author: DOWNEY, Judge.

text:
    Jack Roy CORBITT, Appellant, v. Frances E. BURKETTE f/k/a Frances E. Corbitt, Appellee.
    No. 80-1262.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Edna L. Caruso, West Palm Beach, for appellant.
    Margaret L. Cooper of Jones & Foster, P. A., West Palm Beach, for appellee.
   DOWNEY, Judge.

When the marriage between appellant Jack Corbitt and appellee Frances Burkette was dissolved the final judgment of dissolution incorporated a property settlement agreement in which the parties agreed to sell the marital home within one year and divide the proceeds. Appellant refused to honor his agreement or the final judgment and appellee sought enforcement of the final judgment. On the date set by the court for sale of the property appellee failed to show up (though her lawyer appeared), and the appellant bid the property in for $900. The testimony fixed the value of the unencumbered property at between $45,000 and $65,000.

Appellee moved to set the sale aside on the grounds that the sales price was inadequate and that fear of her husband prevented her appearance at the sale to protect her interests. Based upon the evidence adduced at a hearing on appellee’s motion, the trial court entered an order vacating the sale. That order is the subject of this appeal.

There is substantial competent evidence in the record to support a finding that the sales price was grossly inadequate and that appellee’s failure to appear and bid on the property resulted from appellant’s threats of violence. It appears appellant has been living in the home for the past three years rent free and from the inception did not want the home sold. During the marriage appellant had beaten appellee on several occasions; he had beaten the appellee’s new husband, Burkette, on two occasions; he had entered the Burkettes’ home to take possession of some of his belongings and threatened to kill them if they interfered with him; and he admitted stating that he would do serious bodily harm to Burkette if Burkette didn’t leave him alone. In addition one of Burkette’s golfing friends advised Burkette that appellant told the friend to tell Burkette he would never enjoy the money from the sale of the home and that Corbitt would kill Burkette. This threat was passed on to appellee prior to the sale date. Although appellee was prepared to bid the house in at sale, she and Burkette testified they were afraid appellant would carry out his threats if they attended the sale.

There were conflicts in the evidence and inferences could have been drawn in favor of appellant. However, the trial judge observed the witnesses and he obviously concluded that the truth and justice of the case favored appellee. The record supports that conclusion.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

MOORE and HERSEY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Karen S. WRIGHT, Appellant, v. Alice NIGH, Stephen Cutter, Ben Johnson, Reginald Boardman and Patricia Goodale, Appellees. Stephen CUTTER and Ben Johnson, Appellants, v. Karen S. WRIGHT, Alice Nigh, Reginald Boardman and Patricia Goodale, Appellees.
    Nos. 80-1394, 80-1441.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied July 7, 1981.

      Bruce W. Parrish, Jr. of O’Connell, Cooper, Parrish & McBane, P. A., West Palm Beach, for appellant Karen S. Wright (80-1394).
    S. Carol McLean of Jones & Foster, P. A., West Palm Beach, for appellants Stephen Cutter and Ben Johnson (80-1441).
    Mikel D. Greene and Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for appellee Reginald Boardman.
   DOWNEY, Judge.

These consolidated appeals involve a judgment on the pleadings which essentially found that appellants, Wright and Cutter and Johnson, could not maintain their respective claims for tortious interference with a contractual relationship.

The litigation commenced when appellant Karen Wright, as purchaser, sued appellee Alice Nigh, as seller, for specific performance of a contract to sell a parcel of real property in the Town of Palm Beach. Nigh filed a counterclaim against Wright, asserting that Wright, who herself was a real estate broker, breached her fiduciary duty in not reporting to Nigh an offer to purchase from one, Boardman. Nigh also filed a third party complaint against Cutter and Johnson, real estate brokers, who procured the Wright-Nigh contract in question. Eventually Boardman was made a party and plaintiff Wright and third party defendants Cutter and Johnson filed claims against Boardman for tortious interference with the contractual relationship between Wright and Nigh.

In her claim (inappropriately labeled “cross complaint”) for tortious interference Wright asserted Boardman’s intentional and malicious interference with Wright’s contract to purchase the Nigh property resulted in Nigh’s refusal to sell the property to Wright. Wright sought compensatory damages for increased interest rates, attorney’s fees incurred in prosecuting the specific performance suit, loss of use of the property, and punitive damages. Cutter and Johnson in their action sought compensatory damages for loss of their commission, emotional distress, and punitive damages.

Just prior to trial on the specific performance aspect of the case Wright and Nigh settled their case and the court entered an order dismissing with prejudice Wright’s complaint against Nigh for specific performance and Nigh’s counterclaim against Wright. Nigh and Cutter and Johnson also stipulated to a dismissal with prejudice of their third party complaint and counterclaim. '

After the foregoing orders of dismissal were entered Boardman moved for a judgment on the pleadings with regard to the claims against him for tortious interference with a contractual relationship. The thrust of Boardman’s motion was that the voluntary dismissal of the specific performance and other claims between Wright and Cutter and Johnson on the one hand and Nigh on the other without any reservation of rights constituted a release or adjudication of the tort claim against Boardman. The trial court granted Boardman’s motion and entered a final judgment dismissing all of the claims based upon tortious interference.

No question is raised on this appeal with regard to the procedural aspects of entering judgment on the pleadings in the present posture of this litigation. Rather, the questions presented have only to do with the merits of the judgment in Boardman’s favor. Thus, we will also treat only the merits of that judgment.

There is no question that a person can maintain an action for breach of contract and an action in tort for interference with that same contract. See, e. g., Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3rd DCA 1977). Although there is a division of authority on the question nationally, we think the preferred view is that the settlement of the contract action does not preclude further prosecution of the tort action for interference with the contract. However, settlement of the one may well have some effect on the elements of damage recoverable on the other. See Prosser, Law of Torts, § 129, p. 948 (4th Ed. 1971). In this litigation, settlement of the specific performance case and payment of the commission would eliminate such damages as the real estate brokerage commission and loss of the purchaser’s bargain. However, as to other damages resulting from the tort, such as attorney’s fees incurred in the specific performance suit and punitive damages, there is no reason to hold their recovery barred by elimination of the contract claim, unless of course the claimant has given a release of the tort claim. The mere settlement of the contract claim does not, without more, release the tort claim.

Wright and Cutter and Johnson have alleged damages in their claim for interference which were not involved in the specific performance suit, and thus they will support the tort claims.

Accordingly, the judgment appealed from is reversed, and the cause is remanded with directions to reinstate the claims for tor-tious interference with a contract.

MOORE and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    COMPASS INSURANCE COMPANY, Appellant, v. PALM BEACH LAKES AIRCRAFT, INC., Appellee.
    No. 80-1625.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    J. A. Dillian and David McDonald of McDonald & McDonald, Miami, for appellant.
    McKeown & Gamot, Palm Beach and Larry Klein, West Palm Beach, for appel-lee.
   BERANEK, Judge.

The defendant, insurance carrier, appeals a plaintiff’s judgment holding coverage applicable to the disappearance of an insured aircraft. Plaintiff/appellee was the corporate owner in a suit for the value of the aircraft. Plaintiff presented proof that a corporate officer had crashed the plane in the Atlantic Ocean on. October 24, 1978. The pilot (in a sworn statement given before trial) stated he was immediately picked up by a passing boat but that he did not tell anyone about the accident until December 15, 1978. The pilot, who was an officer of the corporation, disappeared shortly after December 15, 1978, and neither he nor the plane has been seen since. Notice was first given to the insurance carrier on December 15, 1978, when it was advised of . the October 24, 1978, crash.

At a non-jury trial, the trial judge announced that he did not believe the evidence that the plane had been crashed into the ocean. This evidence was severely impeached and indeed plaintiff concedes it was perfectly proper for the trial court to disbelieve it. Notwithstanding rejection of the plaintiff’s evidence regarding a crash, the court apparently concluded there was coverage because the plane had in fact disappeared. The court relied upon the following policy provision:

Coverage G — All Risks While In Motion. To pay for direct and accidental loss of or damage to the aircraft, hereinafter called loss, occurring while the aircraft is in motion under its own power or the momentum generated therefrom, or while the aircraft engine is operating, including fire or explosion caused by or resulting from collision of the aircraft with any object arid including disappearance if the aircraft is missing and not located for sixty (60) days after takeoff.

We reverse. The above coverage applied to the aircraft while in motion. In the instant case, there was absolutely no proof which was accepted by the trial court that anything happened to the aircraft while in motion. Plaintiff contends the airplane disappeared and that Coverage G thus applies. We disagree and hold the absence of evidence regarding a takeoff to be fatal to the claimed coverage. Here, at best, plaintiff proved that the whereabouts of the plane were unknown. In the absence of proof of takeoff or that the plane was in motion, plaintiff simply failed to prove a risk within the coverage stated above. See Phoenix Insurance Company v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970). The judgment below is reversed and the cause remanded for entry of a judgment for the defendant.

REVERSED AND REMANDED.

LETTS, C. J., and MOORE, J., concur.


author: PER CURIAM.

text:
    Isalee BYRD, Appellant, v. STATE of Florida, DEPT. OF TRANSPORTATION, Appellee. Hattie SHEPPARD, Appellant, v. STATE of Florida, DEPT. OF TRANSPORTATION, Appellee.
    Nos. 80-1989, 80-1990.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, and Larry Klein, West Palm Beach, for appellants.
    Stephen C. McAliley of Brennan, McAli-ley, Hayskar & McAliley, P. A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Florida Public Service Commission v. Triple A Enterprises, Inc., 387 So.2d 940, 941 (Fla.1980).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


author: DANAHY, Judge.

text:
    Mark A. REYNOLDS, Appellant, v. The LIFE INSURANCE COMPANY OF VIRGINIA, et al., Appellees.
    No. 80-823.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    John L. McFadyen, Pinellas Park, for appellant.
    David L. Bresler of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellee The Life Insurance Company of Virginia.
   DANAHY, Judge.

Appellee issued a policy of insurance to appellant providing coverage for medical expenses. The policy contained the following provision:

REDUCTION: Benefits payable under this policy will be reduced by the amount of benefits payable for the same loss pursuant to a Motor Vehicle No-Fault Law, or similar law.
The Florida Automobile Reparations Reform Act, and any other similar act, is to be considered a Motor Vehicle No-Fault Law.

Appellant was injured in an automobile accident while driving an automobile owned by him which was not covered by insurance affording him personal injury protection (PIP) benefits as required by the Florida Automobile Reparations Reform Act. §§ 627.730-627.741, Fla.Stat. (1979). He incurred medical expenses in excess of $11,000 which would be entirely covered by appellee’s insurance policy but for the reduction provision set forth above. Appellee took the position that the reduction provision applied and paid only those medical expenses of appellant in excess of $5,000 (the measurement of personal injury protection (PIP) benefits then applicable under section 627.736). Appellant brought this suit to collect the $5,000 withheld by appel-lee and suffered an adverse final judgment. We reverse.

We reject appellee’s argument that this case is distinguishable from our decision in Ward v. Nationwide Mutual Fire Insurance Co., 364 So.2d 73 (Fla.2d DCA 1978). In the Ward case, we considered two insurance policy provisions purporting to reduce coverage to the extent of PIP benefits, as those provisions applied to claimants who owned motor vehicles and failed to have no-fault insurance as required by Florida law. One policy provided that coverage was to be excess over “any personal injury protection benefits paid or payable.” The other provided that benefits were to be over and above “any personal injury protection benefits that are paid or payable ... under this or any policy.” We held that, since there was no insurance policy under which PIP benefits were paid or payable to either claimant, these exclusionary provisions did not have the effect of reducing coverage by the amount of PIP benefits then required under a no-fault insurance policy.

Appellee argues that Ward is distinguishable from this case because here, unlike the situation in Ward, the reduction provision in appellee’s insurance policy refers to benefits payable pursuant to Florida’s no-fault law, whereas in Ward, the insurance provisions referred to (or were construed by this court to refer to) benefits payable under an insurance policy. Appellee’s reasoning is that this court’s decision in the Ward case was based on the absence of any insurance policy providing PIP benefits, so that the exclusionary provisions were not triggered. Here, says appellee, there is a no-fault law pursuant to which benefits are payable; therefore, under the clear language of the reduction provision, coverage is to be reduced by the amount of those benefits.

The flaw in appellee’s reasoning is that PIP benefits are not payable “pursuant to” Florida’s no-fault law. The law requires the owner of a motor vehicle to obtain insurance affording PIP benefits. The statutory scheme contemplates that PIP benefits will be paid under the required insurance, not directly by reason of the operation of the statute. Since appellee’s insurance policy refers to benefits payable pursuant to a motor vehicle no-fault law, and since no such benefits were payable to appellant in this case, the reduction provision clearly does not apply. The situation is very similar to that in Carroll v. Union Labor Life Insurance Co., 65 Wash.2d 513, 398 P.2d 164 (1965), on which we relied in reaching our decision in Ward.

The trial judge in this case also found a public policy reason for ruling in favor of appellee, commenting that a ruling in behalf of appellant would condone appellant’s failure to comply with the no-fault law. For the reasons expressed in Ward, we hold that it was error to deny recovery to appellant on grounds of public policy by reason of his failure to comply with the no-fault law.

REVERSED and REMANDED with directions to enter judgment in favor of appellant.

GRIMES, Acting C. J., and OTT, J., concur.


text:
    SCHOOL BOARD OF POLK COUNTY, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, et al., Appellees.
    No. 80-1413.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.

      C. A. Boswell, Jr., and Donald H. Wilson, Jr., Bartow, for appellant.
    R. T. Donelan, Jr., Asst. Gen. Counsel and I. Jeffrey Pheterson, Staff Counsel, Public Employees Relations Commission, Tallahassee, for appellee Florida Public Employees Relations Commission.
   DANAHY, Judge.

The Public Employees Relations Commission (PERC) takes the position in this case that a “fringe” group of public employees may be added to an existing collective bargaining unit without giving the employees in that group the opportunity, through a self-determination election, to indicate whether they wish to be included in the existing unit or to remain unrepresented. We disagree.

In 1975 PERC certified the Polk County Non-Instructional Employees Union, Local 2227, AFSCME, AFL-CIO (the Union) as the exclusive bargaining agent for a collective bargaining unit composed of the maintenance, custodial and warehouse employees of the School Board of Polk County (the School Board). The unit did not include the School Board’s bus garage employees. Five years later , the union initiated this proceeding by filing a petition for unit clarification seeking to add the bus garage employees to its existing unit of maintenance, custodial and warehouse employees.

All parties agree that the bus garage employees would not constitute an appropriate bargaining unit by themselves, and that the only unit in which they could appropriately be placed is the overall unit of maintenance, custodial and warehouse employees. The sole issue is whether the bus garage employees should be permitted to vote on the matter. The Union and the School Board agree that they should, and asked PERC to conduct a secret ballot election among the bus garage employees before adding them to the existing unit. Notwithstanding that request, PERC entered an order directing that the bus garage employees be placed in the existing collective bargaining unit without an election. The School Board has petitioned this court for review of that order. We hold that the order reflects an erroneous interpretation of the Public Employees Relations Act (PERA) and set it aside.

In reaching our decision, we chose to follow the precedent set by the National Labor Relations Board (NLRB) in like cases arising under the National Labor Relations Act (NLRA). Since the relevant provisions of Florida’s PERA are similar to those of the NLRA, decisions of the NLRB are pertinent and instructive where, as here, the case is one of first impression under PERA. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977); Craver and La Peer, The Legal Obligations of Governmental Employers and Labor Organizations Under the Recognition-Certification Provisions of the Florida Public Employees Relations Act, 27 U.Fla.L.Rev. 705, 711-712 (1975).

Both the School Board and PERC recognize the relevancy of NLRB decisions in resolving the question presented to us in this case, but neither has favored us with an accurate statement of the NLRB’s position. The NLRB cases cited to us involve an entirely different situation, that in which a representation election is to be held in the historical bargaining unit and the question has arisen whether employees in a fringe group not previously included in the unit should be given the opportunity to vote separately. The NLRB has at times followed the practice of directing a separate vote by the members of such a previously excluded group. The Zia Company, 108 N.L.R.B. 1134 (1954). Its present policy however, is to direct only one election among all employees in the appropriate unit including the members of the fringe group. D. V. Displays Corp., 134 N.L.R.B. 568 (1961). PERC cites the NLRB rule in such cases as authority for the proposition that members of a fringe group previously omitted from a unit may only vote as members of the unit. PERC argues that, therefore, the fringe group may be added to the unit without a self-determination election by its members.

In the case before us, no election is to be held among the members of the Union’s current unit of School Board employees. The question is not whether the bus garage employees should be given the opportunity to vote separately on whether they wish to be represented or permitted to vote only as members of the existing unit. The question is whether the bus garage employees are entitled to vote at all before being added to a currently represented unit.

PERC tells us that there is no analogous proceeding for unit clarification under the NLRA because the NLRB and PERC differ on the timing of unit clarification. PERC says that the NLRB will add a missing fringe group to an appropriate unit only when a question concerning representation is raised concerning the entire unit, including the fringe group; thus, fringe group employees are permitted to express their representational preference contemporaneously with all other unit employees as part of the entire unit’s decision. Thus, PERC concludés that it is inappropriate to delay inclusion of positions mistakenly excluded from their only appropriate unit until such time as a representational controversy exists in the entire unit.

In its zeal to obtain this court’s approval of its position, PERC has failed to advise us of significant decisions relevant to disposition of this appeal. There are NLRB proceedings in which missing fringe groups can be added to existing units notwithstanding that there is no question of representation requiring an election in the overall unit. In such cases, the NLRB has never failed to permit a self-determination election among the members of the fringe group before adding them to the existing unit. Photype, Inc., 145 N.L.R.B. 1268, 1272 n. 8 (1964); The Connecticut Light and Power Co., 121 N.L.R.B. 768 (1958); D. V. Displays Corp., 134 N.L.R.B. 568, 573 (1961) (Rodgers and Leedom, dissenting). We agree with that approach.

PERC admonishes against “slavish adherence” to NLRB precedent and offers many reasons why we should consider that Florida’s public sector labor policy embodied in PERA justifies PERC’s decision in this case, which PERC describes as “a correct balancing of competing public interests in accordance with Florida public sector labor policy.” We are not persuaded that there is any public policy reason to deny public employees the same opportunity as private employees to vote on the matter before" adding those employees to an existing collective bargaining unit.

We set aside the PERC order under review and remand this proceeding with directions that PERC conduct a self-determination- election among the School Board’s bus garage employees on the question whether they wish to become part of the bargaining unit composed of maintenance, custodial and warehouse employees, or whether they wish to remain outside the unit and unrepresented.

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

      . Compare section 447.301(1), Florida Statutes (1979), with 29 U.S.C. section 157 (1970). Compare section 447.307, Florida Statutes (1979), with 29 U.S.C. section 159 (1970).


author: CAMPBELL, Judge.

text:
    Nora J. COOK, Appellant, v. WALGREEN CO., Days Ease Home Products Corp., the Clorox Company, and Procter & Gamble Distributing Co., Appellees.
    No. 80-1524.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    Jerry B. Shell of the law offices of Gale K. Greene, Sarasota, for appellant.
    Gary M. Witters of Allen, Dell, Frank & Trinkle, Tampa, for appellee Days Ease Home Products Corp.
    W. Robert Mann and J. Alden Weichel of Mann & Fay, Chartered, Bradenton, for ap-pellee Clorox Company.
    Lewis F. Collins, Jr. of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellee Procter & Gamble Distributing Co.
   CAMPBELL, Judge.

The plaintiff in the lower court appeals from orders granting defendants’ motions for summary judgment because of her failure to file her complaint within the four-year statute of limitations period. Appellant contends that although the original complaint was file-marked by the clerk of the circuit court after the statute of limitations had run, such evidence is not so conclusive as to support a summary judgment in light of a contradicting affidavit presented to prove timely delivery of the pleading to the office of the clerk of the circuit court. We find this contention to be meritorious and reverse.

According to his sworn affidavit, on Friday, September 28, 1979, a paralegal employed by appellant’s attorney delivered appellant’s complaint to a basket in the clerk’s office designated “incoming papers.” For unexplained reasons, the complaint was not file-stamped until Tuesday, October 2, 1979. The last day for filing under the applicable statute of limitations was Monday, October 1, 1979. The clerk of the circuit court for Sarasota County submitted a sworn affidavit stating that the incoming papers basket was used to receive all papers for filing in an effort to expedite the filing procedure. Thus, the clerk’s office would inform attorneys and their agents that papers to be filed should be left in the basket to be processed later.

In their motions for summary judgment, appellees argued, inter alia, that the statute of limitations had run, relying exclusively on the date of the clerk’s file stamp. In separate orders, the trial court granted summary judgment as to all the appellees, noting that there was no proof that between September 28 and October 2 the clerk of the court had not processed for filing all of the papers that had been left in the incoming basket by the close of business on September 28.

The primary issue raised on this appeal is whether a file stamp used by the clerk of the court is conclusive evidence of the time of filing. It is the consensus of most jurisdictions that file-marking is mere evidence of the date of filing, is not conclusive, and may be rebutted by conflicting evidence. E. g., Graves v. General Insurance Corp., 381 F.2d 517 (10th Cir. 1967); Ward v. Atlantic Coast Line Railroad Co., 265 F.2d 75 (5th Cir. 1959).

The Florida Supreme Court has discussed the requirements of filing, deciding that a pleading is deemed filed when it is delivered to and received by the proper officer for that purpose. Bituminous Casualty Corp. v. Clements, 148 Fla. 175, 3 So.2d 865 (1941). The court in Bituminous Casualty described the clerk’s duty as follows:

It is the duty of the officer receiving a pleading for filing to make the proper indorsement and entry; but this is merely evidence of the filing and is not essential to the validity thereof, except in some jurisdictions where statutes requiring such indorsement and entry have been held mandatory.

Id. at 178, 3 So.2d at 866 (citing 49 C.J. Pleading § 919 (1930)). See In re Switzer’s Estate, 115 Fla. 780, 156 So. 1 (1934); Blake v. R. M. S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977). But see Security Finance Co. v. Gentry, 91 Fla. 1015, 109 So. 220 (1926) (Where the court clerk was required by statute to keep a default docket, a default did not begin to run until such entry was made in the proper docket book.) Section 28.13, Florida Statutes (1979), further describes the clerk’s duty for filing papers.

It is apparent that the system for receiving documents was such that one delivering papers to the incoming box could reasonably expect them to be stamped the same day. According to this procedure, one might conclude that appellant’s attorney fulfilled his obligation of delivery for the purpose of filing. Bituminous Casualty Corp.

If the date of the clerk’s file-marking is not conclusive, and competent evidence is presented to show the clerk received the pleading on a date other than the one stamped, a factual question is raised and a summary judgment is not warranted. Appellant would not be precluded at a further evidentiary hearing from presenting evidence to support the failure to file within the period of the statute of limitations.

REVERSED and REMANDED for treatment consistent herewith.

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

      . Florida Statutes, section 28.13 (1979):
      The clerk of the circuit court shall keep all papers filed in his office with the utmost care and security, arranged in appropriate files (endorsing upon each the time when the same was filed), and all the pleadings in such cause shall be attached together with tape or ribbon, and kept distinct from other papers in the cause; and papers of different kinds shall not be mixed up and folded loosely together, but each description of papers shall be kept on file with other papers of the same class; and he shall not permit any attorney, or other person, to take papers once filed out of the office of the clerk without leave of the court, except as is hereinafter provided by law.


author: GRIMES, Judge.

text:
    TEMPLE BETH SHOLOM AND JEWISH CENTER, INC., a nonprofit Florida corporation, Appellant, v. THYNE CONSTRUCTION CORP., a dissolved Florida corporation; Seaboard Surety Company, a New York corporation; and Marsh Roofing Company, Appellees.
    No. 80-1688.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    A. Lamar Matthews, Jr. and Charles D. Bailey, Jr. of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellant.
    Henry P. Trawick, Jr. of Trawick & Grif-fis, P.A., Sarasota, for appellees Thyne Construction Corp. and Seaboard Surety Co.
    John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appel-lee Marsh Roofing Co.
   GRIMES, Judge.

This case involves a dispute between an owner, its general contractor, and a roofing subcontractor over the installation of a defective roof.

Temple Beth Sholom and Jewish Center, Inc., contracted with Thyne Construction Corporation to build a sanctuary and social hall. The contract called for the installation of an asphalt roof membrane over a concrete roof deck. Thyne subcontracted with Decks, Inc., to install the deck for $11,735 and with Marsh Roofing Company to install the membrane for $10,955. Less than a year after construction, the roof began to leak. The leaks eventually became so bad that they forced the replacement of the roof. Temple removed the entire membrane and substituted one of a different design which cost $72,000.

Alleging a breach of contract, Temple sued Thyne and Seaboard Surety Company for damages arising from the construction of the defective roof. Thyne and Seaboard then filed third party claims against Decks and Marsh alleging that if the defects in the roof existed, one or both of the third party defendants were responsible. Following a nonjury trial, the court entered a final judgment in favor of Temple against Thyne and Seaboard for $10,000. The court exonerated Decks but ruled that Thyne and Seaboard were entitled to recover $5,000 from Marsh on their third party claim. Temple filed an appeal attacking the adequacy of the judgment. Thyne and Seaboard, on the one hand, and Marsh, on the other, cross-appealed against each other.

While the final judgment made no findings, a reading of the judge’s remarks at the conclusion of the hearing indicates that he was influenced by the original contract price for the membrane. Also, he apparently reduced Temple’s recovery because he thought that Temple’s representatives had pressured the contractor into putting on the roof at a time when the rainy weather conditions dictated the need for delay.

The proper measure of damages for construction defects is the cost of correcting the defects, except in certain instances where the corrections involve an unreasonable destruction of the structure and a cost which is grossly disproportionate to the results to be obtained. Gory Associated Industries, Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978); Edgar v. Hosea, 210 So.2d 233 (Fla.3d DCA 1968). If in the course of making repairs the owner elects to adopt a more expensive design, the recovery should be limited to what would have been the reasonable cost of repair according to the original design. Cf. Pinellas County v. Lee Construction Co., 375 So.2d 293 (Fla.2d DCA 1979), in which this court reversed a judgment which had limited the award for construction defects to the contract price and permitted recovery of the cost of the most reasonable method for remedying the defects.

Temple’s consulting engineer from Massachusetts estimated that it would have cost $39,000 to replace the roof according to its original design. This figure was subject to some criticism as not reflecting local construction costs. It is obvious, however, that the cost of making reasonable repairs would have far exceeded the amount of the judgment. Moreover, the court failed to take into account the damage caused inside the building by the water leakage.

Any reduction of Temple’s recovery because of the conduct of its own representatives was based upon a misapprehension of the evidence. While the record reflects the possibility that Thyne may have pushed Marsh into putting on the membrane before the weather conditions were suitable, there is absolutely no evidence that Temple pressured anyone towards an early completion.

We affirm the judgment insofar as it holds Thyne and Seaboard liable to Temple for damages arising from the faulty roof construction. We reverse the amount of the award and remand the case for a new trial on damages in which Temple will be entitled to recover what it would have reasonably cost to replace the roof according to the original design, together with any engineering and architectural fees reasonably necessary to accomplish the repair. In addition, Temple will be entitled to recover for the damages to the interior and contents caused by the leaky roof. In view of our disposition of Temple’s appeal, we also reverse the judgment for Thyne and Seaboard against Marsh and remand for a re-determination of the amount of damages owing on the third party claim.

SCHEB, C. J., and RYDER, J., concur.


text:
    John N. GRANSTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-2220.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals from an order revoking his probation.

The revocation of probation is affirmed. However, the cause is remanded so that the written order of revocation of probation can be corrected to conform with the judge’s oral findings on the record that probation was revoked based solely upon a violation of condition 4.

SCHEB, C. J., and GRIMES and DAN-AHY, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Joseph RUSH, Respondent.
    No. 81-546.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for petitioner.
    Fred Pflaum of Ginsburg, Byrd, Jones & Pflaum, P.A., Sarasota, for respondent.
   CAMPBELL, Judge.

The state petitions for a writ of common law certiorari seeking this court’s review of a pretrial ruling which granted respondent’s motion in limine.

The state filed an information against respondent charging him in Count I with lewd and lascivious assaults upon his stepdaughter, and in Count II with the same offense against a babysitter. Both girls were under the age of fourteen and both offenses took place within the respondent’s home. The alleged offenses against the stepdaughter occurred over a period of several years and involved a greater degree of sexual molestation than did the incident involving the babysitter. The alleged single incident involving the babysitter occurred when the respondent attempted to fondle the babysitter’s breasts while she was holding his one-year-old child.

Respondent’s motion was based on the lack of sufficient similarities in the incidents involving the two minor girls so as to bring them within the application of the rule of admissibility laid down in Williams v. State, 110 So.2d 654 (Fla.1959), and codified in the Florida Evidence Code, section 90.404(2), Florida Statutes (1979).

The trial court was confronted with the decision of this court in Duncan v., State, 291 So.2d 241 (Fla.2d DCA 1974), and the divergent opinion of the First District in Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), both of which construed the Williams Rule concerning admissibility of similar fact evidence in cases involving child sexual offenders. Notably, both cases were decided prior to the effective date of the Florida Evidence Code. The trial court, though it preferred the rationale of Cotita, felt bound by this court’s decision in Duncan. Because the trial judge properly followed the rule of law announced by this court in Duncan and as codified in the Florida Evidence Code, we cannot find that he departed from the essential requirements of law as it existed when he made his ruling. Accordingly, since we cannot make such a finding, we cannot grant certiorari. However, we do not feel that a simple denial of certiorari is adequate in this case and feel compelled to comment further.

The trial court in this case felt compelled by Duncan to grant the motion in limine and also to sever the two counts and require them to be tried separately. Section 90.-404(2), which codifies Williams and Duncan, also dictates the ruling entered by the trial court. However, the trial judge was deeply troubled by his ruling and expressed his concern as follows:

I think it’s an anachronism, and nowhere present in any other phase of the law except sexual offenses, which portrays, ... an insensitivity of appellate judges relative to the pragmatics of the administration of justice at the trial level and at the community level, ... [Wjhich means that some old man can molest twelve kids in his home and not be able to be charged with more than one at a time under existing law, ... which is absurd....
... I hope that you [state] will appeal both, so that they will have both of these absurdities for their consideration, and I hope they will change their minds, which means that I’m going to grant your motion in limine....

We are sympathetic to the frustrations of the trial judge and the public regarding the state of the law with respect to admissibility of similar fact evidence in child sexual molestation cases. We, too, feel a time for change has come. However, since the adoption of the Florida Evidence Code, any change must now come from the legislature and not from the courts.

The issue that concerned the trial judge and that troubles the public is the prohibition by the Williams Rule and section 90.-404(2) of the use of similar fact evidence to prove propensity in child sex molestation cases.

By their very nature, child sexual molestation cases occur, more often than not, in seclusion without other witnesses present. It is siispected that an in-depth study of such incidents would demonstrate that the actions of the aggressor constitute a pattern of conduct rather than an isolated incident. The public and trial judges have long been outraged by a pattern of conduct in child molestation cases that start out with minor incidents of sexual assault, if there are such, and culminate in the death of the frightened child victim who is killed to ensure silence. See generally Comment, Defining Standards For Determining The Admissibility of Evidence of Other Sex Offenses, 25 U.C.L.A.L.Rev. 261 (1978).

The Williams Rule was created by the supreme court to clear the air and resolve the confusion that existed in this area of the law. The court analyzed all of the divergent opinions and announced the rule that similar fact evidence is admissible even though it points to the commission of another crime as long as the sole relevancy of the evidence does not show the character or propensity of the accused. In doing so, it recognized the admissibility of similar fact evidence in the state’s case-in-chief where “[i]t was relevant to meet the anticipated defense of consent.” Williams v. State, 110 So.2d at 663. Using such a standard of relevance we could broaden admissibility to rebut not only the anticipated defense of consent but also to prove absence of mistake or accident as the Florida Evidence Code has provided. However, to carve out such further exceptions or extensions of the Williams Rule or to try to fit such evidence within the enumerated relevant factors specified in the Florida Evidence Code is to beg the question. In Cotita, the majority approved the admission of the similar fact evidence on the grounds that it “was relevant to the alibi defense and in addition to establish ‘a pattern of criminality’, a category of admissibility recognized by the Florida Supreme Court in The Williams Cotita v. State, 381 So.2d at Case. 1147.

In his dissent in Cotita, Judge Robert P. Smith, Jr. asserted that the theme of the majority opinion was “that other-crimes evidence is now relevant for precisely those qualities, its showing of bad character and criminal sexual propensities, which for 150 years have been the cause for restricting its use.” 381 So.2d at 1151-52. Judge Smith concludes his dissent by saying:

I confess I am not at all sure that Williams’ unyielding bar of other-crimes evidence, proving propensity alone, should stand in prosecutions like this, not involving identity issues, for sex offenses against children. It may be that the nature of the offense and the usual difficulties of proving it can justify propensity evidence against the long-honored policy excluding it. (citations omitted)

Id. at 1153-54.

We concur with that statement by Judge Smith and would suggest that it is now time for the legislature to clear the air and recognize that a change in the rule of admissibility of similar fact evidence in child sexual molestation cases is warranted and badly needed. As alluded to before, we believe that it is likely that there are available statistics to show that those who commit child sex offenses have a propensity to commit that peculiar type of offense, that it is inherent in the nature of the crime itself, and being so inherent the propensity itself becomes a relevant factor,

It must be apparent from this opinion that had this cause come to this court following a conviction of the defendant after the similar fact evidence was admitted, absent the Florida Evidence Code we would probably have overruled Duncan and affirmed. Since that is not the posture of this case and in view of section 90.404(2), we cannot say that the trial court departed from the essential requirements of law.

The petition is accordingly denied.

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


text:
    Andre Michel DESPREAUX, Appellant, v. CANADIAN IMPERIAL BANK OF COMMERCE, Appellee.
    No. 81-573.
    District Court of Appeal of Florida, Third District.
    June 10, 1981.
    Stuart L. Stein, Fort Lauderdale, for appellant.
    Ilovitch & Manella, Hollywood, Mandina & Lipsky, Miami, for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellee having confessed error, as follows:

“... that failure to render judgment in American currency was an error and consents to the entry of an order remanding the proceeding for determination by the trial court as to the official rate of exchange equivalent to the Canadian judgment at the time said judgment was entered in Canada, April 26, 1979. See Huntley v. Alejandre, 139 So.2d 911 (Fla.3d D.C.A. 1962); American National Insurance Company v. de Cardenas, 181 So.2d 359 (Fla.3d D.C.A. 1965).”

the final judgment in this cause, dated February 17, 1981, be and the same is hereby reversed and set aside. This cause is hereby returned to the trial court for further proceedings.

Reversed and remanded, with directions.


text:
    Nina DIAMOND, Adele Diamond and William Diamond, Appellants, v. E. R. SQUIBB AND SONS, INC., Appellee.
    No. 78-980.
    District Court of Appeal of Florida, Third District.
    June 11, 1981.
    Mark Krasnow, Lida & Krasnow, Alan Weinstein, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke and James E. Tribble, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 30, 1979 affirmed the summary final judgment of the Circuit Court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 397 So.2d 671, by its opinion and judgment filed April 16, 1981 and mandate now lodged in this court, quashed this court’s judgment with directions to vacate the judgment of the trial court.

NOW, THEREFORE, It is Ordered that the mandate in this court, 366 So.2d 1221, heretofore issued in this cause on February 19,1979 is withdrawn, the judgment of this court filed January 30, 1979 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    LEE-BOOTH, INC., Appellant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellee.
    No. 80-1251.
    District Court of Appeal of Florida, Second District.
    June 12, 1981.
    Walter B. Smith of Green & Fonvielle, Tallahassee, for appellant.
    Joseph G. Thresher and David L. Smith of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   DANAHY, Judge.

Appellant (Lee-Booth) purchased the assets of Format Ten, Inc., a corporation in the business of hardware supply. One of those assets was an alleged account receivable due Format Ten from Jansen Company of Florida, Inc., the general contractor for the construction of the West Pasco County Government Center. Appellee (Fidelity) is the surety on Jansen’s performance and payment bond.

Lee-Booth brought this suit against Jansen and Fidelity to collect the alleged account receivable, alleging that Format Ten had entered into a hardware supply contract with Jansen with respect to the West Pasco County Government Center project and had shipped hardware material to Jansen pursuant to that contract. Lee-Booth alleged that Jansen owed a balance of $24,431.60 to Format Ten and attached invoices to its complaint reflecting that total amount.

After Lee-Booth dropped Jansen as a defendant, Fidelity filed a motion for summary judgment and offered in support of that motion an affidavit by Louis Carrozza, vice president of Jansen. In essence, the Car-rozza affidavit stated that (1) Jansen owed no money to Lee-Booth, Inc., or to Format Ten for materials delivered to Jansen; (2) Format Ten never delivered any materials to Jansen at the West Pasco County Government Center; and (3) the entire liability of Jansen under its original purchase order to Format Ten was offset by sums which Jansen was required to pay to another supplier, by the cost to Jansen of curing defective material that was delivered, and delay damages incurred by Jansen for nondelivery.

The trial judge granted summary judgment in favor of Fidelity and Lee-Booth appeals. We reverse.

Simply stated, the Carrozza affidavit failed to negate the existence of genuine issues of material fact. The statements that Jansen owed no money to Lee-Booth or to Format Ten, and that any liability of Jansen to Format Ten or Lee-Booth was offset by certain items, are nothing more than conclusions or statements of ultimate fact. Such statements do not justify entry of summary judgment. Dean v. Gold Coast Theatres, Inc., 156 So.2d 546 (Fla. 2d DCA 1963). In view of the invoices attached to Lee-Booth’s complaint, the allegation in the Carrozza affidavit that Format Ten never delivered any materials to Jansen does nothing more than reflect the existence of a factual issue to be determined by the trier of fact.

REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

GRIMES, Acting C. J., and OTT, J., concur.


text:
    STATE of Florida, Petitioner, v. Edward Thomas HARRIS and Mary Hilda Harris, Respondents.
    No. AC-55.
    District Court of Appeal of Florida, First District.
    June 16, 1981.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Since Petitioner has not demonstrated that the Circuit Court departed from the essential requirements of law, the Petition for Writ of Common-Law Certiorari is denied.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    GEORGE BROWN & SON PAINTING and American Mutual Liability Insurance Company, Appellants, v. Collins PATRICK, Appellee.
    No. VV-143.
    District Court of Appeal of Florida, First District.
    June 16, 1981.
    James M. Hess, of Driscoll, Langston, Layton & Kane, Orlando, for appellants.
    Ronald J. Langa, of Maher, Overchuck & Langa, Orlando, for appellee.
   PER CURIAM.

We affirm this compensation order in all respects except for the deputy commissioner’s failure to credit the employer/carrier for the 10 percent permanent disability benefits timely accepted and paid. The order is affirmed in part and reversed in part and remanded to the deputy to amend his order to give the employer/carrier the proper credit.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., (Retired) Associate Judge, concur.


text:
    John D. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-323.
    District Court of Appeal of Florida, First District.
    June 16, 1981.
    John D. Thomas, pro se, for appellant.
    No appearance for appellee.
   PER CURIAM.

Thomas appeals an order denying his motion for post-conviction relief entered without evidentiary hearing. The trial court properly denied Thomas’ motion since the grounds raised therein either were or should have been raised on direct appeal. Thomas v. State, 223 So.2d 318 (Fla.1969); Wedenfeller v. State, 355 So.2d 193 (Fla. 1st DCA 1978); Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978).

AFFIRMED.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Johnny Lee FUTCH, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2139.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Bennett H. Brummer, Public Defender and Harvey S. Swickle, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Appellant seeks reversal of a conviction based upon a jury verdict finding him guilty of second degree murder and unlawful possession of a firearm while engaged in a criminal offense.

It is appellant’s contention that the trial court erred in admitting into evidence photographs of the deceased alleged to be irrelevant and prejudicial.

We have carefully considered the point on appeal in the light of the record and briefs and have concluded that reversible error has not been shown. Mack v. State, 346 So.2d 1229 (Fla., 3d DCA 1977).

Therefore the judgment and sentences are affirmed.

Affirmed.


text:
    Hester BUCKLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-747.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Bennett H. Brummer, Public Defender and Harold Solomon, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Cf. Wingert v. State, 353 So.2d 643 (Fla. 3d DCA 1977); Fla.R. Crim.P. 3.190(h)(4).


author: DANIEL S. PEARSON, Judge.

text:
    Murray LASH, Appellant, v. The STATE of Florida, Appellee.
    No. 79-781.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the trial court’s orders finding Lash guilty and withholding adjudication on five counts of theft by use of false pretenses under Section 812.014, Florida Statutes (1977), and its judgment of conviction for one count of engaging in a scheme to defraud to obtain money by false representations under Section 817.035, Florida Statutes (1977).

The State’s evidence, viewed most favorably to it, was that Lash stated to prospective customers of Hampton Construction, Inc., the company with which he was affiliated, that the company was established in 1955. While in truth and in fact, Hampton Construction, Inc. did not become a corporation until 1977, its predecessor, Jay Hampton Construction Company, an unincorporated proprietorship, was established in 1955. This change in form was, however, totally unrelated to the reputation, good performance record, and stability of the company, the qualities which, according to the customer-witnesses, influenced them in purchasing roof repair contracts. Thus, while it was not true that Hampton Construction, Inc., the corporation, began in 1955, that misstatement was, as a matter of law, immaterial since the company, albeit in another form, had been in operation since 1955, which true fact caused the customer-witnesses to part with their money. While the length of time the company had been in business is most certainly a material fact, the representation of that fact is not materially false.

Lastly, the State argues that Lash’s guilt can be found in the fact that the company guaranteed the roof repair jobs and ultimately became financially unable to stand behind its guarantees. We disagree. A promise to do something in the future, e. g., guarantee a roofing job, will simply not support a conviction for false pretenses, Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980); Paulk v. State, 344 So.2d 304 (Fla.2d DCA 1977); Colangelo v. State, 320 So.2d 826 (Fla. 4th DCA 1975); Waterman v. State, 317 So.2d 469 (Fla. 4th DCA 1975); see Scarlett v. State, 25 Fla. 717, 6 So. 767 (1889), in the absence of evidence that the defendant knew at the time this promise was made that it would not be honored. See McFarland v. State, 368 So.2d 948 (Fla. 4th DCA 1979). There is no such evidence in this record.

Reversed with directions to acquit the defendant.

      . The typical testimony of the customers was:
      “Q: [Prosecutor]: Showing you State Exhibit No. 1, which is the certificate of incorporation indicating that on the 15th of February, 1977, Jay Hampton Construction, Inc. was first incorporated. Would you have done business with them if you had had that document in your possession?”
      * * * * * *
      “A: No.
      “Q: [Prosecutor]: Why not?
      “A: They would not have had a good record, performance record.”
      While the State punctiliously argues that the defendant made a false representation when he said “we” have been in business since 1955, when in fact he, Lash, had not become affiliated with Hampton Construction, Inc. until 1977, no customer testified that this statement or fact played any part in the customer’s actions. Similarly, the State did not show, as it might have, that the defendant misled customers into believing that the company had been in the roof repair business since 1955.

      . While materiality rests upon a factual eviden-tiary showing, where, as with any other factual showing, no reasonable minded fact-finder could conclude that the representation was material, the court is obliged to conclude as a matter of law that the representation is immaterial. United States v. Ven-Fuel, Inc., 602 F.2d 747 (5th Cir. 1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2987, 64 L.Ed.2d 854 (1980); State v. Bingham, 51 Wash. 616, 99 P. 735 (1909); People v. Whiteman, 72 App.Div. 90, 76 N.Y.S. 211 (1902) (false representation with regard to defendant’s true name is immaterial where such falsity is not what deprived owner of property); cf. Ex Parte Stirrup, 155 Fla. 173, 19 So.2d 712 (1944); Green v. State, 76 Fla. 351, 79 So.2d 712 (1918) (information which fails to show materiality, that is, that false statement induced victim, is defective).

      . It is generally stated that to constitute a false pretense, a representation must be one of a material fact, Nelson v. United States, 227 F.2d 21 (D.C. Cir. 1955), cert. denied, 351 U.S. 910, 76 S.Ct. 700, 100 L.Ed. 1445 (1956); 35 C.J.S. False Pretenses § 8 at 816 (1960). Implicit therein is the proposition that the representation must be materially false. Where, for example, the financial condition of a company is concededly a material fact, a false representation concerning that condition cannot constitute a criminal false pretense unless the falsity is itself material. The rule of law, then, is that to constitute a false representation, there must be a material misrepresentation of a material fact.

      . The danger of converting every civil wrong into a larceny by false pretenses makes us require that the State prove beyond a reasonable doubt that at the time the defendant made a promise, he had no intention that it would be performed. See People v. Churchill, 47 N.Y.2d 151, 417 N.Y.S.2d 221, 390 N.E.2d 1146 (1979).


author: SCHWARTZ, Judge.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Francisco MARTIN, as Personal Representative of the Estate of Francisco Martin, Jr., Appellee.
    No. 80-414.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and W. Sam Holland, Miami, for appellant.
    Greene & Cooper and Sharon L. Wolfe and Marc Cooper, Miami, Grover, Ciment, Weinstein & Stauber, Miami Beach, for ap-pellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The insurer appeals from a judgment confirming a $50,000 arbitration award in an uninsured motorist-wrongful death case. We reject each of its arguments for reversal and hold that:

(a) The numerous procedural defects in the arbitration and the circuit court proceedings below did not adversely affect the substantial rights of the appellant so as to interfere with an appropriate determination of the merits, Griffin v. Workman, 73 So.2d 844 (Fla.1954); Rest v. Nathanson, 184 So.2d 690 (Fla. 4th DCA 1966); Section 682.14(1)(c), Florida Statutes (1979);

(b) In view of the clear and unre-butted testimony that a simple mistake had been made, the policy was properly reformed to change the named insured from Felix Martin to Francisco Martin, Sr., the father of the decedent, Francisco, Jr.; Poland v. Phillips, 371 So.2d 1053 (Fla.3d DCA 1979); Boston Old Colony Ins. Co. v. Popple, 305 So.2d 877 (Fla. 1st DCA 1974); see Hanover Ins. Co. v. Publix Market, Inc., 198 So.2d 346 (Fla. 4th DCA 1967); and

(c) Under the applicable pre-.§ 627.4132 law, since Francisco, Jr. was a relative of the named insured residing in his household and therefore a “class one” additional insured, the $15,000 UM limits for the four vehicles so-insured by the policy were correctly stacked for a total of $60,000 in available coverage.

Affirmed.

      . The term “harmless error” may not be properly applied because, while several essentially immaterial flubs were committed by both sides and the arbitrators as well, the only one who did not err, harmlessly or otherwise, was the trial judge. Perhaps a new doctrine of “meaningless mistake” should instead be employed to describe the occurrences below.

      . See Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978).

      . The controlling cases require stacking of coverage afforded either a named or a “class one” omnibus insured, e. g., United States Fidelity & Guaranty Co. v. Curry, 395 So.2d 530 (Fla.1981), and cases cited; Liberty Mutual Ins. Co. v. Searle, 379 So.2d 131 (Fla. 4th DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978), cert. denied, 381 So.2d 764 (Fla.1980), but preclude it as to coverage available only because the claimant is occupying an insured vehicle and is thus a so-called “class two” insured under Mullis v. State Farm Mutual Automobile Ins. Co., 252 So.2d 229 (Fla.1971). Travelers Ins. Co. v. Pac, 337 So.2d 397 (Fla.2d DCA 1976), cert. denied, 351 So.2d 407 (Fla.1977); Marks v. Travelers Indemnity Co., 339 So.2d 1123 (Fla.3d DCA 1976); Hartford Accident & Indemnity Co. v. Richendollar, 368 So.2d 603 (Fla.2d DCA 1979).
      Citing Pac, Marks, and Richendollar, Lum-bermens contends that stacking is never permitted when a “commercial,” as opposed to a “personal,” automobile policy is involved. We do not decide whether the instant policy (which insured, among others, several vehicles used by Martin, Sr. in his landscaping business) may properly be so characterized because the law of stacking draws no such distinction. Neither the nature and purpose of the insured vehicles nor the kind of policy involved makes any difference in deciding the stacking issue. Florida Farm Bureau Casualty Co. v. Andrews, supra (stacking required of coverage provided named insured for six pickup trucks insured in single “fleet" policy); see Cox v. State Farm Mutual Automobile Ins. Co., 378 So.2d 330 (Fla.2d DCA 1980), quoted with approval in Curry, supra. While there are some broad references, particularly in Marks, to the non-stackability of “commercial automobile” policies in general, the results in Pac, Marks, and Richendollar all turn on the fact that, in each case, the named insured was a corporation, and that neither the injured person nor anyone else could therefore qualify as a “class one” additional insured. In this case, in which the named insured is an individual and the claimant a “class one” resident relative, stacking is required.

      . The stacking concept clearly applies not only to separate policies but, as in this case, to the aggregation of the coverage applicable to each of multiple vehicles covered by a single policy. Liberty Mutual Ins. Co. v. Searie, supra; Tucker v. Government Employees Ins. Co., 288 So.2d 238 (Fla.1973); Liberty Mutual Ins. Co. v. Furman, 341 So.2d 1056 (Fla.3d DCA 1977); Florida Farm Bureau Casualty Co. v. Andrews, supra.
      While the stacking of vehicles insured in one policy was precluded by § 627.4132, Fla.Stat. (1977), it has been restored as to UM coverage by Ch. 80-364, Laws of Fla., effective October 1, 1980. See South Carolina Ins. Co. v. Kokay, 398 So.2d 1355 (Fla.1981).


text:
    Melvin TRAVES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-613.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Holland v. State, 129 Fla. 363, 176 So. 169 (1937); Pinder v. State, 396 So.2d 272 (Fla.3d DCA 1981).


text:
    Alvin R. WALTERS, as Personal Representative of the Estate of Mark Walters, Deceased, for and on behalf of the Estate of Mark Walters, Alvin R. Walters, individually, and Durla Walters, Appellants, v. GREENGLADE VILLAS HOMEOWNERS ASSOCIATION, INC., United States Fidelity and Guaranty Company, and F & R Builders, Inc., Appellees.
    Nos. 80-1179, 80-1523.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.

      Gilbride & Heller and Lewis N. Brown, Miami, for appellants.
    Ponzoli & Wassenberg and Richard L. Wassenberg, Wicker, Smith, Blomqvist, Da-vant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The trial court held as a matter of law, in granting the defendants summary judgments, that there was no duty upon the developer of a condominium property or the homeowners’ association to erect a fence or wall between the common area of the condominium and a canal owned by Dade County. We affirm.

In the instant case, the developer had turned over the management of the condominium complex to the homeowners’ association some two and one-half years prior to the five-year-old child drowning in the canal. The child resided in the complex with his parents, whose home was also adjacent to the canal. To hold as the appellant suggests would require every landowner, who owns land adjacent to a canal in Dade County, to construct a fence or wall preventing access to the canal. We do not think that such a duty exists. Brooks v. Peters, 157 Fla. 144, 25 So.2d 205 (1946); Banks v. Mason, 132 So.2d 219 (Fla. 2d DCA 1961); Edwards v. Maule Industries, Inc., 147 So.2d 5 (Fla. 3d DCA 1962); Wingard v. McDonald, 348 So.2d 573 (Fla. 1st DCA 1977); Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981); Cousins v. Yaeger, 394 F.Supp. 595 (E.D.Pa.1975); Corcoran v. City of San Mateo, 122 Cal.App.2d 355, 265 P.2d 102 (1953). It is also doubtful whether the homeowners’ association could have legally fenced off the access to the canal, when it, together with a 25 foot easement running parallel to the canal, was owned by Dade County and the County was to have access to same pursuant to Ordinance No. 2-100(a), Code of Metropolitan Dade County.

Therefore, for the reasons above stated, the summary judgments under review are hereby affirmed.

Affirmed.

      . The record does not disclose how or from where the child entered the canal.

      . Compare: Alves v. Adler Built Industries, Inc., 366 So.2d 802 (Fla. 3d DCA 1979).

      .The cause was at issue and the plaintiff had requested that it be set for trial by appropriate notice prior to the motions for summary judgments.

        See publication Words and Phrases for other judicial constructions and definitions.


text:
    The STATE of Florida, Appellant, v. Pedro MARTINEZ, Appellee.
    No. 80-1582.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.

      No appearance for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

The final order dismissing the information in this cause is reversed and the cause remanded for further proceedings. State v. Yu, 400 So.2d 762 (Fla.1981); State v. Benitez, 395 So.2d 514 (Fla.1981).


author: BASKIN, Judge.

text:
    Jose GIRALDO and Blanca Giraldo, his wife, Appellants, v. Eric COSSIN, Lynn Brock, and Centennial Insurance Company, Appellees.
    No. 80-1746.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Agudo, Pineiro & Kates and Antonio J. Pineiro, Jr., Miami, for appellants.
    Ress, Gomez, Rosenberg & Howland and David R. Howland, North Miami, for appel-lees.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the trial court’s dismissal of the cause for lack of prosecution, first, because the record discloses no “record activity” which would compel us to find error. Despite the fact that the issuance of a pluries summons directed to a third party which appears on the clerk’s docket may be denominated “record activity”, Biscayne Construction Co. v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980), no such “record activity” appears in this proceeding. The unserved alias summons was not filed until after the trial court entered its order of dismissal, and the un-served June 8, 1979 summons, although filed August 14,1979, was not issued during the year preceding the order of dismissal. In its order denying rehearing, the trial court found:

1) A complaint was filed June 8, 1979.
2) A summons was issued on Defendant Brock June 8,1979; returned unserved on June 13, 1979.
3) The Defendant insurance company was served process on June 18, 1979, and a Motion to Dismiss and/or Motion to Stay was filed by said Defendant on June 29, 1979.
4) A summons was issued June 8, 1979 for Eric Cossin and returned unserved June 25, 1979; filed for record August 14, 1979.
5) An alias capias was issued on Defendant Cossin August 14, 1979 and returned unserved on August 27, 1979. The unserved summons was not filed for record until August 11, 1980 — one year after issuance.
6) The Court’s Order of ■ Dismissal was entered on July 28,1980 and filed July 29, 1980.

On those facts, we affirm the dismissal of this cause.

Second, we find no error in the dismissal for lack of prosecution because no good cause was presented to the court explaining why the action should remain pending. Fla.R.Civ.P. 1.420(e). We reject the contention presented by appellants that the mere issuance of the alias summons constituted “record activity” establishing good cause to preclude dismissal. The trial court could not consider items not contained in the record at the time it dismissed the cause and, at the hearing held subsequent to dismissal, appellants could offer nothing to indicate good cause for retaining the action on the court’s calendar. See American Eastern Corp. v. Henry Blanton, Inc., 382 So.2d 863 (Fla. 2d DCA 1980). An action cannot advance toward trial unless the court has jurisdiction over the party sued. The Crouse-Hinds Co. v. Capellia, 302 So.2d 800 (Fla. 4th DCA 1974). We affirm the dismissal.

      . Fla.R.Civ.P. 1.420:
      (e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute. Amended effective Oct. 1, 1968 (211 So.2d 206); Jan. 1, 1977 (339 So.2d 626).
      Committee Note
      1976 Amendment. Subdivision (e) has been amended to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record Non-record activity will not toll the one year time period.
      We recite, with approval, Judge Smith’s prescient analysis of the impact of this Rule in Smith v. St. George Island Gulf Beaches, Inc., 343 So.2d 847 (Fla. 1st DCA 1976):
      It is ironic and perhaps characteristic of human endeavor of this kind that a Rule designed to relieve the judiciary of concern for inactive litigation should itself produce such a spate of litigation, full of labored analyses of activity and nonactivity.
      343 So.2d at 848.


text:
    Paul SAMUELS, Appellant, v. Joyce SAMUELS, Appellee.
    No. 80-1831.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rudolph Browd, Miami, for appellant.
    Stephen H. Butter, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Robert SANETZ, Sr., individually, and as parent and guardian of Christopher Sanetz, a minor, Appellants, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 80-2109.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Begood v. Hartford Accident and Indemnity Company, 384 So.2d 1363 (Fla. 1st DCA 1980).


text:
    Louise JACKSON and United States Fidelity and Guaranty Company, a/k/a U. S. Fidelity and Guaranty Company, Appellants, v. CEDARS OF LEBANON HOSPITAL CORPORATION, a Florida Corporation, Appellees.
    No. 81-317.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.

      George P. Telas, for appellants.
    Jack R. Maro, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The order requiring the defendant Jackson to answer the amended complaint is reversed because service of process, under the long arm statute or otherwise, has not been actually effected upon her. The appellant did not waive this jurisdictional requirement merely by filing an anticipatory motion to dismiss which unsuccessfully (and incorrectly) asserted that the long-arm provisions specifically invoked in the amended complaint could not, as a matter of law, be employed as to the claim in question. See, Huffman v. Heagy, 122 So.2d 335 (Fla.3d DCA 1960).


text:
    HARNESS RACING, INC., a Florida Corporation, Petitioner/Appellant, v. Gary RUTLEDGE, Director, Division of Pari-Mutuel Wagering, and the Division of Pari-Mutuel Wagering of the State of Florida, Respondents/Appellees.
    Nos. 81-659, 81-1001.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    DuFresne & DuFresne and Elizabeth J. DuFresne, Miami, O’Neill, Dyer, Bogner & Larsen, Orlando, for petitioner/appellant.
    David M. Maloney, Tallahassee, for respondents/appellees.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Finding that the agency actions complained of occurred within the 90-day period provided by section 120.60, Florida Statutes (1979), as tolled from February 2, 1981, the date of initiation of proceedings, to March 3, 1981, the date of hearing, we affirm. § 120.68(14), Fla.Stat. (1979).


text:
    MARY CHEVROLET COMPANY, INC., Appellant, v. SOUTHEAST FIRST LEASING, INC., a Florida Corporation, Appellee.
    No. 81-702.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Hoffman & Hertzig and David Hertzig, Miami, Beasley & Wilson, Montgomery, Ala., for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz and J. Robert Olian, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Wilks v. Swift & Co., 382 So.2d 1364 (Fla.1st DCA 1980); Professional Patient Transportation, Inc. v. Fink, 365 So.2d 209 (Fla.3d DCA 1978); Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla.2d DCA 1977).


text:
    Philip E. LEVIN and Selma C. Levin, his wife, Appellants, v. Sanford I. RAKOFSKY, M.D., Humberto A. Gomez, M.D. and Coral Gables Hospital, a Florida Corporation, Appellees.
    No. 80-900.
    District of Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied June 25, 1981.
    Philip E. Levin and Selma C. Levin, in pro. per.
    Preddy, Kutner & Hardy and G. William Bissett, Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, Lee, Schulte, Murphy & Coe, Jupiter, for appellees.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The trial court correctly found that the defendants in this tragic malpractice action had conclusively established their non-liability beyond genuine issue and as matter of law. See Sims v. Helms, 345 So.2d 721 (Fla.1977). Consequently, the summary judgment entered in their favor below is

Affirmed.


text:
    Willie CARTER, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-1986.
    District Court of Appeal of FLorida, Third District.
    June 11, 1981.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on August 14, 1979 reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 397 So.2d 679, by its opinion and judgment filed April 16, 1981 and mandate now lodged in this court quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court, 374 So.2d 1063, entered in this cause on October 5, 1979 is withdrawn, the opinion and judgment of this court filed herein on August 14,1979 is vacated, the said opinion and judgment by the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the circuit court herein appealed is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).