author: NESBITT, Judge.

text:
    Howard BECK, as Personal Representative of the Estate of Vincent Pinto a/k/a Vince Pinto, Deceased, Individually and on behalf of the Estate of Vincent Pinto, Deceased, etc., Appellant, v. Dawn BECK, a/k/a Dawn R. Beck, Appellee.
    Nos. 79-1116 to 79-1118.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.

      Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellant.
    Miller & Podell and Mortimer I. Podell, Miami Beach, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   NESBITT, Judge.

Howard Beck appeals an order of the probate court holding him personally liable to Dawn R. Beck, his daughter, for improper administration of the estates of Vincent Pinto and Selma Pinto as well as improper administration as guardian of the property held for Dawn as a minor. No error having been demonstrated, we affirm the order of the probate court.

The Pintos died testate and Mr. Beck qualified as personal representative of their estates in 1975. Mr. Beck and Dawn were the principal heirs and residual beneficiaries of both of the estates, the aggregate value of which was approximately $700,000. Mr. Beck was required to qualify as guardian of the property which Dawn received because her distributable share exceeded $5,000. Dawn became emancipated on November 18, 1977. Prior to that time, the Pintos’ estates were closed. Shortly after she attained her majority, Dawn procured an order from the probate court requiring the Pintos’ estates to be reopened and final accountings to be prepared in both the decedents’ estates and in her guardianship estate. Dawn then filed objections to the final accountings. The objections were consolidated for trial because of their interrelationship. After hearing voluminous testimony and evidence, the probate court issued the order appealed from holding Mr. Beck personally liable to his daughter for the sum of $75,138.41.

Mr. Beck contends generally that the probate judge erred in shifting the burden of proof to him, as a fiduciary, to overcome Dawn’s objections to his final accounting. He specifically contends that the probate court erred in holding him personally responsible for the continued operation of Mr. Pinto’s former businesses, racing greyhounds and the breeding and training of horses, in that the continuance was authorized by the omnibus provision of Mr. Pinto’s will.

BURDEN OF PROOF

In estates of decedents and wards, the party bearing the affirmative of an issue has the burden of proof. 34 C.J.S. Executors and Administrators § 784 b; 39 C.J.S. Guardian and Ward § 155 a. This is in accordance with the general rule that the proponent of an issue carries the burden of proof ordinarily by the greater weight of the evidence. 13 Fla.Jur. Evidence §§ 58, 431.

In the instant case, Mr. Beck, as personal representative, conceded that he failed to maintain adequate records and that he commingled guardianship, estate and personal funds. The probate court further found that he failed to substantiate loans which he claimed were personally advanced to the estate. This admission and finding invoked the presumption applicable to a trustee of an express trust and shifted the burden of going forward with the evidence to the personal representative. As stated in Benbow v. Benbow, 117 Fla. 37, 157 So. 512 (1934);

If the trustee fails to keep clear, distinct, and accurate accounts, all presumptions are against him and all obscurities and doubts are to be taken adversely to him. If he loses his accounts, he must bear any resulting damage. .
The burden of proof is upon him to show that the money expended was a proper disbursement.

157 So. at 519. See also Vol. II Scott on Trusts § 172 (2d ed. 1956). A personal representative of an estate and a guardian of property are required to exert the same standard of care as that of a trustee acting under an express trust. The funds of decedents and wards are nothing more than trust funds. In re Estate of Maxcy, 240 So.2d 93 (Fla.2d DCA 1970). Consequently, the probate court properly required Mr. Beck to overcome certain of the objections filed and simply found that he failed to do so.

FEES

Mr. Beck claimed, and the Internal Revenue Service allowed, aggregate gross attorneys’ fees in the Pintos’ estates in the sum of $67,500. He had a court order to disburse $20,000 of that sum. Dawn challenged the reasonableness and necessity of the fees paid. At the time the objections were heard, the Florida Probate Code of 1976 had been amended to permit the personal representative to compensate, without obtaining a court order: himself, attorneys, accountants, appraisers and other agents employed by him. § 733.617, Fla.Stat. (1977). However, Dawn’s challenge to payment of that compensation invoked Section 733.6175, Florida Statutes (1977), which placed the burden of proof as to the propriety, reasonableness and necessity of such payments upon the personal representative. Mr. Beck’s own expert witness placed the maximum allowable range of attorneys’ fees at $45,000.

The probate court correctly placed the burden of proof on Mr. Beck to produce evidence to justify payment of such compensation. Having failed to meet that burden, Mr. Beck was properly charged with liability for the excess.

CONTINUATION OF DECEDENT’S BUSINESS

Paragraph seven of Vincent Pinto’s will contained an omnibus clause which provided:

My Executor shall have full and unrestricted discretionary power and authority to hold, manage, control, improve, grant, convey, deliver, assign, transfer, lease, option, mortgage, pledge, borrow upon the credit of, contract with respect to, or otherwise deal with or dispose of, without application to or order of court, the property of my estate and trust estate, without any duty upon any person dealing with them to see to the application of any money or other property delivered to them, it being my express intention to confer every power of management which might be conferred upon them by an express enumeration of separate powers.

Mr. Beck contends that the quoted paragraph authorized him to continue Mr. Pinto’s business without court order. Under the Probate Code of 1933 as amended, the continuation of a decedent’s business was authorized only by will, order of the court, or by statute. Conant v. Blount, 141 Fla. 27, 192 So. 481 (1939); In re Estate of Bridges, 282 So.2d 197 (Fla. 1st DCA 1973). When authority to continue a decedent’s business is - provided by will “such authorization should be in distinct and positive terms.” 31 Am.Jur.2d Executors and Administrators § 221.

The Probate Code of 1976 is largely declaratory of the prior decisional law. Section 733.612(22), Florida Statutes (Supp. 1976) authorizes the personal representative to continue a decedent’s unincorporated business for a period of four months from the date of his appointment if continuation is a reasonable means of preserving the value of the business including good will.

An omnibus clause is not exculpatory in nature. It is a grant of authority. The personal representative, who acts pursuant to the authority of a will or the probate code, may nonetheless be held liable for improper administration or mismanagement of a decedent’s estate. In re Anderson’s Guardianship, 75 So.2d 790 (Fla.1954); In re Estate of Feldstein, 292 So.2d 404 (Fla.3d DCA 1974). The omnibus clause did not authorize continuation nor did it insulate Mr. Beck if he chose to continue Vincent Pinto’s businesses.

The record reflects the probate court’s concern with the mismanagement of Dawn’s guardianship estate. The probate court had ordered that all guardianship accounts be restricted so as to prohibit the guardian of the property from making withdrawals without a special court order. In spite of this, no accounts were ever established and the funds were admittedly comingled.

Funds distributed to Dawn’s guardianship estate were used to defray operational costs of businesses run on behalf of Mr. Pinto’s estate. Absent court approval, payments could not properly be made with funds of the guardianship estate to operate the decedent’s estate. § 744.444, Fla.Stat. (1979). Other funds allocable to Dawn’s distributable share were utilized to provide for her personal care and maintenance. Mr. Beck, having the ability to provide for his minor daughter’s sustenance and maintenance, could not properly invade her guardianship estate unless specifically authorized by order of the court. § 744.-397(3), Fla.Stat. (1979).

CONCLUSION

At trial, it was conceded that Mr. Beck was indebted to Dawn in the sum of $27,416.58. Mr. Beck complains here of the probate court’s failure to make specific findings regarding the improper management of the estates and to assess dollar values thereto so as to justify the remaining surcharge of $47,721.83. While this undoubtedly would have been the better practice and would have aided this court in the resolution of the matter, the probate courts of this state have no such responsibility. The record amply reflects the propriety of the surcharge against Mr. Beck for payments he made with funds from Dawn’s share of the estate for: (1) her use and benefit (without obtaining court approval); (2) overpayment of attorneys’ fees; and (3) improperly documented loans claimed to have been personally made to the estate.

An order of the probate court arrives in the appellate court clothed with the presumption of its correctness and will be affirmed if it can be supported on any theory. In re Estate of Schor, 172 So.2d 888 (Fla.3d DCA 1965). The findings of a probate court are entitled to the same weight as the findings of any other trier of fact. In re Estate of Winslow, 147 So.2d 613 (Fla.2d DCA 1962). The burden is on the appellant to show that the findings and order of the probate court are clearly erroneous. Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1933).

Affirmed.

      . § 744.301(2), Fla.Stat. (1975). Both decedents’ estates as well as Dawn’s guardianship estate were commenced under the Florida Probate Act of 1933 as amended and prior to substantial amendments to the Florida Guardianship Law, all of which became effective January 1, 1976.

      . § 743.07, Fla.Stat. (1977).

      . The objections to the accountings were tacitly tried as a petition to hold the personal representative personally liable pursuant to Section 733.609, Florida Statutes (1977).

      . The order also retained jurisdiction to tax attorney’s fees in favor of Dawn [§ 733.609, Fla.Stat. (1977)] but that feature of the order is not challenged.

      . See Sections 733.602(1), 737.302 and 744.-377(1), Florida Statutes (1975) which were in effect during the period of the guardianship and administration of the Pintos’ estates. These statutes establishing the “prudent trustee” standard remain unchanged.

      . Had the attorneys who received the compensation been afforded notice and been joined in the proceedings, the court might have required them to make appropriate refunds. § 733.6175, Fla.Stat. (1977).

      . All of the powers conferred upon the personal representative under Section 733.612, Florida Statutes (Supp.1976) may be negated or ratified either by the will or by court order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    George LOCKE, Appellant, v. Maxine LOCKE, Appellee.
    No. 79-1279.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Jeffrey R. Roth, Miami, for appellant.
    Sylvester P. Adair, Homestead, for appel-lee.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The order determining property rights and support payments which is under review by this appeal is reversed on a holding that: (a) the trial court’s prior interlocutory order herein dissolving the marriage between the parties and reserving jurisdiction “for the next 90 day period for the purpose of determining the property rights and support payments on a permanent basis,” although perfectly proper, specifically limited the trial court’s jurisdiction to enter the order appealed from within the specified 90 day jurisdictional period, (b) the trial court had no jurisdiction to enter the order appealed from as it was entered far beyond the 90 day jurisdictional period previously reserved by the trial court, and (c) Section 689.15, Florida Statutes (1979), became applicable by operation of law upon expiration of the above 90 day jurisdictional period so that all property held by the parties as tenants by the entireties at the time of the marriage dissolution thereafter became converted into property held as tenants in common. The cause is, accordingly, remanded to the trial court with directions to vacate the order under review and to enter an order dividing all marital property held at the time of the marriage dissolution in accordance with Section 689.15, Florida Statutes (1979). Hyman v. Hyman, 310 So.2d 378 (Fla. 2d DCA 1975).

Reversed and remanded.


author: SCHWARTZ, Judge.

text:
    Abraham DeJESUS, Individually, and as Father and Next Friend of Maria DeJesus and Ruth DeJesus, minors, Appellants, v. JEFFERSON STORES, INC., a Foreign Corporation; and Carrie Cochran, jointly and severally, Appellees.
    No. 79-1692.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Ellis Rubin, Miami, and Charles H. Sinclair and Ben Goldberg, for appellants.
    Fuller & Feingold and Lawrence A. Fuller, Miami Beach, for appellees.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   SCHWARTZ, Judge.

While shopping at a Jefferson’s store, the minor plaintiffs were deliberately attacked and severely injured by an on-duty employee. We affirm the summary judgment entered below for the employer, Jefferson Stores, Inc., because the record conclusively shows both that (1) the assaults were undertaken for reasons which were purely personal to the employee and were neither activated by a purpose to serve the master nor related in any way to the furtherance of Jefferson’s business; see Friedman v. Mutual Broadcasting System, Inc., 380 So.2d 1313 (Fla. 3d DCA 1980) and cases cited; and (2) Jefferson had no notice of any violent propensities of the employee and therefore could not be held liable under the alternative “negligent hiring” doctrine. Friedman v. Mutual Broadcasting System, Inc., supra; compare Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Affirmed.


author: BASKIN, Judge.

text:
    Rosalie J. WALFISH, Appellant, v. Richard WALFISH, Appellee.
    No. 79-1836.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.

      Engel, Aronson, Fried & Cohn, Miami, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

This appeal challenges the decision of the trial court which changed custody of the two minor children of the parties from the mother to the father. We find the record does not support the change of custody as a matter of law and reverse.

When the marriage of the parties was dissolved in 1973, the mother was awarded custody of their two daughters. Six years later, the father filed a petition for change of custody of the two children then aged eight and ten.

During the evidentiary hearing on the petition for change of custody, the father presented the testimony of a psychologist who had examined the children and interviewed the parents. This psychologist testified that the children had expressed a desire to live with their father, but the doctor specifically stated that the mother had committed no overt act which would render her unfit. Unfortunately, the psychiatrist who had been treating the children was not available to testify at the evidentiary hearing.

Both parents presented testimony of neighbors and relatives. Those persons testifying on behalf of the father averred that, on occasion, the mother’s home had been dirty and that the children had been unkempt. They also testified that the father was a good parent and took good care of the children when they visited him. Friends and family of the mother, on the other hand, testified that she was a good and concerned parent.

As a prerequisite to a change in custody, petitioner must prove a substantial change in circumstances.

[A] decree may not be substantially amended or changed thereafter, except upon a showing of materially altered conditions arising subsequent to the entry of the decree or of material facts bearing on the question of custody which were in existence at the time of the decree but were unknown to the court on the date of its entry. And even in such cases a substantial amendment or change in the decree should not be made except for the welfare of the child.

Sayward v. Sayward, 43 So.2d 865, 868 (Fla.1949). The trial court does not have the same degree of discretion to modify custody as it does to enter an original , decree. Jacobs v. Ross, 304 So.2d 542 (Fla. 3d DCA 1974); Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967).

The testimony presented to the trial court disclosed that the father was a fit parent, but it failed to show that the mother was unfit or to establish that a change, of custody was required to further the best interests of the children. The trial court, therefore, abused its discretion in ordering the change of custody. Robinson v. Robinson, 333 So.2d 526 (Fla. 2d DCA 1976); Hutchins v. Hutchins, 220 So.2d 438 (Fla. 2d DCA 1969); and Nixon v. Nixon, 209 So.2d 878 (Fla. 3d DCA 1968).

The order of the trial court is reversed and the cause is remanded for further proceedings in accordance with this decision.

      . The trial judge also considered comments made to him by the children during an off-the-record interview he conducted outside the presence of the parties or their attorneys. The judge refused to disclose what transpired during those proceedings and declined to give counsel the opportunity to rebut any matters presented during the interview or to cross-examine the children. The wishes of the child may properly be considered by the trial court in making a determination of custody, In re Gregory, 313 So.2d 735 (Fla.1975); Nixon v. Nixon, supra, and the wisdom of interviewing the children outside the presence of the parents is obvious. We must question, however, the propriety of failing to make the substance of the interview a part of the record if for no other reason than to preserve the matter for appeal; but, in light of the disposition of the case, we do not reach the merit of this point on appeal.


author: COBB, Judge.

text:
    Agnes TRUITT, etc., Appellant, v. Andrew J. TRUITT, etc., Appellee.
    No. 79-937/T4-521.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Patrick A. Raley of Felder & Berman, Winter Park, for appellant.
    Julius G. Petruska, Orlando, for appellee.
   COBB, Judge.

The facts herein are relatively simple, but the legal issue involves the troublesome distinction between intrinsic and extrinsic-fraud. Agnes and Andrew Truitt obtained a judgment of dissolution of their marriage on October 1, 1976. The dissolution was based upon a stipulation whereby the husband transferred his interest in certain realty to the wife, and she relinquished any claim to alimony and dismissed with prejudice her counterclaim in the dissolution action based on a promissory note for $19,-820.88. The husband had'testified by way of deposition in that proceeding that the signature on the note was not his.

On October 26,1978, more than two years after dissolution, Agnes sued Andrew on the note. She attempted to avoid his affirmative defense of res judicata by alleging in a reply that fraud had been perpetrated upon the dissolution court by the husband by reason of his perjured testimony wherein he denied execution of the promissory note, which had induced her to dismiss her counterclaim. At pre-trial conference, the trial court sua sponte dismissed the action with prejudice on the basis that the pleadings before the court conclusively established the alleged defense of res judi-cata.

Agnes Truitt appeals this dismissal and contends that the voluntary dismissal of her counterclaim in 1976 was induced by fraud — the perjured deposition testimony of Andrew Truitt. Since more than one year had elapsed, she did not file a motion with the dissolution court pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. That rule provides, however, that it does not limit the power of a court to entertain an independent action to relieve a party from a judgment or order for fraud upon the court.

In Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514 (1946), it was observed by the Florida Supreme Court that perjury does not constitute extrinsic fraud, and that the universal rule in regard to collateral attacks on judgments based on fraud applies to extrinsic rather than intrinsic fraud; otherwise, litigation would be interminable. Illustrations of extrinsic fraud are given in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878): prevention of an unsuccessful party from presenting his case, by deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit, etc.

In August v. August, 350 So.2d 794 (Fla. 3d DCA 1977), it was held that a post-judgment motion to set aside a divorce judgment because of alleged misconduct by the husband (undue influence, duress, and fraudulent concealment of assets) was too late, since it was filed eighteen months after judgment, and that even an independent action would have been unavailing because the allegations did not constitute the type of fraud upon the court (i. e., extrinsic) contemplated by the exception in Rule 1.540(b) to the one-year limitation, citing Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973). In Alexander, the appellate court addressed the question of the types of fraud which may be addressed by an independent action even later than one year after judgment as contemplated by Rule 1.540:

“Fraud on the court” is a somewhat elusive concept. See 7 J. Moore Federal Practice, 1972, ¶¶ 60.33, 60.36, 60.37, and Toscano v. C.I.R., 9 Cir. 1971, 441 F.2d 930, 933. If it is given a broad application so as to comprehend any type of misrepresentation by a witness or party which induced an incorrect factual determination by the trier of fact, judgments would be subject to frequent attack by independent actions, and the time for such attacks would be limited only by laches. The policy of the law which favors the termination of litigation suggests that such a broad application of the concept is unwarranted. So too does the policy of Rule 1.540(b), RCP, which promotes non-appellate attacks on a final judgment by motion in the original action — not by independent actions.
Without attempting a comprehensive definition of “fraud on the court” it is our view that the facts alleged in the counterclaim do not qualify as such. In addition to the policy considerations mentioned above, these other factors move us to this conclusion: (a) the counterclaim does not allege a misrepresentation which misled the court (in the original action) as to its jurisdiction over the person of the defendant, the identification of the defendant, or the subject matter; and (b) neither does the counterclaim allege a misrepresentation which prevented the appellants from effectively presenting a defense in the original action based on the same facts they now desire to set before the court via the independent action. The “fraud” to which the counterclaim speaks is in our view the type of fraud contemplated by subsection “(3)” of Rule 1.540(b), RCP, and should have been brought to the attention of the court by a motion filed in the original action — not by an independent action.

See also, Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976).

The reason for the rule precluding collateral attacks based on intrinsic fraud is that if a judgment is obtained on false testimony or on a false instrument, the parties are heard, the evidence is submitted to and receives the consideration of the court, and the matter has been actually tried or could have been tried, and the parties are estopped to set up the intrinsic or direct fraud and cannot contradict the judgment. Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916). In the instant case, Agnes Truitt knew' that Andrew Truitt denied signing the promissory note upon which she filed her counterclaim in the dissolution action, and she could have litigated the genuineness of that signature and the enforceability of that note in the prior action. Instead, she settled and dismissed it. Accordingly, the dismissal of the instant case by the trial court was correct under the rule, and is AFFIRMED.

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


author: ORFINGER, Judge.

text:
    In the Interest of DB, TB, AB, Minor Children. Betty BRYAN, Appellant, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 80-71.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Judith A. Ginn, Orlando, for appellant.
    Donald A. Lykkebak and Douglas E. Whitney, Dist. Counsel, Orlando, for appel-lee.
   ON MOTION TO DISMISS APPEAL

ORFINGER, Judge.

A final order of permanent commitment for subsequent adoption was entered November 9, 1979. The appellant/mother thereupon filed a “Motion for New Trial or to Vacate Judgment” which was heard by the trial court on November 28, 1979, and denied by written order entered December 13, 1979. The notice of appeal was filed January 11, 1980. Appellee moves to dismiss the appeal on the ground that the post-judgment motion filed by the mother is a nullity, thereby resulting in the notice of appeal being untimely. If the post-judgment motion is an authorized motion, Rule 9.020(g), Florida Rules of Appellate Procedure, the notice of appeal is timely, otherwise it is not and the court lacks jurisdiction.

The statutory procedure for permanent commitment for subsequent adoption is found in section 39.41(4), Florida Statutes (Supp.1978). We find no answer to our problem in the statutes. The Rules of Juvenile Procedure govern procedures in the circuit court in the exercise of its jurisdiction over children. These rules are to be construed to secure simplicity in procedure and fairness in administration. Rule 8.010, Fla.R.Juv.P. Pursuing this mandate, in reviewing these rules, we find no provision for filing a “Motion for New Trial.” Rule 8.230 provides for a motion to vacate judgment, but it specifically does not apply to permanent commitment cases. Similarly, Rule 8.240 provides for relief from judgments or orders, and except for correction of clerical errors, it likewise specifically excludes from its scope permanent commitment cases. We find no other mention of a “Motion for New Trial” except in Rule 8.180(d), which deals with speedy trial and which is not otherwise pertinent here, except that it recognizes the existence of a “Motion for New Trial” as something distinct from a motion to vacate judgment.

Since the juvenile rules do not otherwise mention a motion for new trial, and since Rule 8.180 at least recognizes its existence, some other rule or procedure must breathe life into it, and we turn to the Rules of Civil Procedure for assistance. Rule 1.010, Florida Rules of Civil Procedure, applies those rules to all suits of a civil nature and all special statutory procedures in the circuit courts except those to which probate and guardianship rules or summary claims rules apply. Obviously, neither the probate rules nor the summary claims rules apply to the case sub judiee. Although not specifically stated in the civil rules, we recognize that the juvenile rules would apply in any matter specifically addressed therein which might conflict with the civil rules, but where as here, the juvenile rules do not apply, we think the civil rules take over. Rule 1.530, Florida Rules of Civil Procedure, specifically provides for motions for new trial, so the reference to this form of motion in the juvenile rules can only have reference to the motion as authorized in the civil rules.

Finding as we do that the motion for new trial sub judiee was authorized, the motion to dismiss the appeal is

DENIED.

CROSS and COBB, JJ., concur.

      . Rule 8.180(d), “Effect of Mistrial; Order of New Trial. A person who is to be tried again shall be brought to trial within ninety (90) days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court, granting a new trial, the date of an order by the trial court granting a motion to vacate a judgment, . . . ” (Emphasis supplied).


text:
    C. Conrad MERSHON, Jr., Appellant, v. BUCKLES-THOMPSON, INC., a Florida Corporation, Appellee.
    No. OO-425/T1-140.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Jeffrey C. Fulford of Adams & Hill, Orlando, for appellant.
    John D. Mussoline of Clark & Mussoline, Palatka, for appellee.
   PER CURIAM.

The complaint in this case alleges performance of an oral contract for land clearing and a balance due under the contract. Although the complaint alleges that a claim of lien had been filed, there is no request to foreclose that claim of lien. Even if interpreted as a foreclosure of a mechanic’s lien, the proof at time of trial only sustains a suit for damages on an oral contract. There is no evidence as to notice to owner or to show that it qualifies under the “subdivision exception” as set forth in American Fire and Casualty Co. v. Davis Water and Waste, 377 So.2d 164 (Fla.1979).

In order to be awarded attorney’s fees, the suit must be on a foreclosure of mechanic’s, workman’s or materialman’s lien, Nelson’s Inc. v. Halifax Construction Company, 305 So.2d 840 (Fla.3d DCA 1974). A suit on an oral contract does not sustain an award of attorney’s fees. There is sufficient evidence to sustain the judgment on the oral contract but not for foreclosure of a mechanic’s lien. Therefore the judgment as to the amount of damages is affirmed. The judgment as to the award of attorney’s fees is reversed.

CROSS and SHARP, JJ., and BROWN-LEE, JACKSON O., Associate Judge, concur.

      . Section 713.04, Fla.Stat. (1979).


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

text:
    William M. GROOVER, Appellant, v. Hazel GROOVER, Appellee.
    No. 78-2207/T4-244.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.

      Lee S. Damsker, Tampa, for appellant.
    Jon S. Rosenberg, Orlando, for appellee.
   PER CURIAM.

The issue in this case is whether the trial court erred in dismissing the complaint of appellant, a collateral attack on a divorce judgment entered in 1971, pursuant to Rule 1.540(b), Florida Rules of Civil Procedure.

The facts are simple: William Groover married Hazel in 1955 in Indiana. She was previously married to a man named Cox and had never been divorced from him. After some sixteen' years of marriage, Hazel Groover filed for divorce against William in Florida in 1971 on the- sole ground of cruelty; the answer admitted the marriage. The divorce was granted to the wife on the basis of the alleged cruelty. After non-payment of alimony and enforcement proceedings against him, William Groover filed an independent action in 1977 seeking to invalidate the divorce judgment, hence the alimony order, on the ground that the 1955 marriage was bigamous and void ab initio and, therefore, Hazel had committed a fraud upon the court in obtaining the judgment in 1971.

Testimony was presented in the cause. There was conflicting evidence as to whether William knew that his marriage to Hazel was bigamous at the time of its dissolution in 1971. The trial court entered an order with the following finding:

[T]he Husband could, and should, have litigated the question sought to be raised now by collateral attack.
The Court has heard testimony as to whether the husband knew, or should have known, that the wife had not been divorced from the previous husband, but does not here decide that issue. [Emphasis added.]

The above paragraphs are logically irreconcilable. Unless the trial court found actual or constructive knowledge by the husband of the bigamy, how could it be said that he should have litigated that question?

The trial court then dismissed the complaint with prejudice pursuant to Rule 1.420(b), Florida Rules of Civil Procedure, apparently on the authority of Alexander v. First Nat'l. Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973). The trial court found that such fraud or misrepresentation as may have been chargeable to Hazel Gro-over was merely a factual misrepresentation that did not relate to jurisdiction of the court and, therefore, was the type of fraud contemplated by subsection (3) of Rule 1.540(b), Florida Rules of Civil Procedure and which should have been raised by motion in the original action within one year after the judgment, rather than the type contemplated by subsection (4) of that rule referring to a judgment that is void.

This is clearly erroneous. A marriage that is bigamous is void and cannot support an award of alimony when the putative wife is the wrongdoer or equally responsible with the husband in creating the situation. Burger v. Burger, 166 So.2d 433 (Fla.1964). To render a valid judgment of divorce that would support an alimony award, as opposed to a declaratory “divorce judgment” based on bigamy (which is equivalent to an annulment), the trial court must have jurisdiction of a valid marriage. See Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 294 (1929) and Young v. Young, 97 So.2d 470 (Fla.1957). Before subject matter jurisdiction can be exercised, it must be lawfully invoked. Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743 (1947). To represent to a circuit court that a marriage is valid as opposed to void is not a misrepresentation inducing merely “an incorrect factual determination by the trier of fact,” as is discussed in Alexander, supra, and upon which the trial court relied for its dismissal of this action. Cf., Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976). Moreover, a bigamous marriage may be attacked at any time. In re Estate of Kant, 272 So.2d 153 (Fla.1972); Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932).

The record indicates that Hazel knowingly entered into a bigamous marriage with William; that marriage was void ab initio and cannot support an award of alimony. As there was no valid marriage, there could be no divorce in the customary fashion; the only ground for a declaratory “divorce judgment” available to the parties was bigamy which was not alleged. Thus, the court never acquired jurisdiction over the subject matter and its final judgment of divorce is void. The misrepresentation chargeable to Hazel was not merely factual but was jurisdictional and it was the type of “fraud on the court” for which relief should have been granted pursuant to Rule 1.540(b). Appellee’s contention that any irregularities in the proceedings were, or should have been, litigated is without merit; parties cannot, even by consent, confer subject matter jurisdiction upon the court. Hadley v. Hadley, 140 So.2d 326 (Fla. 3d DCA 1962).

The court therefore erred in dismissing the husband’s action to vacate the final judgment of divorce and the cause is remanded with directions to reinstate the complaint for a full hearing on all the issues.

During the trial, the Groovers stipulated to a property settlement and child custody agreement which was incorporated into the final judgment of divorce. Under the terms of the judgment, Hazel was awarded permanent custody of the children, child support and alimony which would cease upon her remarriage. Hazel was required to convey jointly owned property to William. The record does not indicate whether William agreed to the alimony payments, or merely agreed to a division of their jointly owned property, or whether Hazel accepted the alimony payments as consideration for relinquishment of her interest in the joint property. Had William agreed to make the payments as part of the consideration for acquisition of Hazel’s property interests, then he would be bound by his stipulation. Generally, a stipulation properly entered into by parties and relating to a matter appropriate to stipulation will be binding upon the parties. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Welch v. Gary Moss Bondholders Corp., 128 Fla. 722, 175 So. 529 (1937). Here, the child custody and the property settlement were appropriate matters for stipulation in an original proceeding, a portion of which was valid as the court has inherent jurisdiction to control and protect infants and their property. Cone v. Cone, 62 So.2d 907 (Fla.1953). To avoid the consequences of the stipulation, a party must show that the agreement was obtained by fraud, misrepresentations or. mistake of fact. Esch v. Foster, 123 Fla. 905, 168 So. 229 (1936); Curr v. Helene Transportation Corp., 287 So.2d 695 (Fla. 3d DCA 1973).

Appellant has asked not only for relief from the judgment but also a return of the alimony payments already made. Whether he should be reimbursed or even relieved of the obligation to make future “alimony” payments will depend on several factors, including:

1. Whether he knowingly participated in the “fraud on the court” by failing to challenge the validity of the marriage in the original suit;
2. Whether his promise to pay “alimony” was a part of the consideration for Mrs. Groover’s conveyance of her interest in the jointly owned property:
3. How long he waited to reveal the fraud after learning of his wife’s omission.

If Appellant fails to demonstrate good cause for avoiding the consequence of his stipulation in its entirety, he should be bound by its provisions.

The order of dismissal is REVERSED and this cause is REMANDED for a new trial consistent with this opinion.

COBB and UPCHURCH, JJ., concur.

MILLER, ROBERT P., Associate Judge, dissents with opinion.

MILLER, ROBERT P., Associate Judge,

dissenting:

The majority opinion states that since there was no valid marriage there could be no divorce (in the customary fashion), and therefore the Court never acquired jurisdiction over the subject matter and its Final Judgment of Divorce is void. Such reasoning is fundamentally wrong. Subject matter jurisdiction depends upon the allegations in the complaint irregardless whether or not such allegations are true or false. Subject matter jurisdiction is the power of the Court to determine whether or not such allegations are true or false.- Rule 1.540(b)(3), Florida Rules of Civil Procedure, provides that a party may be relieved of such determination if the same was procured by fraud so long as the motion for such relief is filed within one year. Apparently grounds for such relief existed in this case but no motion was filed. The one year period has passed and the determination of the truth or falsity of such allegation is now final.

I believe the better view is that expressed by the trial judge who stated:

“The Plaintiff-Husband is barred from maintaining this independent action unless he comes within the exception set forth in FRCivP 1.540(b), to-wit ‘.
This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.’ (emphasis supplied).
“What, then, is ‘fraud upon the court’, and do the facts of this case come within the definition?
“Alexander v. First National Bank of Titusville, 275 So.2d 272 (4th DCA 1973) is both instructional and authoritative. Speaking for the Court, Judge Reed, at page 274, stated:
‘ “Fraud on the court” is a somewhat elusive concept. See 7 J. Moore Federal Practice, 1972 ¶¶ 60.33, 60.36, 60.37, and Toscano v. C.I.R., 9 Cir. 1971, 441 F.2d 930, 933. If it is given a broad application so as to comprehend any type of misrepresentation by a witness or party which induced an incorrect factual determination by the trier of fact, judgments would be subject to frequent attack by independent actions, and the time for such attacks would be limited only by laches. The policy of the law which favors the termination of litigation suggests that such a broad application of the concept is unwarranted. So too does the policy of Rule 1.540(b), RCP, which promotes non-appellate attacks on a final judgment by motion in the original action — not by independent actions.
‘Without attempting a comprehensive definition of “fraud on the court” it is our view that the facts alleged in the counterclaim do not qualify as such. In addition to the policy considerations mentioned above, these other factors move us to this conclusion: (a) the counterclaim does not allege a misrepresentation which misled the court (in the original action) as to its jurisdiction over the person of- the defendant, the identification of the defendant, or the subject matter; and (b) neither does the counterclaim allege a misrepresentation which prevented the appellants from effectively presenting a defense in the original action based on the same facts they now desire to set before the court via the independent action. The “fraud” to which the counterclaim speaks is in our view the type of fraud contemplated by subsection “(3)” of Rule 1.540(b), RCP, and should have been brought to the attention of the court by a motion filed in the original action — not by an independent action.’
“Applying the definition and decision in Alexander, supra, to this case, the Court finds and holds that the ‘fraud’ herein complained of by the petitioner-husband is the type of fraud contemplated by subsection (3) of FlaRCivP 1.540, and therefore, Motion for relief therefrom must have been brought in the original action and brought within one (1) year ‘. after the judgment . . . was entered’.
“The distinction between intrinsic and extrinsic fraud has been eliminated for purpose of seeking relief from a judgment under FRCivP 1.540(b), but was not always the case. Previously, an independent action could be brought to set aside a decree or judgment when the grounds therefore constituted ‘extrinsic fraud’; not so if the ground alleged constituted ‘intrinsic fraud’. In Macfadden and [v.] Muckerman, 116 So.2d 448 (Fla.1959), an independent action was brought to have a divorce decree set aside which had been entered some thirteen years previously, alleging as ground therefore that the Plaintiff in the prior divorce action has “. . . falsely and fraudulently claimed to be a legal resident of the State of Florida when in fact, he was a mere sojourner or visitor to this state, and that by such false and fraudulent representation, had induced a court of the State of Florida to grant him a divorce.” In affirming the lower court’s dismissal, the Supreme Court stated, at page 449:
‘. . .In the case at bar, the appellant seeks to collaterally attack the decree some thirteen years after its rendition upon grounds which constitute intrinsic rather than extrinsic fraud. The rule is and has been that those issues that could or have been litigated in the proceedings themselves are not sufficient grounds to collaterally attack a decree which otherwise appears to be valid on its face. See Matsis v. Matsis, 155 Fla. 786, 21 So.2d 545; Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514; Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872. As opposed to intrinsic fraud, the bill of complaint does not, in our opinion, allege facts which would constitute extrinsic fraud such as the deceased husband’s fraudulently keeping the appellant from defending the action, keeping her in ignorance of the proceedings, or other misconduct that would deprive the wife of an opportunity to have defended the action. See 19 Fla.Jur., Judgments and Decrees, § 431.’
“As applied to the case sub judice, the actions of the wife did not fraudulently (1) keep the Husband from defending the action, (2) keep him in ignorance of the proceeding, nor was she guilty of other misconduct that deprived him of the opportunity to defend the divorce action.
“In the instant case, the trial court had jurisdiction of the parties and of the subject matter; the Husband could, and should, have litigated the question sought to be raised now by collateral attack. “The Court has heard testimony as to whether the husband knew, or should have known, that the Wife had not been divorced from the previous husband, but does noi here decide that issue.
“The ‘Complaint to Vacate Final Judgment’ filed in Civil Action 77-7965, is DISMISSED WITH PREJUDICE pursuant to FRCivP 1.420(b).”

I would affirm.


text:
    John C. FLAKE et al., Appellants, v. STATE of Florida, DEPARTMENT OF AGRICULTURE, etc., Appellees.
    No. 78-2054/T4-216.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.

      Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellants.
    Frank A. Graham, Jr., of Florida Dept, of Agriculture & Consumer Services, Tallahassee, for appellees.
   ORFINGER, Judge.

Alleging that a quarantine imposed by appellee on appellant’s citrus nursery amounted to a confiscation without due process of law and without proper payment or compensation, appellant filed a complaint for a declaration of inverse condemnation and for an award of damages.

The factual background and the trial court’s findings and conclusions are set out in its final judgment which we set forth in full:

This action was tried before the Court. On the evidence presented the Court finds and orders as follows:
FINDINGS OF FACT
1. Plaintiffs are and have been for many years, owners and operators of citrus groves in Brevard County, Florida. On one of these groves is located a nursery of some six thousand grapefruit trees, which is the subject matter of this suit.
2. Defendant is an agency of the State of Florida, and through its Division of Plant Industry, is charged with the enforcement of Chapter 581, Florida Statutes, governing nurseries and the movement of nursery stock therein as may be necessary in the eradication, control or prevention of the dissemination of plant pests.
3. In the early spring of 1971 plaintiff, John C. Flake, together with some associates, chartered an aircraft in Florida and flew to Texas for the purpose of bringing in thirty-four (34) Star Ruby grapefruit trees from a nursery located in that state. The Star Ruby was a variety which had not previously been introduced into the State. of Florida and had not been subject to the biological indexing process to determine it disease-free or virus-free, by either the responsible authorities in Texas or in Florida.
4. Flake caused the thirty-four (34) Star Ruby trees to be planted in a grove area owned by plaintiffs and established their nursery with budwood from the thirty-four trees they brought in from Texas.
5. Plaintiffs’ nursery site was not approved by the Division of Plant Industry, as is required by its Rule 5B-11.06, Florida Administrative Code, prior to planting, nor were any of the nursery trees treated in accordance with the requirements of that rule prior to being planted on property other than the property where grown.
6. Prior to plaintiffs’ importation of their Star Ruby grapefruit trees, defendant had also secured a supply of the new variety for the purpose of determining whether or not it was disease-free or subject to any virus type disease. This indexing process for the new variety was estimated to take between two and three years whereupon the variety would be released to citrus nurserymen throughout the state through the organized citrus budwood registration program. Sometime during their indexing process and their investigation of the adaptibility of the new variety to Florida, defendant determined from the developers of the strain in Texas that Star Ruby was unusually susceptible to “foot rot”, a serious disease of citrus which is widespread in Florida. Also it was determined that one of the subpropagations of the parent tree in Texas had developed citrus ringspot virus — necrotic strain (a disease not described until 1973). Defendant’s investigation further revealed that there was little knowledge as to the cause of the spread of this virus disease. A similar ringspot disease had been found in a few Florida trees but there was no evidence that natural spread of the Florida disease isolates had taken place.
7. Plaintiffs at' no time notified defendant of their, by then, extensive plantings of Star Ruby grapefruit trees. Rather, in answer to direct questions by defendant’s agents as to whether or not they possessed any of the new variety, plaintiffs were “evasive” in their answers.
8. When defendant’s agents, by their own activities, discovered the existence of plaintiffs’ Star Ruby material, it immediately established a quarantine prohibiting distribution of plaintiffs’ Star Ruby material. The estimated time of the quarantine was approximately two years — the time necessary for defendant to complete its indexing program.
9. Notice of defendant’s agency action in establishing the quarantine was given plaintiffs on April 11, 1975. At no time after the issuance of this notice did plaintiffs challenge the action of the agency by either a request for a hearing pursuant to Section 120.57, the Administrative Procedure Act, nor seek judicial review as provided by Section 120.68, methods provided by statute for challenging the validity of agency action.
10. Because of persistent rumors of other Star Ruby plantings within the state, the defendant, in August of 1975, pursuant to Section 120.62 of the Administrative Procedure Act, instituted an agency investigation determining the extent to which Star Ruby, plantings existed within the state. Following that hearing, defendant issued an order requiring the destruction of all Star Ruby holdings within the state. Plaintiffs and others challenged the validity of the destruction order in the circuit court of this circuit in case number C.A. 75-3746, State of Florida, Department of Agriculture and Consumer Services v. John C. Flake, which case is before the court by stipulation to be considered under the doctrine of judicial notice. The decision in that case struck' down the order requiring the destruction of Star Ruby material, but did not rule on the validity of the quarantine previously established by the defendant.
11. The defendant’s notice of quarantine prohibited plaintiffs from transplanting their nursery stock to any of their noncontiguous property. However, pursuant to a conference between plaintiffs and defendant, plaintiffs were authorized on April 6, 1976, to transplant their nursery stock to noncontiguous groves, if done under the supervision of defendant’s agents. Plaintiffs thereafter transplanted approximately 1,500 of their trees, pursuant to the agreement. On June 10, 1976, this agreement was terminated by defendant on discovery that one of plaintiffs’ Star Ruby trees was infected with citrus ringspot virus — necrotic strain. It was later determined that budwood from this infected tree was budded onto trees in Dunn’s Nursery, causing a spread of the infection necessitating the destruction of those infected trees and certain healthy trees immediately surrounding them. Dunn’s Nursery is in Orange County, Florida.
12. While defendant, by its quarantine, essentially prohibited plaintiffs’ “distribution” of their nursery stock, as defined by Section 581.011(10), there was no.evidence of trespass or physical invasion by defendant, or appropriation of plaintiffs’ property for public use.
13. The quarantine of plaintiffs’ property was lifted in April of 1977 by the execution of a “compliance agreement” voluntarily signed by plaintiffs. By this time, plaintiffs’ nursery trees had grown larger than the optimum size for transplanting. While the evidence showed that the expense of transplanting would be more for the larger trees, the nursery stock could still be transplanted and were not economically worthless.
CONCLUSIONS OF LAW
14. It has long been held that the citrus industry is of such vital import to the welfare and economy of this state that police power measures may be taken to safeguard the industry. (State of Florida, Department of Citrus v. Griffin, 239 So.2d 577, 578). [Fla.1970]
15. Defendant, through its agency head, the Commissioner of Agriculture, has “. . . supervision of matters pertaining to agriculture except as otherwise provided by law . . .” (Emphasis supplied), [sic]
16. Notice of the quarantine, prior to its issuance, was not required, since plaintiffs were afforded remedies under the Administrative Procedure Act by either (a) requesting a hearing under § 120.57 of a proceeding in which their substantial interests were determined, or (b) immediate judicial review of final agency action in the district court of appeal pursuant to § 120.68, Florida Statutes.
17. Generally the decision of an administrative body within the realm of its authority will be sustained unless fraud or an abuse of discretion is clearly shown (Northcutt v. State Road Department, 209 So.2d 710, 713). [Fla. 3d DCA, 1968]
18. Action of defendant in establishing a quarantine of plaintiffs’ nursery did not destroy the property or appropriate it to public use but placed restrictions on its use by the owner. The agency action in question then was in the exercise of police power of the sovereign state and not in the exercise of power of eminent domain. (State Plant Board v. Smith, 110 So.2d 401, 405). [Fla.1959]
19.In enacting regulatory measures which protect but do not destroy property, the law need not restrict itself to conditions actually harmful but may require precautions within the whole range of possible danger (Corneal v. State Plant Board, 95 So.2d 1), [Fla.1957]. The establishment of the quarantine by defendant in this case was precautionary and not destructive in nature.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Complaint filed herein be and it is hereby dismissed with prejudice.

There is competent substantial evidence to support the findings and conclusions of the trial judge. In the light of the importance of the citrus industry to the state (State of Florida v. Griffen, 239 So.2d 577 (Fla.1970) and cases cited therein) we cannot say that the trial court abused its discretion in upholding a quarantine under the circumstances found here. In imposing the quarantine there was no attempt at destruction of trees suspected to be infected or of healthy trees, but only a requirement that the nursery stock not be moved to non-contiguous property while the state completed its examination of similar stock for suspected disease carrying potential.

State Plant Board v. Smith, 110 So.2d 401 (Fla.1959), does not apply here because the statute there under review gave the Plant Board the right to destroy both diseased and healthy trees without a prior hearing in the absence of any demonstrated imminent danger even as to the diseased trees. However, the Supreme Court recognized that:

It is well settled, however, that the concept of due process does not necessarily require the granting of a hearing prior to the taking of official action in the exercise of the police power. Where a com pelling public interest justifies the action, the Legislature may authorize summary action subject to later judicial review of the validity thereof. (Emphasis in original). Id., at 407, 408.

In enacting regulatory measures which protect but do not destroy property, the law need not restrict itself to conditions actually harmful but may require precautions within the whole range of possible dangers, Corneal v. State Plant Board, 95 So.2d 1 (Fla.1957), and the trial court properly found the action here to be precautionary and not destructive in nature.

AFFIRMED.

CROSS and SHARP, JJ., concur.


author: BOARDMAN, Judge.

text:
    James Henry McRAE, Appellant, v. STATE of Florida, Appellee.
    No. 79-321.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.

      Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

James Henry McRae appeals eleven convictions and sentences arising out of a single amended information. We hold that under the circumstances the trial court’s admission of certain hearsay testimony over timely objection leaves us no alternative but to reverse for new trial.

Four separate incidents are involved here. The victim, a sixty-three-year old widow, has been in America since 1960. She is Italian and speaks little English, and her testimony was elicited through an interpreter. She testified to the following events:

On June 12, 1978, at 2:30 a. m., a black man forced his way into her home, raped her, and took money while threatening her with a pen knife. She had never seen him before. He found a loaded gun in the bedroom, threatened to shoot her, ate some food, and raped her again. He then pulled the telephone wire out of the wall, took the gun and a few dollars, and left. When the man left, the victim, with the aid of an English-Italian dictionary, wrote a note to her landlord, mistakenly dated June 10, and delivered it the next morning to his office. However, she did not try to notify the police or anyone else of what had occurred.

On June 20, 1978, at about 3:00 a. m., the same man returned and ordered her to open the door, threatening to break the window if she did not let him in. When she opened the door, he pushed her into the bedroom, raped her, asked for $500, and wrote a note demanding that sum. He then left.

The victim went to her bank at about 10:00 that same morning to secure the money. Upon repeated inquiry from Marion Riley, a bank employee, the victim told her what had happened. Riley refused to give her that much cash and called the police. The police arrived, questioned her, took her to the hospital for examination, and returned her to her home.

The man returned a third time in the middle of the night of June 21, 1978, and banged on the door; she opened it because she knew he would break in again. He did not inquire about the $500, but pushed her into the bedroom again and raped her. She submitted out of fear. The man warned her not to tell anyone or call the police. He ate breakfast and fell asleep at the kitchen table. She awoke him one hour later, and he left at about 7:00 a. m. She then notified the police.

On June 26, 1978, at 7:00 p. m., the same man returned. She let him in, and he watched television until 11:00 p. m. On this occasion, the assailant did not demand sex or money. The police, who had been keeping an eye on the residence, arrived at 11:00 p. m. The victim acted excited and indicated with her eyes that the man in the house with her was the one who had been there before. The victim identified appellant as her assailant at trial. She testified that he had a rough beard on the first occasion and was missing the index finger on his right hand.

The landlord’s secretary recalled receiving a note from the victim, but she did not understand its contents. No action was taken on the note. The note itself was admitted into evidence, but we think it fair to say that the note is utterly incomprehensible.

Marion Riley, an assistant vice president of the bank, testified that she had known the victim as a bank customer for five or six years. On June 20, the victim came in and asked to withdraw $500 in cash. She appeared extremely upset. Over appellant’s timely objection, Riley was permitted to testify that the victim said that “the man at the apartment” wanted money, he was coming back, and she had to give him the money. Riley also noted the beginning of a bruise on the victim’s cheekbone. After an hour or more, Riley was able to persuade the victim to allow her to call the police. They arrived and questioned the victim, using Andree Hoylman, another bank employee, as a translator.

Hoylman also testified. Appellant objected to this witness’ being permitted to relate the substance of the conversation on the ground that such testimony would be hearsay. The trial court ruled that the victim’s statements to Hoylman concerning the events of June 20 were admissible as part of the res gestae, but that the June 12 events were not to be gone into in detail. Hoylman testified that the.victim told him that a man had come to her house the night before, sexually abused her, and told her that he wanted $500. She said that the man had been to her apartment a few days earlier and had raped her twice, fixed himself some food, ripped her telephone off the wall, stole things from her apartment, and told her not to call the police. She said she was afraid to call the police because the man had told her not to. Hoylman also noticed bruises and red marks on the victim’s arms and neck.

Detective John Gaunt identified ' appellant as the man he found in the victim’s apartment on June 26. Gaunt’s first contact with the victim was on June 20. On that occasion, she described her assailant as missing his right index finger. Gaunt showed her a photopak, and she selected the photograph of one Pierce Ivory as that of her assailant. Gaunt arrested Ivory that same day. Gaunt went to see the victim on June 22, and she told him through Officer Piacenti, who speaks Italian, that her assailant had returned to her house the previous night. .Ivory was therefore released from custody. The detective then initiated a stake-out of the victim’s residence. On June 26, he went to the victim’s residence and noticed that she was acting unusual and excited. Appellant was in the house with her. Because the detective could not understand the victim, he telephoned Pia-centi, who spoke with the victim by telephone. Piacenti then informed Gaunt that-she had said that appellant was the man who had been terrorizing her.

Piacenti also testified at trial. He testified that Gaunt telephoned him on June 26 and asked him to talk to the victim. He did so, and the victim said that the man in her house was the same man who had been there before and that she was positive of this. There was no objection to this testimony. The only objection was to Piacenti’s attempt to relate what Gaunt had told him prior to putting the victim on the line, and Piacenti was instructed not to repeat what Gaunt had told him.

Appellant was arrested and subsequently gave a statement to Gaunt. He said that he had met the victim on the street and had been at her house only once before, on or about June 11, to talk, drink wine, and watch television. He denied having sexual intercourse with her and stated that he had been in the service in Italy and could speak Italian.

Appellant’s major point on this appeal is that the testimony of Riley, Hoylman, and Piacenti concerning what the victim told them was hearsay and that the trial court therefore erred in admitting it.

While we agree that Piacenti’s testimony was hearsay, any error in admitting it may not be reviewed on appeal in the absence of timely objection below. Tyler v. Triesback, 69 Fla. 595, 69 So. 49 (1915); G. W. B. v. State, 340 So.2d 969 (Fla.1st DCA), cert. denied, 348 So.2d 948 (Fla.1977).

Timely objections were made to the challenged testimony of Riley and Hoyl-man, however, and the trial court erred in overruling these objections. A witness’ testimony may not be corroborated by his own prior consistent statement. Van Gallon v. State, 50 So.2d 882 (Fla.1951); Lamb v. State, 357 So.2d 437 (Fla.2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla.2d DCA 1977); Roti v. State, 334 So.2d 146 (Fla.2d DCA 1976).

The state seeks to justify admission of the victim’s statements to Riley and Hoyl-man as part of the res gestae. We cannot agree. In Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948), the mother of a girl who was attacked and raped was permitted to testify as to what her daughter had told her about the attack only a few hours after the attack had occurred. This was held to be error.

In Lamb v. State, supra, the defendant’s girlfriend testified that while she and the defendant were alone together in her kitchen, the defendant grabbed her by the neck, placed a gun to her temple, and stated he was going to kill her. He did not harm her, however, and left immediately. She then called the police and described the events to the officer who came out in response to her call. The officer was allowed to testify at trial as to what the victim had told him. This court held that the victim’s statement to the officer was not admissible as part of the res gestae. “By the time the police arrived, the events of the crime had long occurred and terminated. Further in fact, Ms. Davis had time in which to reflect upon her statement.” Id. at 439.

Here, several hours had elapsed between the June 20 events and the victim’s statements to Riley and Hoylman, and eight days had elapsed between the June 12 events and the statements. We see no logical basis for distinguishing this case from Custer or Lamb. See also Annot., 89 A.L.R.3d 102 (1979). But see People v. Noble, 23 Mich.App. 100, 178 N.W.2d 118 (1970). We have found no authority for extending the res gestae doctrine to statements made days after the incident in question.

The admission of the challenged testimony cannot be considered harmless error. The state relied essentially on the testimony of the victim to establish appellant’s presence in her house on June 12, 20, and 21 and his guilt of all of the charged offenses. Thus, the victim’s credibility was crucial. Furthermore, the events she described are bizarre, to say the least, and the jury may well have relied heavily on the testimony of the two bank employees in assessing her credibility. Accordingly, we must reverse and remand for a new trial on all counts.

Inasmuch as appellant may be retried, we deem it appropriate to address the other two issues raised by appellant with regard to his sentences.

As aforementioned, appellant was charged with eleven offense's, all arising out of the four incidents detailed .above. We are here concerned with counts 1-3, 5-6, and 9-10. Counts 1-3 arose out of the events of June 12. Count 1 charged appellant with burglary of the victim’s dwelling during the course of which he “did make an assault upon the [victim], to-wit: [sic] involuntary sexual battery,” and “did arm himself within said dwelling with a dangerous weapon, to-wit: [sic] a firearm,” in violation of Section 810.02(2), Florida Statutes (1977). Counts 2 and 3 each charged appellant with sexual battery. Counts 5 and 6 arose out of the events of June 20. Count 5 charged appellant with burglary during the course of which he “did make an assault upon the [victim], to-wit: [sic] involuntary sexual battery,” while count 6 charged him with sexual battery. Counts 9 and 10 are the same as counts 6 and 5 respectively (count 9—sexual battery, count 10—burgla-ry) except that they are alleged to have occurred on June 21. Appellant was found guilty as charged of each of these offenses and given a separate sentence on each.

Appellant contends that it was a violation of double jeopardy for the trial court to enter judgment and sentence on counts 2 and 3 as well as on count 1, on count 6 as well as on count 5, and on count 9 as well as on count 10, relying on Pinder v. State, 366 So.2d 38 (Fla.2d DCA 1978), aff’d, 375 So.2d 836 (Fla.1979), and Ennis v. State, 364 So.2d 497 (Fla.2d DCA 1978). This is so, appellant argues, because each sexual battery (counts 2-3, 6, and 9) was pled and proved as an essential element of the burglary occurring on the same date (counts 1, 5, and 10 respectively).

We agree as to counts 6 and 9. Burglary may be a first, second, or third-degree felony, depending upon the allegata and probata. § 810.02, Fla.Stat. (1977). To convict a defendant of first-degree felony burglary, the state must plead and prove not only the essential elements of burglary as defined in Section 810.02(1), but also that, in the course of committing the burglary, the defendant either made an assault upon a person or was armed or armed himself within the structure with explosives or a dangerous weapon. In counts 5 and 10, the state charged, appellant with first-degree felony burglary by including in the charging language the allegation that, during the course of the burglary, appellant made an assault, to wit: sexual battery, upon the victim. In order to convict appellant of the charged offense, the state had to prove that appellant committed a sexual battery upon the victim. Thus, the finding that appellant committed a sexual battery was indispensable to both first-degree felony burglary convictions, and appellant could not be convicted of both the burglaries and the assaults (sexual battery) which served as the basis therefor. State v. Pinder, 375 So.2d 836 (Fla.1979).

Appellant’s argument with regard to counts 2 and 3 is not meritorious, however. Count 1 charged both that appellant committed an assault (sexual battery) and that he armed himself within the structure. Since proof of either of these allegations would sustain his conviction and since the jury’s verdict indicates a finding that both of these allegations were established, the assault allegation may be regarded as sur-plusage for the purposes of this opinion. In other words, if the jury found that appellant armed himself, which it did, it was not also required to find that he committed the assault alleged (sexual battery) in order to convict him of first-degree felony burglary. Since the finding that appellant committed a sexual battery was not indispensable to his conviction of the burglary charged in count 1, appellant could be convicted of both , the sexual batteries charged in counts 2 and 3 as well as the burglary charged in count 1. State v. Pinder, supra.

Finally, the judgment and sentence entered by the trial court included the following language: “IT IS FURTHER CONSIDERED AND ORDERED by the Court that the defendant NEVER be considered for release.” Appellant contends that the inclusion of this language was improper because there is no authority for such a provision. We agree. The trial court had authority under Section 947.16(3), Florida Statutes (1978 Supp.) to retain jurisdiction over appellant for the first third of the maximum sentence imposed for the highest enumerated felony charged and proven which was committed after its effective date, June 19, 1978, Ch. 78-318, Laws of Florida. Beyond this, however, the granting of parole is within the sole discretion of the Probation and Parole Commission. § 921.21, Fla.Stat. (1977).

Accordingly, appellant’s judgments and sentences are REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

GRIMES, C. J., and RYDER, J., concur.

      . Under the Florida Evidence Code, applicable to criminal proceedings related to crimes committed after its effective date, § 90.103(2), Fla.Stat. (1979), Piacenti’s testimony would not constitute hearsay. Section 90.801(2)(c) provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and if the statement is “[o]ne of identification of a person made after perceiving him.” However, because the crimes in question here were committed prior to the effective date of Section 90.801, July 1, 1979, Ch. 78-379, § 1, Laws of Fla., this section is not applicable here.

      . The enumerated felonies involved here are burglary (counts 5 and 10), sexual battery (counts 6 and 9) and robbery (count 7).


text:
    Darwin Delbert PAYNE, Appellant, v. STATE of Florida ex rel. William T. ROBERTS, Sheriff of Pinellas County, Florida, Appellee.
    No. 79-1585.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    James T. Russell, State’s Atty., and C. Marie King, Asst. State’s Atty., Clearwater, for appellee.
   PER CURIAM.

Reversed under the authority of State ex rel. Gandert v. Roberts, 381 So.2d 1191, (Fla. 2d DCA 1980).

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


text:
    William George ADAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2164.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.
    Jack O. Johnson, Public Defender, Michael S. Becker, Asst. Public Defender, and Geoffrey A. Foster, Legal Intern, Bartow, for appellant.
    William George Adamson, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged by affidavit with violation of three conditions of his probation, i. e., changing his residence without the consent of his probation officer, violating a law, and failing to contribute toward the cost of his supervision. The trial court adjudicated appellant insolvent eleven days prior to the revocation proceeding. At the revocation hearing, the only evidence given bearing on appellant’s ability to pay was that he had held various jobs at some time in the past. -The court made no specific finding of his ability to pay.

Accordingly, the finding of violation of the condition requiring appellant to contribute $10 per month toward the cost of his supervision is stricken from the order of revocation. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). The order, judgment, and sentence are affirmed in all other respects.

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


text:
    KAJO, INC., d/b/a Russell Custom Cabinets and Central Florida Kitchen Distributors, Petitioners, v. KITCHEN KABIN, INC., a Florida Corporation, and Stan Gledhill, Respondents.
    No. 80-207.
    District Court of Appeal of Florida, Second District.
    May 7, 1980.
    Marybeth L. Pullum of Pullum & Pullum, Leesburg, for petitioners.
    No appearance for respondents.
   PER CURIAM.

Certiorari denied. The petitioner has an adequate remedy by direct appeal.

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


author: MILLS, Chief Judge.

text:
    Robert BLACK, Appellant, v. STATE of Florida, Appellee.
    No. LL-178.
    District Court of Appeal of Florida, First District.
    May 7, 1980.

      J. Craig Williams of Williams & Stapp, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

Robert Black challenges his conviction for armed robbery on four grounds: 'the trial court improperly denied his motions to suppress fingerprint evidence and analysis and to compel disclosure of fingerprint evidence, improperly denied discovery of certain police reports, failed to enforce a stipulation, and refused to grant a mistrial because of improper comments by the prosecutor during closing argument. We affirm.

After an armed robbery of a department store in Jacksonville, the police linked Black to the crime by comparing fingerprints found at the scene with fingerprints in their possession. Black filed a motion to compel the State to disclose and furnish the fingerprint evidence and a motion to exclude (suppress) the fingerprint analysis and latent and inked fingerprints. Both motions were denied.

Black contends that the trial court erred by placing the burden on him to prove issues raised in the motion to suppress and in refusing to allow him to discover documents he claims were material to the motion.

Considering the second aspect first, the record reveals that the motion to compel was directed to the fingerprint evidence intended to be used by the State at trial and by the experts in their analysis and comparison and that the evidence requested was provided. On appeal, Black urges that the original fingerprint card which was used to identify him should have been disclosed. The original fingerprint card was not used by the State at trial, nor was it used by the experts; thus, we decline to rule on this point since it was not properly presented to the trial court and preserved for appeal.

Regarding the burden of proof aspect of the first point on appeal, we note first of all that Black states in his brief that he alleged in his motion to suppress that the fingerprints on file had originally been seized as the result of an illegal arrest. The record, however, does not support this claim. The motion alleged, in pertinent part, only that the fingerprints “had been obtained from a prior encounter with the sheriff’s office or an arrest” and “upon being arrested on a previous occasion.”

This case is controlled by this Court’s opinion in Sykes v. State, 329 So.2d 356 (Fla. 1st DCA 1976), which held that the motion itself was deficient for failure to allege that the prior arrest at which time the fingerprints were obtained was illegal and, therefore, the denial of the motion to suppress was proper.

Furthermore, it should be noted that the case of Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), does not hold that every time an arrest is illegal the fingerprints taken at the time must be suppressed, but requires the defendant to show that the arrest is the result of overreaching governmental misconduct. Where a motion to suppress an illegal search is at issue, the burden .is on the moving party to make an initial showing that the search was invalid. Only when that initial showing is made does the burden shift to the State to prove that the search is valid. State v. Lyons, 293 So.2d 391 (Fla. 2d DCA 1974). See also Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974). Black' having failed to make the initial showing of invalidity, the trial court properly denied his motion to suppress.

The second pretrial ruling challenged concerns disclosure of police reports. The motion to compel the disclosure of certain police reports which contained descriptions of the perpetrator of the offense given by the victims to the police alleged that the reports were substantially verbatim recitals of oral statements made which were recorded contemporaneously, discoverable under Rule 3.220(a)(1)(ii), Fla.R.Crim.P., and further alleged they contained information tending to negate his guilt, discoverable under Rule 3.220(a)(2), Fla.R.Crim.P. The trial court denied the motion.

.Though we find no merit in the latter allegation, we do find merit in the former. The inquiry by the court to the State was limited to the question of whether there was any information tending to negate guilt; there was no inquiry concerning whether the police report contained substantially verbatim recitals or oral statements which were recorded simultaneously. The failure to make such an inquiry and, if the allegation by Black was found to be true, to allow discovery of the relevant police reports was error. Rule 3.220(a)(1)(ii), Fla.R.Crim.P.; State v. Dumas, 363 So.2d 568 (Fla. 3d DCA 1978). The State’s reliance on Glow v. State, 319 So.2d 47 (Fla. 2d DCA 1975), in this regard is misplaced, for there the State contested the motion to compel only with regard to the claim that some reports contained exculpatory material; the State expressly agreed to supply those portions of the reports which constituted substantially verbatim statements of witnesses for the State.

We find, however, that the error here was harmless. The report sought by Black contained descriptions of the perpetrator of the offense given by the victims to the police. Though Black was not allowed to see the actual police reports, the record reveals that he was able to discover the information by deposing the officer to whom the victims gave the descriptions. Furthermore, even had Black been unable to discover the information concerning the victims’ descriptions so as to be able to use that information in cross-examining those witnesses at trial, the evidence supporting the finding of guilt, such as fingerprints, was so great that the failure to discover the information at issue here would not have been harmful error.

Black’s third point, that the trial court erred in not enforcing a stipulation, is without merit. Our review of the record concerning the relevant motion to suppress, the stipulation which was entered into by the State, and the evidence Black wanted excluded reveals that the evidence objected to was not within the terms of the stipulation and there was no error.

As for the final point on this appeal concerning the trial court’s failure to grant a motion for a mistrial on the ground that the prosecutor made allegedly improper comments, Black has not established that the comments made by the prosecutor were so prejudicial as to require a mistrial.

Accordingly, we affirm the judgment and sentence.

McCORD and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    Glen COMBS, d/b/a Glen’s Cabinet Shop, Appellant, v. ST. JOE PAPERMAKERS FEDERAL CREDIT UNION, Appellee.
    No. NN-282.
    District Court of Appeal of Florida, First District.
    May 7, 1980.
    Cecil G. Costin, Jr., Port St. Joe, for appellant.
    No appearance, for appellee.
   SHIVERS, Judge.

This appeal is from a Final Judgment on Rehearing in an action to foreclose a mechanic’s lien brought by appellant against appellee and Trend Corporation (which is not a party to this appeal). We affirm except as to the failure of the trial court to award interest to appellant.

In May of 1977, Trend Corporation, as •general contractor, contracted with the St. Joe Papermakers Federal Credit Union (Credit Union), to construct a new office building for the Credit Union for the sum of $71,494. The Cabinet Shop subcontracted with Trend Corporation to install counters, cabinets and shelves for the price of $2,782.

No Notice of Commencement as required by Section 713.13, F.S. was recorded by either Trend or the Credit Union. The Cabinet Shop began fabricating the counters and cabinets at its shop in July of 1977. On August 10, 1977, the Cabinet Shop began installing the cabinets and counters in the new Credit Union building. By letter from the. lawyer for the Credit Union dated October 4, 1977, the Cabinet Shop was advised that Trend Corporation had abandoned the job; that the Credit Union would pay the Cabinet Shop $278 to complete the job’ but that the Credit Union would not be responsible for Trend’s obligation to the Cabinet Shop under the original subcontract.

On October 7, 1977, the Cabinet Shop served its notice to the owner and filed its claim of lien in the amount of $2,782 against the Credit Union’s real property. The Notice to Owner was not filed within forty-five (45) days, as required by Section 713.06(2)(a), F.S., but the Claim of Lien was filed within ninety (90) days from the date the Cabinet Shop last furnished services to the owner.

The Cabinet Shop brought suit to foreclose the mechanic’s lien. Thereafter, the Cabinet Shop completed the contract pursuant to the request of a member of the Board of Directors of the Credit Union. Following non-jury trial on the Cabinet Shop’s foreclosure complaint, the trial court entered final judgment finding that the Cabinet Shop had failed to give notice to owner within forty-five (45) days of commencing to furnish the labor and materials under the subcontract as required by Section 713.06(2)(a), F.S.; that the owner failed to file a Notice of Commencement of Construction under Section 713.13(1), F.S.; failed to obtain from the general contractor any affidavit concerning payment of lien-ors; and failed to file a notice of recommencement of construction after the general contractor had abandoned the job. The trial court concluded that absent proof by the Cabinet Shop that there remains in the hands of the owner a portion of the contract price payable to the general contractor, there can be no recovery under the mechanic’s lien law unless the forty-five (45) day notice to owner has been timely filed. The court entered judgment for the Credit Union, denying the Cabinet Shop any relief.

The Cabinet Shop timely moved for rehearing and filed an amendment thereto. The trial court granted the motion for rehearing on the grounds that the Credit Union had failed to retain 10% of the contract price as required by Section 713.-06(3)(d) 5, and by the contract between Trend Corporation and the Credit Union. No contractor’s affidavit under Section 713.06(3)(d) 1 was given to the Credit Union as owner by Trend Corporation as the general contractor. The trial court further found that 10% of the contract price equals $7,149.40, and the amount retained was $6,201.73, leaving a balance of $947.00 required to be retained under the provisions of the above stated law and the general contract. The court further found that the Credit Union wrongfully paid the contractor the sum of $947.67 by reason of not witholding the full 10% of the contract price prior to securing the affidavit. The court ordered the Credit Union to show cause why a lien should not attach to its premises in favor of the Cabinet Shop in the sum of $947.67. The Credit Union paid into the Registry of the Court the sum of $947.67 on February 8, 1978, and thereafter filed its statement of cause of why the lien should not attach to its property. The court thereafter entered its final judgment on rehearing, which awarded the Cabinet Shop the sum of $947.67, together with attorney’s fees and costs.

The Cabinet Shop’s failure to give notice to the owner within forty-five (45) days of beginning work, as required by Section 713.06(2)(a), bars its claim for a valid mechanic’s lien. A subcontractor such as the Cabinet Shop may be entitled to an equitable lien on unpaid funds or improperly paid funds despite his failure to perfect a mechanic’s lien. Morgan v. Goodwin, 355 So.2d 217 (Fla. 1st DCA 1978); Crane Company v. Fine, 221 So.2d 145 (Fla.1969); and Konsler Steel Company v. Partin, 356 So.2d 264 (Fla.1978). However, the pleadings below did not pray for an equitable lien. An appellant cannot raise a point for the first time on appeal. Likewise, an appellate court is not at liberty to grant a remedy not sought in the trial court. The Cabinet Shop is, however, entitled to interest on the amount of $947.67 from October 7,1977, the date it filed its lien, until February 8, 1978, the date the Credit Union paid that sum into'the registry of the court. Peter Marich and Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2nd DCA 1978) and Section 687.01, F.S., 1977.

The work the Cabinet Shop did in completing the contract upon the request of the member of the Credit Union’s Board of Directors was done pursuant to an independent contract calling for payment of $278.00. While the Cabinet Shop may be entitled to payment for this work, plus interest, these damages were properly denied based on the status of the pleadings.

The appellant’s motion for attorney’s fees is granted and remanded to the trial court for a proper award.

Reversed and remanded for proceedings not inconsistent herewith.

McCORD, J., and MASON, ERNEST E., Associate Judge, concur.


author: McCORD, Judge.

text:
    William B. MILLS, as Trustee of the Jessie Ball duPont Religious, Charitable and Educational Fund, a Testamentary Trust created under the Last Will and Testament and Codicils thereto of Jessie Ball duPont, deceased, Appellant, v. Edward BALL and The Florida First National Bank of Jacksonville et al., Appellees. The EPISCOPAL CHURCH IN the DIOCESE OF FLORIDA, INC., as Representative of a class of possible beneficiaries under the Last Will and Testament and Codicils thereto of Jessie Ball duPont, deceased, Appellant, v. Edward BALL and The Florida First National Bank of Jacksonville et al., Appellees.
    Nos. LL-460, LL-461.
    District Court of Appeal of Florida, First District.
    May 7, 1980.

      John H. Wilbur and Christine Rieger Milton of Milam & Wilbur, Jacksonville, for appellant Mills.
    Stephen D. Busey of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appellant Episcopal Church.
    Delbridge L. Gibbs of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee Ju-han.
    John S. Miller, Jr., of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellees Edward Ball and The Florida First Nat. Bank.
   OPINION ON MOTION FOR CLARIFICATION

McCORD, Judge.

The Episcopal Church in the Diocese of Florida, Inc., in its motion for clarification of our opinion in this cause, contends that the ruling of the opinion that a gift to the discretionary fund of a particular minister is a gift to the church with which he is affiliated, an institution, is at odds with the following statement contained in the opinion:

It follows that to qualify for future gifts from the trust, the gifts must be to a particular minister’s discretionary fund who was the recipient of a gift or gifts to his discretionary fund by Mrs. duPont during the five years specified, and such a minister may receive such a gift only if he is an active minister or priest of a congregation or an active bishop of the church at the time the gift is made.

We agree and recede from the above-quoted statement. To be eligible for future gifts under Mrs. duPont’s Will, the recipient must have been an institution which received a gift during the five-year period. The churches with whom the ministers were affiliated at the time of Mrs. duPont’s gifts during the five-year period specified in the Will are the institutions to whom gifts were made during that period, and thus the trustees may consider the discretionary funds of these churches, for future gifts from the trust. Ministers whose discretionary funds received such gifts during the period and who are now affiliated with a different church are not eligible to receive gifts on behalf of that church unless such latter church received a gift from Mrs. duPont during the five-year period.

LARRY G. SMITH, J„ and MASON, ERNEST E., Associate Judge, concur.