to accomplish an unlawful act or to accomplish a lawful act by unlawful means. The actors must have a common purpose. Kilgore Ace Hardware, Inc. v. Newsome, 352 So.2d 918 (Fla.2d DCA 1977); Renpak, Inc. v. Oppenheimer, 104 So.2d 642 (Fla.2d DCA 1958). Since a corporation must act through its officers, directors, or employees, it is well settled that a corporation cannot conspire with those persons unless the individual has a personal stake in the activity apart from that of the corporation. Jewel Foliage Company v. Uniflora Overseas Florida, Inc., supra. Accord, Girard v. 94th Street and Fifth Avenue Corporation, 530 F.2d 66 (2nd Cir.), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976) [suit brought under 42 U.S.C.A. 1985(3); identified individuals who comprise board of directors cannot conspire when acting in their official capacities]. The hospital is viewed as a single entity acting through its staff, the defendants, and therefore, by definition, was unable to conspire with itself to interfere with Dr. Buckner’s profession.

THE INDEPENDENT TORT OF CONSPIRACY

Dr. Buckner’s complaint, as amended, attempted to allege a cause of action of independent tort of conspiracy. This tort is actionable where a plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual could not possess. Churruca v. Miami Jai-Alai, Inc., 353 So.2d 547 (Fla.1977) [individual jai-alai frontons allegedly conspired to prevent plaintiffs, jai-alai players, from obtaining employment in their respective arenas]. Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958) [five kennel clubs refused a greyhound racer privileges at their respective tracks and intimidated other kennel clubs in the state to similarly boycott him]. The situation in the present case is distinguishable from the recognized rule because, as stated, any decision regarding staff privileges is necessarily made by and through the defendants acting as a single entity and therefore there could not be a combination of separate economic groups or forces.

Dr. Buckner nonetheless urges that the complaint, as amended, was sufficient under the reasoning of Margolin v. Morton F. Plant Hospital Association, Inc., 342 So.2d 1090 (Fla.2d DCA 1977). In Margolin, a surgeon was prevented from practicing his profession at the hospital through an alleged conspiracy of all the anesthesiologists on the hospital staff. There, the concerted refusal, by all of the staff anesthesiologists at a particular hospital, to anesthetize Dr. Margolin’s patients is entirely different from the termination of or refusal to renew Dr. Buckner’s hospital staff privileges. To be effective under the by-laws, questions as to staff privileges must be decided by the hospital, a single entity, which can only act through its officers, agents, and staff. As pointed out in Margolin, each anesthesiologist could individually determine whether he would provide services to a particular surgeon. By exercising that individual prerogative in combination and with each other to achieve the single objective of preventing Dr. Margolin from operating on patients at the hospital, they rendered themselves liable for the independent tort of conspiracy. Margolin is distinguishable and therefore not persuasive because the decision to terminate or not to renew Dr. Buckner’s staff privileges necessarily had to be made by the defendants as a group and did not constitute a concerted effort by separate entities but simply came about as a result of the hospital acting through its respective components.

For the foregoing reasons, the order dismissing the plaintiff’s third amended complaint is affirmed.

      . Contrary to Florida Rule of Civil Procedure 1.110(b).

      . Contrary to Florida Rule of Civil Procedure 1.110(f).

      . And subject to a motion to strike under Florida Rule of Civil Procedure 1.140(f).

      . This statute is scheduled for repeal effective July 1, 1982, § 3, Ch. 76-168, Laws of Fla. as amended by § 1, Ch. 77-457, Laws of Fla.


author: HERSEY, Judge.

text:
    John HARTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-89.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Oct. 14, 1981.
    Richard L. Jorandby, Public Defender, and Douglas N. Duncan, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant, John Hartman, appeals his conviction of robbery with a weapon, ascribing error to three aspects of his trial. We affirm.

Hartman allegedly entered a Magic Market at about midnight and, armed with a can of mace with which he threatened the cashier, emptied the cash register and then fled with the money and sundry objects. He was apprehended and tried, resulting in these proceedings.

We find no error in the evidentiary matter urged as error nor do we discern from the record that appellant preserved for appeal the refusal of the trial judge to instruct on minimum and maximum penalties as required by Tascano v. State, 393 So.2d 540 (Fla.1980).

The most significant point raised by this appeal involves the application, respectively, of Subsections 790.001(3)(b) and 790.-001(13), Florida Statutes (1979) and their relationship to Subsection 812.13(2)(b), Florida Statutes (1979).

Appellant argues that the state failed to prove an essential element of its case. The pertinent portions of the statute under which the charges were filed provide:

812.13 Robbery.—
(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
(2)(a) ....
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

The term which is critical here is “weapon” and since the weapon was alleged to be a chemical, appellant takes the position that the definition contained in Subsection 790.-001(3)(b) applies:

(b) “Tear gas gun,” “chemical weapon,” or “device” shall apply to all weapons of such nature except those designed to be carried in a woman’s handbag or a man’s pants or coat pocket or designed as a pocket pencil or pen and containing not more than one-half ounce of chemical.

Appellant takes the position that the state failed to prove that the can of mace used in the robbery contained more than one-half ounce of chemical, therefore it is not a “weapon” and the state thus failed to prove an essential element of the crime of armed robbery.

The difficulty (and fallacy) of this position is that the definition contended for by appellant is actually an exclusion from the definition of “tear gas gun,” “chemical weapon,” and “device” for purposes of application of the term “concealed weapon” defined in paragraph 3, subparagraphs (a) and (b) of this section of the statutes which is subsequently to be carried forward into those sections of chapter 790 dealing with concealed weapons.

The state correctly takes the position that the definition of “weapon” pertinent here is contained in Subsection 790.001(13): “(13) “Weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or any other deadly weapon except a firearm or a common pocket-knife.” Language in the introductory paragraph of Subsection 790.001 indicates that the meanings thereafter established shall apply “for the purposes of this chapter;” however, we do not consider that language to limit use of the definitions exclusively to chapter 790, particularly where common sense dictates that a definition set forth there may have perfectly reasonable application elsewhere. The same considerations would apply to the definition contended for by appellant, in any event.

The state having proved that appellant was armed with a can of mace during the robbery, we find no error by omission in the state’s presentation of its case.

We therefore affirm.

AFFIRMED.

DOWNEY and MOORE, JJ., concur.


text:
    Frank NUNZIATO, individually, and as Personal Representative of the Estate of Lena Nunziato, deceased, Frank F. Nunziato and George T. Nunziato, by and through Frank Nunziato, their father and next friend, Appellants, v. P & L AUTO PARTS, INC. and South Carolina Insurance Company, Appellees.
    No. 80-2200.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Oct. 7, 1981.

      Kermit G. Kindred and Richard R. McCormack, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW (Ret.), Associate Judge.
   FERGUSON, Judge.

Lena Nunziato was killed while a passenger in a vehicle owned by appellee P & L Auto Parts, Inc. and insured by appellee South Carolina Insurance Co. Frank Nun-ziato individually and as personal representative of Lena’s estate, appeals from a summary judgment entered in favor of appel-lees in the wrongful death action below. We affirm.

Lena was killed when the vehicle in which she was riding crashed head-on while rounding a “S” shaped curve. An autopsy on the driver of the P & L Auto Parts car, Kenneth Lorenzo, revealed that he had a .14 percent blood-alcohol level at the time of the accident. The driver of the other car, George DeMoya, stated that a few hours before the collision, he had taken a couple of quaaludes mixed with a few drinks. It was estimated that DeMoya was traveling about 60 miles per hour; Lorenzo between 35 to 55 miles per hour. The posted speed limit is 30 miles per hour. DeMoya’s vehicle crossed the center-line almost five feet into Lorenzo’s lane. Lorenzo’s vehicle did not cross the center-line and the accident occurred in the lane occupied by Lorenzo’s vehicle. DeMoya admits to having dozed off to sleep shortly before the collision. In deposition, appellee’s expert witness testified that the driver of the P & L Auto Parts vehicle would have had one to one-and-a-half seconds to act after DeMoya’s car started to brake and that an on-coming driver could not react sufficiently to avoid impact in that period of time. The issue on appeal is whether the actions of Lorenzo were a proximate cause of Lena’s death.

Even if we assumed that Lorenzo was negligent in that he was driving with a high blood-alcohol level and speeding — although there is no conclusive evidence as to speed — he may not be held liable for this negligence if the damage was caused by an active and efficient intervening cause. See, e. g., Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980) and cases collected therein.

There is no evidence that Lorenzo set in motion a chain of events resulting in death to Lena, see, e. g., Gibson, supra, or that the cause of the accident and the sole proximate cause of Lena’s death was other than the intervening conduct of DeMoya. Nor is this a case where the intervening cause is foreseeable. Cf. DWL, Inc. v. Foster, 396 So.2d 726 (Fla. 5th DCA 1981) (intervening cause of foreclosure as a consequence of failure to pay mortgages, foreseeable). Whether the intervening cause is foreseeable depends on whether the harm that occurred was within the scope of the risk created by the defendant’s conduct. On this record there is no factual dispute as to question of foreseeability.

Where, as here, there is an active and efficient intervening cause, the question of proximate cause is one for the court. Nance v. James Archer Smith Hospital, Inc., 329 So.2d 377 (Fla.3d DCA 1976), cert. denied, 339 So.2d 1171 (Fla.1976); Kwoka v. Campbell, 296 So.2d 629 (Fla.3d DCA 1974), cert. denied, 304 So.2d 450 (Fla.1974).

The entry of final summary judgment for appellees is affirmed.


author: HERSEY, Judge. HURLEY, Judge,

text:
    ADOBE BUILDING CENTERS, INC., Appellant, v. L. D. REYNOLDS, Country Club Construction, Inc., et al., Appellees.
    No. 78-1469.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Oct. 16, 1981.
    Chad P. Pugatch of Houston, Faircloth, Cooper, Easthope & Kelley, Fort Lauder-dale, for appellant.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   HERSEY, Judge.

This appeal presents a question which we find to be unique in Florida jurisprudence. The issue is whether one who purchases a product from a retailer or wholesaler and mixes or combines it with another product or substance with the intention of reselling the end product may recover against that seller for property damage under the doctrine of strict liability in tort. We first review the facts.

Appellant, Adobe Building Centers, Inc., is a distributor of construction materials including Portland cement and masonry cement or mortar mix, which, when combined with sand and water, produce stucco. Each of the appellees is involved in the development, construction or sale of residential housing in South Florida. None is in privity with Adobe, but each hired or subcontracted with plasterers to prepare and apply a stucco finish to the homes under construction. The testimony reveals that all the stucco materials were purchased from Adobe. Upon application to the homes, a “pop-out” phenomenon occurred. It was described at trial in this fashion:

[W]hen you look at the stucco exterior of the house, it looked like someone took a machine gun and shot it full of holes. The stucco pops ranged from a dime size to maybe a half a dollar, and the entire exterior of the house was peppered with these little stucco pops.

At the time of trial, one of the appellees, Flag Development Corp., held title to a home with defective stucco. The remaining appellees had extended express warranties to the home buyers and thus were required to remedy the defective stucco.

Appellees brought an action for damages against appellant on several legal theories. Count III of the complaint was based on strict liability and remains the only viable alternative for some appellees.

The trial court entered directed verdicts on the question of liability, in effect finding that under the facts and circumstances of this case strict liability should be imposed.

As Mr. Justice Holmes said in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921), “a page of history is worth a volume of logic.” We find that adage particularly apt here.

The development of strict liability had its origins in cases arising out of personal injury resulting from contact with or proximity to products either defective or dangerous. Initially, one so damaged had nowhere to turn for recompense. Neither breach of warranty nor negligence nor any other existing cause of action could be tailored, without substantial alteration, to fashion a remedy. Strict liability was evolved, piece by piece, to fill this void. Prosser, Torts §§ 96-104 (4th Ed. 1971).

Given this brief rationale for the evolution of the doctrine, we turn our attention to Florida applications of strict liability.

In Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953), a wholesaler of seed was held liable to an ultimate purchaser for selling seed which was not fit for its intended purpose and was of poor quality. There was no privity involved and no personal injury. The court did not specifically refer to the doctrine of strict liability but only a strained analysis avoids the conclusion that it was, indeed, the rationale employed.

Although our own Court, in Keller v. Eagle Army-Navy Department Stores, Inc., 291 So.2d 58 (Fla. 4th DCA 1974) permitted recovery against a seller for personal injuries to one not in privity, strict liability again was not specifically addressed. The issue was further clouded because, while the product there was not determined to be a dangerous instrumentality, it was found to be a “potentially dangerous product.”

. The foundation thus having been laid by innuendo, the doctrine of strict liability was specifically applied by the supreme court in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976). In that case a manufacturer was held liable to an innocent bystander for personal injuries occasioned by a defectively designed product. The contrast between the operative elements of that case and the present one is marked but perhaps not conclusively so. That case involved a manufacturer; this one deals with a seller. That case involved damages for personal injury; in this one the end result was property damage. Lastly, West was an innocent bystander and appellees here are purchasers of an allegedly defective product which is eventually to be resold.

Appellant contends that strict liability ought not be extended beyond West, at least until the supreme court so extends it. In addition to the latter admonition, the argument is basically two-pronged.

First, according to appellant, there is no good reason to encompass a seller within the ambit of strict liability. However, we note that the supreme court, in West, relied heavily on Restatement (Second) of Torts § 402A (1965), which specifically refers to a seller as being subject to strict liability.

Appellant’s second argument is that one who buys a product and mixes it with something else and then resells the resulting end product has no standing to invoke the doctrine of strict liability, not being an ultimate consumer or user. The other side of this argument is exemplified by Comment 1 to Restatement (Second) of Torts § 402A (1965) which indicates that the term “consumer” is to be construed broadly so as to include one who prepares the product for consumption:

“Consumers” include not only those who in fact consume the product, but also those who prepare it for consumption. . . . Consumption includes all ultimate uses for which the product is intended. . . . “User” includes those who are passively enjoying the benefit of the product ... as well as those who are utilizing it for the purpose of doing work upon it. . . .

Restating the issue with which we began this analysis and substituting our conclusions for the initial questions, we discern that a retail or wholesale seller may be held strictly liable in tort for damage occasioned to the property of one who purchases the product and prepares it for use by an ultimate consumer. Having determined that appellees fall within this latter category and there being no question that appellant falls within the former, we hold that the trial court was correct in directing verdicts on the question of liability and in effect applying the doctrine of strict liability in tort to the facts of this case.

AFFIRMED.

MOORE, J., concurs.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

specially concurring.

As I see it, this appeal presents three separate issues: (1) whether the Restatement (Second) of Torts § 402A, as incorporated into Florida’s jurisprudence, extends to property damage in addition to personal injury; (2) whether strict liability in tort, or as it is sometimes called, products liability, may be asserted against retailers and distributors as well as manufacturers; and (3) whether under the facts of this case or as a matter of law, appellee/developers are ultimate users or consumers.

Since question 3 is a threshold issue, I begin there. Appellant argues that appel-lees are commercial entities within the chain of commerce and, thus, may not qualify as an ultimate user or consumer. I reject this contention. Although appellees are business entities which construct and sell homes for profit, they also caused the stucco materials to be purchased and prepared for their intended use. Thus appel-lees are, as a matter of fact, “users” and not merely “passers-on” within the chain of commerce. Appellee/developers are at the end of the stream of commerce; it was their property which was damaged and that it was later sold is irrelevant.

In the landmark case of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (1962), Justice Traynor stated:

The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than the injured persons who are powerless to protect themselves.

This rationale has consistently led courts to impute greater and greater inclusiveness to the terms “ultimate user or consumer.” Prosser points out that from the outset “both terms were .. . applied in a very broad sense.” And indeed, a portion of Comment “1” to Section 402A, which is set forth below, indicates that such was the intent of the draftsmen.

“Consumers” include not only those who in fact consume the product, but also those who prepare it for consumption .... Consumption includes all ultimate uses for which the product is intended. . . . “User” includes those who are passively enjoying the benefit of the product ... as well as those who are utilizing it for the purpose of doing work upon it. . . .

The notion that business entities could not be ultimate users or consumers and thus not entitled to sue in strict liability was firmly rejected by the court in Potsdam Welding and Machine Co. Inc. v. Neptune Microfloc, Inc., 57 A.D.2d 993, 394 N.Y.S.2d 744 (3d Dept. 1977). Potsdam, a welding contractor, incurred liability for property damage at a municipal water filtration plant. Apparently its employees were doing welding work when a spark from one of the welding torches fell upon a plastic tube settler, resulting in a fire which caused substantial property damage. Therefore, Potsdam’s insurer brought an indemnification action based on strict liability against Neptune, the supplier of the plastic tube settlers. Neptune, in turn, moved to dismiss the strict liability count, claiming that strict liability did not apply where both parties were “industrial/commercial” specialists and only property losses were involved. The trial court denied the motion and the appellate court affirmed. It said, “[w]e find no basis in case law or reasons of policy for defendant’s position.” Id. at 745. The court elaborated on its decision and said:

“[U]nder a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury”. . . . It is apparent that in holding the manufacturer liable to “any person” injured “or damaged”, the Court of Appeals has made no distinction between ordinary consumers and “commercial/industrial specialists” or between personal injuries and property damage. Id. at 745-746. (Citations omitted.)

The court further held:

Defendant further asserts that “commercial/industrial specialists” in a particular field of trade necessarily have expertise and knowledge in regard to the technology of other fields and should not, therefore, be protected by strict products liability. In our view, however, the complexity and diversity of today’s technology places the manufacturer or seller of a particular product in a position little different from the ordinary consumer with respect to sophisticated products unrelated to his own, particularly where he is a remote user or non-user. Special Term properly denied defendant’s motion to dismiss plaintiff’s fourth cause of action. Id. at 746.

Other examples of a business entity’s unrestricted right to sue in strict liability include All-O-Matic Industries, Inc. v. Southern Specialty Paper Co., Inc., 49 A.D.2d 935, 374 N.Y.S.2d 331 (2d Dept. 1975) and Infante v. Montgomery Ward & Co., Inc., 49 A.D.2d 72, 371 N.Y.S.2d 500 (3d Dept. 1975). All-O-Matic is strikingly similar to the case at bar. It involved a business entity which purchased resin-impregnated paper in order to produce swimming pool filters. Due to an alleged defect in the paper, a rare chemical reaction occurred which caused spontaneous combustion and resulted in fire damage to All-O-Matic’s plant. Reviewing these facts, the appellate court held that All-O-Matic was entitled to rely on strict liability in its suit against the paper manufacturer. Infante, on the other hand, is slightly different from the case at bar in that it was initiated by a consumer who claimed she was injured when her pajamas caught fire. She instituted suit against the retailer, the manufacturer of the pajamas, and the manufacturer of the fabric. Relevant to our case is the fact that the appellate court expressly allowed the retailer and the manufacturer of the pajamas to cross-claim against the fabric manufacturer for indemnity based on strict liability. It is noteworthy that in each of these cases the primary focus of the court was on the alleged cause of the injury. Where the complainant — be it an individual or business entity — alleged injury from a defectively manufactured or designed product, recourse through strict liability was permitted.

Clearly, the terms “ultimate user or consumer” connote a person or entity at the end of the “stream of commerce” and, to continue the metaphor, I would suggest that case law shows this is a stream which terminates in a delta; it is wider and more inclusive at its mouth than at its narrow beginnings. This concept is in harmony with Prosser’s comment that “[a]ny user or consumer of the product, in the broadest sense of the terms, is protected by the strict liability rule.” Thus, myriad entities have been allowed to assert claims of strict liability predicated on allegations of property damage or physical injury sustained while engaged in the preparation of the product for its intended use while lawfully enjoying the benefits of the product, while working on or repairing the product, or while enjoying the status of a bystander.

Even if it is conceded for the sake of argument that appellees were not the ultimate consumers of the stucco materials, certainly, under the foregoing principles of inclusion, they are users in that they prepared and worked on the product for its intended use. Moreover, the facts of the case provide a second and equally compelling justification for appellees’ right to proceed on strict liability. Four of the developers gave express warranties to the home-buyers which obligated the developers to repair the defective condition. Though we have been provided with an abbreviated transcript, no one has suggested that the developers were not obligated or did not fulfill their warranty obligations. Therefore, by virtue of these independent contracts, the developers stand in the shoes of the homebuyers and are able to assert any claim available to the homebuyers. As for the fifth developer, Flag Development Corp., unquestionably it is an ultimate user or consumer for it held title to the realty at the time of the commencement of the trial.

Turning to the remaining issues, it is my view that the Florida Supreme Court in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), incorporated the Restatement (Second) of Torts § 402A into our jurisprudence. “We adopt the doctrine of strict liability as stated by the A.L.I. Restatement (Second) of Torts § 402A.” Id. at 87. By its very language, Section 402A applies to “physical harm thereby caused to the ultimate user or consumer, or to his property.” (Emphasis supplied.) Thus I conclude that Section 402A under Florida law extends to the damage complained of in the case at bar.

While the scope of Section 402A has not been definitively addressed in Florida, the overwhelming weight of authority throughout the country suggests that it should apply to retailers and distributors as well as manufacturers. The rationale for this conclusion was succinctly put by Justice Tray-nor in the seminal case of Vandermark v. Ford Motor Company, 61 Cal.2d 256, 37 Cal.Rptr. 896, 899, 391 P.2d 168, 171 (1964):

Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.

The weight of authority which has espoused and applied this rationale cannot be denied. Therefore, I concur with the holding that Adobe, as the distributor of an allegedly defective product, is a proper party defendant within the scope of Section 402A.

      . W. Prosser, The Law of Torts 662 (4th ed. 1971).

      . Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 817 (1966).

      . Reliance Ins. Co. v. AL E. & C., Ltd., 539 F.2d 1101 (7th Cir. 1976) (business entity’s insurer permitted to sue on strict liability for property damage incurred while equipment was being transported from railside to construction site); Frazier v. Kysor Industrial Corp., 607 P.2d 1296 (Colo.App.1979) (strict liability claim by moving company’s employee for personal injuries incurred while moving a four ton saw from distributor’s warehouse to purchaser’s premises); Hamilton v. Motor Coach Industries, Inc., 569 S.W.2d 571 (Tex.Civ.App.1978) (strict liability claim by expert mechanic for personal injuries incurred while attempting to repair or rebuild a spring loaded air cylinder); Caruth v. Mariani, 11 Ariz.App. 188, 463 P.2d 83 (1970) (action on strict liability allowed for injured bystander).

      . § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer. (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . But see Rice v. Walker, 359 So.2d 891 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1127 (Fla.1979) (allowing amendment of complaint which failed to state cause of action in strict liability against retailer because it lacked allegations showing how components were defective); Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 188 (Fla.1978) (allowing amendment of complaint to include cause of action in strict liability against retailer).


author: PER CURIAM. LETTS, Chief Judge,

text:
    EARL HOLLIS, INC., Appellant, v. FRASER MORTGAGE COMPANY, etc., Appellee.
    No. 80-1639.
    District Court of Appeal of Florida, Fourth District.
    Aug. 26, 1981.
    Rehearing Denied Oct. 13, 1981.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    L. M. Taylor, North Palm Beach, for ap-pellee.
   PER CURIAM.

While the final argument of defendant’s counsel was egregiously improper, we find that the plaintiff specifically waived the right to a mistrial on that ground below and therefore may not insist upon the issue on appeal. Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980); 3 Fla.Jur.2d Appellate Review § 292 (1978); see State v, Cumbie, 380 So.2d 1031 (Fla.1980). The other points raised present no error.

AFFIRMED.

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

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting.

I do not agree that the plaintiff “specifically waived the right to a mistrial.” The colloquy in substance consisted of an enqui-ry by plaintiff’s counsel as to whether the judge would postpone a ruling on any motion for a mistrial. To this the judge responded in the negative. In my view no motion for a mistrial was ever actually made to be waived. An actual motion for mistrial was not required under the facts of this case according to Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978) and Seguin v. Hauser Motor Company, 350 So.2d 1089 (Fla. 4th DCA 1977).


author: COBB, Judge. COWART, Judge,

text:
    Eugene W. NABLE, Appellant, v. The ESTATE OF Mae Clinton GODFREY, Deceased, and The Estate of Eliza Gertrue Godfrey Nable, Deceased, Appellees.
    Nos. 81-9, 81-10.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 1981.
    Rehearing Denied Sept. 28, 1981.

      Michael H. Lambert, P.A., Daytona Beach, for appellant.
    Louis Ossinsky, Jr., of Ossinsky, Krol & Hess, Daytona Beach, for appellees.
   COBB, Judge.

This appeal raises the question of the extent to which one spouse, convicted of the manslaughter of the other, can inherit through intestate succession from the decedent. Elizabeth Gertrue Godfrey Nable owned an interest in real property inherited from her mother, Mae Clinton Godfrey, and also a parcel of real property held jointly with her husband, Eugene W. Nable, the appellant. On July 9,1979, after a drunken argument, the Nables struggled over a pistol with the result that she was shot and killed. She was survived by her husband and three children by a prior marriage: Charles Adrian Roberts, Larry Gerard Roberts, and John David Roberts.

Nable was first charged with murder in the second degree, and then the state filed an amended information charging manslaughter, to which he entered a plea of nolo contendere. He was adjudicated guilty on August 20, 1980, and placed on five years probation.

Thereafter, the personal representative of the estates of Eliza Nable and her mother, Mae Godfrey, filed petitions with the probate division of circuit court to determine the heirs of each of the estates. The cases were consolidated for non-jury trial, which resulted in entry of the following order in December, 1980:

ORDER ON DETERMINATION OF HEIRS
This cause came on to be heard for trial on the Petition to Determine Heirs, filed by the Personal Representative. The court having heard the evidence, observed the witnesses, reviewed the documentary evidence and the memoranda and authority cited by counsel, and being fully advised in the premises, finds as follows:
1) Gertrue Godfrey Nable a/k/a Eliza Gertrude Godfrey Nable, died intestate on July 9, 1979. At the time of her death, she was survived by a husband, Eugene W. Nable, and three children, Charles Adrian Roberts, Larry Gerard Roberts, and John David Roberts. The evidence reflects that her death was brought about as the result of a willful act on the part of the husband, Eugene W. Nable. The greater weight of the evidence shows, and Eugene W. Nable has admitted, that in the course of an argument between him and his wife, that he got a loaded gun, pointed it in the decedent’s presence in a way that required her to try to protect herself, during the course of which the gun fired and killed her. That under the facts and circumstances, the firing of the gun constituted a willful and wanton act.
The said Eugene W. Nable was originally charged with the crime of murder in the second degree, as having caused the death of Eliza Gertrude Godfrey Na-ble, deceased, and thereafter he pled nolo contendere to the crime of manslaughter by culpable negligence, a felony, as having caused her death, and was adjudged guilty thereof. Culpable negligence is a wanton act in nature.
Upon consideration of the applicable law, the court is of the opinion that Eugene W. Nable should not be permitted to profit from his own willful, wrongful and wanton act, which resulted in the death of his wife. It is thereupon,
ORDERED and ADJUDGED as follows:
A) That the surviving heirs at law, entitled to inherit property from the Estate of Gertrue Godfrey Nable a/k/a Eiza Gertrude Godfrey Nable, are Charles Adrian Roberts, Vs of the distributable estate, Larry Gerard Roberts, Vs of the distributable estate, and John David Roberts, Vs of the distributable estate.
B) No portion of the distributable estate shall be payable to Eugene W. Na-ble, and as a matter of law, the court finds that he is not entitled to share, as an heir at law, through his now deceased wife, Gertrue Godfrey Nable a/k/a Eliza Gertrude Godfrey Nable, deceased.
C) That as to any jointly owned property, which Eugene W. Nable and Ger-true Godfrey Nable a/k/a Eliza Gertrude Godfrey Nable, deceased, owned together as husband and wife, at the time of decedent’s death, it is hereby determined that by virtue of the death of said decedent, they became tenants in common as if their marriage had been previously dissolved and Vz thereof be and it is an asset in said decedent’s estate subject to administration and distribution, and Vz thereof is the separate property of Eugene W. Nable.
DONE and ORDERED in Chambers at De Land, Florida, this 2nd day of December, 1980.

The only issue raised on appeal is whether or not the trial court “erred in excluding Eugene Nable from inheriting under his wife’s estate.” The issue in regard to the jointly-held property determined by paragraph C of the order is not raised on appeal and, therefore, we do not consider it.

Section 732.802, Florida Statutes (1979) states:

A person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or take any part of his estate as a devisee. The part of the decedent’s estate to which the murderer would otherwise be entitled should pass to persons entitled to it as though the murderer had died during the life time of the decedent. [Emphasis added].

The wording of Section 732.802 is plain, concise, and unambiguous. Its purpose is to preclude an individual who has murdered a decedent from inheriting any portion of that decedent’s estate. Manslaughter is not murder.

In deciding this case, the trial court relied upon the principles enunciated in In Re: The Estate of Nunnelley, 343 So.2d 657 (2d DCA 1977). The Nunnelley decision and the cases upon which it was predicated, Ashwood v. Patterson, 49 So.2d 848 (Fla.1951), and Carter v. Carter, 88 So.2d 153 (Fla.1956), dealt specifically with properties transferred outside testate or intestate succession, such as estates held by the entirety or the proceeds of a life insurance policy. Those cases, therefore, were not governed by section 732.802, Florida Statutes.

In Peeples v. Corbett, 117 Fla. 213, 157 So. 510 (1934), the Supreme Court held that a complainant seeking to work a forfeiture under then section 731.31, Florida Statutes, currently section 732.802, failed to state a cause of action where it did not allege a conviction of murder. Justice Buford stated:

It will be noted that the legislative enactment only excludes those from inheritance who have been convicted of murder of a decedent from whom they would otherwise inherit.
This is a salutary provision and the condition applying only to those who have been convicted of murder is a wise one. If one murders his ancestor, he should not profit by his wrong, but, before he should be required to forfeit his right of inheritance, his guilt should be established beyond a reasonable doubt. [Emphasis added].

Peeples v. Corbett, 157 So. 510, 511.

In Hill v. Morris, 85 So.2d 847 (Fla.1956), the Supreme Court held that prior to the forfeiture pf an inheritance, there must be a conviction of murder, and that absent that allegation or fact, there can be no forfeiture. If that bar should be extended, it is a task to be done by the Legislature and not by the courts in an attempt to apply the principles of Ashwood, Carter, or Nunnelley.

The petitioner’s complaint was without an allegation of a conviction of murder, nor was there any such proof or allegation proffered during the hearing, nor any contained within the trial court’s order dated December 2,1980. Therefore, Eugene Nable must be reinstated as an heir under his wife’s estate. Accordingly, paragraphs A and B of the trial court’s order are reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, C.J., concurs.

COWART, J., concurs specially.

COWART, Judge,

concurring specially:

The common law principle that one should not benefit from his own wrongdoing was applied to prevent one who wrongfully caused another’s death from receiving any benefit from such death long before Section 732.802, Florida Statutes (1979), or its predecessor statutes, ever existed. That principle is still applied by the courts today to achieve justice in the absence of statute and has been applied: to prevent one tenant of an estate by the entirety, who slays the other, from acquiring a survivor’s interest, Ashwood v. Patterson, 49 So.2d 848 (Fla.1951); to prevent a beneficiary from receiving the proceeds of an insurance policy on the life of one whom he unlawfully and intentionally killed, Carter v. Carter, 88 So.2d 153 (Fla.1956); Founders Life Assurance Co. of Fla. v. Harrell, 247 So.2d 20 (Fla. 1st DCA 1971); and to prevent a child who murdered his parents from taking any interest in U.S. Savings Bonds owned jointly with the parents, notwithstanding a will provision in the child’s favor. In Re Estate of Yanowsky, 384 So.2d 1297 (Fla.2d DCA 1980). In the absence of section 732.802, Florida Statutes (1979), the courts could use the same principle to deny an inheritance to one who is blameworthy for his ancestor’s death.

Notwithstanding the language in Peeples v. Corbett, 117 Fla. 213, 157 So. 510 (1934) lauding the statute requiring a criminal conviction of murder in order to prevent a killer from inheriting from a victim, I think it is ironic that this statute, ostensibly enacted to enable the courts to deny benefit to a killer, is now used as the very tool to accomplish what it was designed to prevent. The relative rights to the property of a decedent, as between the decedent’s killer and the decedent’s other heirs or devisees, should not be left to depend on the willingness of the public prosecuting officer and the ability of a criminal defense counsel to make a deal as to one degree of homicide rather than another. The present statute should be replaced with one merely stating the broader principle that one whose act, procurement, or culpable negligence causes the death of another shall receive no property or other benefit as a result of such death.

      . The jurisdiction of the probate court in regard to the joint property issue was not raised by any party, either below or on this appeal.


text:
    ERIK ELECTRIC COMPANY, INC., Appellant, v. Bruce ELLIOT, a/k/a Bruce Allen, d/b/a Era Electric Co., Appellee.
    No. 81-40.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Rehearing Denied Oct. 5, 1981.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Colodny & Fass, North Miami, for appellant.
    Arthur B. Stark, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

This case is before the court for the second time. In the first case we reversed the final judgment which had granted a directed verdict at the end of the plaintiff’s case. Erik Electric Company, Inc., v. Elliot, 375 So.2d 1136 (Fla. 3d DCA 1979). We now reverse again and remand with instructions to enter judgment for the appellant on the accounting of profits realized from use of the customer lists and to hear evidence on monetary damages. We conclude that appellee presented no competent evidence to refute the appellant’s prima facie case showing that distilled listings constituted a trade secret. See Erik Electric Company, supra. See, e. g., Kelly v. Kinsey, 362 So.2d 402, 404 (Fla. 1st DCA 1978) (opinion of witness worth no more than the reasons on which it is based). Accord, Le Fevre v. Bear, 113 So.2d 390 (Fla. 2d DCA 1959).

Reversed.