author: NESBITT, Judge.

text:
    Stanford BIRNHOLZ, Appellant, v. Timothy Carl BLAKE, Esquire, Stephens, Magill & Thornton, P.A. and Employers Reinsurance Corporation, Appellees.
    No. 80-174.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied June 25, 1981.
    Richard L. Polin, Fort Lauderdale, for appellant.
    Jeanne Heyward, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Ponzoli & Wassenberg, Alfred D. Bieley, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

The primary question presented is whether there was a triable issue of fact as to whether a former client discovered or should have discovered a cause of action against his former attorneys for their alleged professional negligence. Because we find that there was a triable issue of fact, we reverse the order granting summary judgment and remand the cause for further proceedings.

Birnholz, the appellant, is a certified public accountant and an attorney specializing in taxation. From 1970 to 1976, the appellant shared office space with his former attorneys, the appellees. In 1972, Birnholz retained the appellees to collect fees from Steisel, a client, for services rendered. After non-record activity of more than one year in the Birnholz-Steisel action (Steisel I), Steisel filed a motion to dismiss for want of prosecution. The motion was denied by the trial court but reversed by this court on appeal in Steisel v. Birnholz, 313 So.2d 125 (Fla.3d DCA 1975) on May 20, 1975. On June 18, 1975, petition for rehearing was denied. The Florida Supreme Court denied certiorari on March 9, 1976 [Steisel v. Birnholz, 330 So.2d 14 (Fla. 1976)]. On May 2, 1975, prior to our decision in Steisel v. Birnholz, supra, the appellees reinstituted the litigation for Birnholz by filing a ten-count complaint against Steisel claiming fees and services on various theories (Steisel II). On March 9, 1978, Birnholz commenced this action for professional negligence against his former attorneys, the appellees. The appellees then filed a motion for summary judgment asserting that the action was barred by the statute of limitations and, in the alternative, that Birnholz’ claims as asserted in the second action, Steisel II, are still viable. The trial court granted the summary judgment on the first ground, which is the subject of the main appeal, and denied summary judgment on the second ground, which is the basis for the appellees’ cross-appeal.

THE MAIN APPEAL

It appears that Birnholz performed some services in connection with the Steisel I litigation. He admitted that he was generally aware of the decisions rendered by the courts and the actions taken by his attorney but specifically denied appreciating the legal consequences thereof. In his deposition, he testified that he was assured by the appellees that this court’s decision in Steisel I would be quashed or, in the alternative, that he would be adequately protected by instituting the new action, Steisel II, notwithstanding the defense of limitation.

Appellees attempt to support the summary judgment by contending that the two-year period of limitations, prescribed by Section 95.11(4)(a), Florida Statutes (1977), had already elapsed when Birnholz commenced the professional negligence action on May 9, 1978, whether one considers the statute of limitations to have been activated by our decision in Steisel I on May 20, 1975 or by the denial of rehearing entered on June 18, 1975. The relevant provisions of Section 95.11(4)(a) provide: “that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” This provision has been uniformly construed to mean that “the event which triggers the running of the statute of limitations is notice to or knowledge by the injured party that a cause of action has accrued in his favor, and not the date on which the negligent act which caused the damages was actually committed.” [emphasis supplied] Edwards v. Ford, 279 So.2d 851, 853 (Fla. 1973), adopting (and quoting) Downing v. Vaine, 228 So.2d 622, 625 (Fla.1st DCA 1969); accord, Schetter v. Jordan, 294 So.2d 130 (Fla.4th DCA 1974).

Appellees rely upon our decision in Henzel v. Fink, 340 So.2d 1262 (Fla.3d DCA 1976), cert. denied, 348 So.2d 948 (Fla. 1977). We readily distinguish that decision because there seven years had elapsed after the client had learned everything he was ever going to know about the case and his cause of action was complete. Appellees further rely upon Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972). In Watson, the client’s cause of action against his former attorney was barred by the statute of limitations because the client was aware at the termination of the litigation that the failure on the part of the attorney to call key witnesses, whose names were supplied by the client, caused the entry of the adverse judgment. There, too, the client was fully aware of the attorney’s negligent act at the time the litigation terminated.

In the present case, though Birnholz knew of the existence of our decision in Steisel I which ordered dismissal of his cause of action for want of prosecution, that knowledge alone was not dispositive of the question. Birnholz was only put on notice of the possible negligence of his attorneys and not of his injury or damages. The appellees’ assurances to Birnholz that our decision would be quashed by the Supreme Court (which it was not) or, in the alternative, the reassurances that the action could be successfully reinstituted (Steisel II), over the defense of limitations, only served to allay his concern about actual injuries. It is settled that the essential elements of a cause of action accrue when the last element necessary to constitute the cause of action occurs.

The essential elements of any cause of action, whether derived from tort, contract, or imposed by statute, are the existence of a legal right in plaintiff, with a corresponding duty in defendant, coupled with a violation of that duty which results in injury or damages to the plaintiff.

Heard v. Mathis, 344 So.2d 651, 655 (Fla.1st DCA 1977).

The facts presented in this case are similar to those in Burnside v. McCrary, 382 So.2d 75 (Fla.3d DCA 1980) with the exception that Burnside was a layman while Birnholz is an attorney. In Burnside v. McCrary, the client was reassured by the attorney that the dismissal of his cause of action could be rectified by “the filing of a couple of motions.” There, the court found that the allegations of the attorney’s reassurances to the client were sufficient to create an issuable matter of fact as to whether his malpractice action had yet accrued. Of course, when the matter is returned and ultimately disposed of by the trier of fact: the fact that Birnholz is himself an attorney; that he performed some of the services on his own behalf; and his general knowledge of the foundation facts, most assuredly may be presented to the trier of fact as bearing upon the ultimate issue to be resolved by it as to whether or not Birnholz was on notice or should have been on notice of the appellees’ alleged negligence. Smith v. Hussey, 363 So.2d 1138 (Fla.2d DCA 1978).

THE CROSS-APPEAL

In response to Birnholz’ complaint, the appellees filed an answer containing a general denial as well as an affirmative defense asserting that at the time this action was filed all of Birnholz’ claims against Steisel were still pending in Steisel II. The appellees presented this affirmative defense in their motion for summary judgment which was denied. Consequently, they have cross-appealed this interlocutory aspect of the final judgment which is presented here for review.

Birnholz’ action for malpractice was filed following the termination of the Steis-el I litigation but while the litigation in Steisel II was still pending. The Steisel II action filed on May 2, 1975 contained a ten-count complaint. The trial court entered summary judgment for Steisel and the other defendants as to eight of the counts on the ground that the applicable statute of limitations had expired. This court, in an opinion filed February 24,1981, affirmed the entry of summary judgment as to all but one of the counts. Birnholz v. Steisel, 394 So.2d 523 (Fla.3d DCA 1981). The net effect is that certain of Birnholz’ claims against Steisel and the other defendants are still viable and pending in the Steisel II action. For this reason, we find that the trial court improperly denied the appellees’ motion for summary judgment which was based on the ground that Birn-holz’ claims were still viable and pending and therefore we must also reverse this aspect of the judgment cross-appealed. We do so out of the recognition that should Birnholz ultimately prevail, either in whole or in part against Steisel, the appellees would be in a position to reassert this affirmative defense. It is also pertinent to recognize that because certain of Birnholz’ claims against Steisel are still viable and pending in the trial court, he may never suffer any damage and, consequently, it may be that any cause of action against the appellees has yet to accrue. Heard v. Mathis, supra.

This appeal might have been entirely averted and much trial court litigation avoided had the action been stayed until the final disposition of the Steisel II action. It is understandable that parties, in this zeal, each have a peculiar motive to progress this action, but that alone is not a sufficient reason for the trial court to have accommodated them. That is why trial courts are given great latitude for the management and control of a calendar. After the considerable expenditure of time, effort, fees, and judicial labor, this case is back to Square One.

Reversed and remanded.

      . The applicable two-year period of the statute of limitations for professional malpractice has remained the same throughout the entire period of this controversy.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elsie RAUBFOGEL, Appellant, v. Ruby THOMSON and Debra L. Henderscbeid, Appellees.
    No. 80-2075.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied June 25, 1981.
    Monte K. Rassner, South Miami, and Thomas J. McLaughlin, Miami, for appellant.
    Weissenborn & Burr and Leonard F. Burr, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Fernandez v. Kaba, 360 So.2d 34 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1123 (Fla.1979).


text:
    CITY OF CRESTVIEW, Appellant, v. NORTH OKALOOSA FIREFIGHTERS ASSOCIATION and Alan F. Backs and Public Employees Relations Commission, Appellees.
    No. VV-17.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    Rehearing Denied July 1, 1981.
    Robert L. Norton, Barry J. Warsch and Lewis E. Shelley of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, for appellant.
    Rodney W. Smith, Gainesville, and Steven F. Poche of Cotton, Wesley & Poche, Niceville, for appellees.
   PER CURIAM.

AFFIRMED. The cause is remanded to PERC for consideration of the award of attorney’s fees, including the employer’s contention that the fee was waived by ap-pellees’ failure to file a proposal pursuant to Rule 38D-14.04(3).

ROBERT P. SMITH, Jr., LARRY G. SMITH and JOANOS, JJ., concur.


text:
    Emil MORTON, Trustee, d/b/a Morton Towers, Appellant, v. Leo GOLDMAN, Martin B. Herman, Margaret. Varsa, Jennie Brosten, and Harry Lesser, on behalf of themselves and all others similarly situated, Appellees.
    Nos. 79-1889, 79-1890 and 80-253.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied June 25, 1981.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff and Kenneth L. Ryskamp, Miami, Proby & Adkins, Coral Gables, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Abrams & Abrams, Miami, for ap-pellees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The judgments under review by appeal and cross-appeal in these consolidated cases are affirmed. See Forte Towers, Inc. v. City of Miami Beach, 360 So.2d 81 (Fla.3d DCA 1978), cert. denied, 370 So.2d 459 (Fla. 1979); see also Muss v. City of Miami Beach, 339 So.2d 236 (Fla.3d DCA 1976), cert. denied, 348 So.2d 950 (Fla.1977); Lifschitz v. City of Miami Beach, 339 So.2d 232 (Fla.3d DCA 1976), cert. denied, 348 So.2d 949 (Fla.1977). The contention of the intervening tenants in their cross-appeal that the landlord, who did not file a registration statement pursuant to the provisions of the rent stabilization ordinance, had thereby waived any rights under the ordinance, is rejected in light of the special master’s correct conclusion, adopted by the trial court, that an order entered upon stipulation of the City 'of Miami Beach and the landlord nearly three years before the tenants intervened, which called for the landlord to protect the tenants by posting, which he did, a security bond, supplanted the necessity of registration under the ordinance.

Affirmed.


author: FERGUSON, Judge.

text:
    METROPOLITAN DADE COUNTY and Hill Bros., Inc., Appellants, v. REINENG CORPORATION, a Florida Corporation, Appellee.
    No. 80-1159.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 1, 1981.

      Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., Barry Kutun and Richard I. Blinderman, Miami, for appellants.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Hill Bros., Inc. appeals from an order of the circuit court reversing the decision of the Metropolitan Dade County Commission granting Hill Bros, a use variance to sell alcoholic beverages.

Hill Bros., Inc. had operated a liquor business under the trade name of “Shell City Liquors” at 19152 Collins Avenue. Because this site was subject to condemnation for construction of the 192nd Street Causeway, Hill Bros., Inc. — a lessee — initiated a search for the relocation of its business.

The condemnation for the 192nd Street Causeway eliminated the only existing space in this immediate area in which Hill Bros, could operate without seeking a variance. Hill Bros, found a potential business location at the Thunderbird Shopping Center, 18410 Collins Avenue, about seven blocks south of its former location. On March 7,1979, Hill Bros, applied for the use variance which was granted by Metropolitan Dade County Zoning Appeals Board and approved by the Board of County Commissioners of Dade County.

Appellees, Reineng Corporation, a competitor in the alcoholic beverage business, then petitioned the Circuit Court of the Eleventh Judicial Circuit of Dade County, Florida by writ of certiorari alleging that Hill Bros, failed to demonstrate the hardship required for granting a use variance. The Circuit Court quashed the resolution of the Board of County Commissioners and ordered that the use variance be denied.

The determinative issue on appeal is whether the type of hardship demonstrated by Hill Bros, is legally sufficient to support the grant of a variance. In this context, the more narrow question is whether the hardship shown is mere economic hardship or whether the condemnation proceedings and nature of the business are special conditions resulting in a unique and unnecessary hardship.

Economic disadvantage alone does not constitute a hardship sufficient to warrant the granting of a variance. Burger King Corp. v. Metropolitan Dade County, 349 So.2d 210 (Fla.3d DCA 1977), dismissed, 355 So.2d 512 (Fla.1978); Dade County v. Frank ’N Bun Operating Co., 169 So.2d 875 (Fla.3d DCA 1964). Nor is a self-imposed hardship sufficient grounds for granting a variance. Elwyn v. City of Miami, 113 So.2d 849 (Fla.3d DCA 1959), cert. denied, 116 So.2d 773 (Fla.1959). The general rule is that an applicant for a variance must show that strict application of the zoning ordinance will produce unnecessary hardship with respect to his parcel of land. Crossroads Lounge, Inc. v. City of Miami, 195 So.2d 232 (Fla.3d DCA 1967), cert. denied, 201 So.2d 459 (Fla.1967); Elwyn, supra.

Under the Code of Metropolitan Dade County unnecessary hardship may also be shown if the applicant for a variance proves that the denial of the variance goes beyond reasonable constitutional limits of the police power to protect the public. Although the application of the “palpably arbitrary and unreasonable test ... [showing] no reasonably debatable relation to the public health, safety or general welfare” is normally limited to challenges to the zoning ordinance itself, this test may also be applied in determining whether hardship exists so as to justify a grant of variance. See Dade County v. Pepper, 168 So.2d 198 (Fla.3d DCA 1964).

In Dade County v. Pepper, supra, this court found extreme hardship where owners who had operated a junk yard for many years were forced to move when their location was condemned and where, because of the nature of their business, they could not operate anywhere in the city without a permit granted after a public hearing. The court stated that:

“If the County will not grant a permit for the operation of such business at the location which is the subject of these proceedings, surrounded as it is by other similar types of uses, then there is effectively no location in Dade County which would be approved; neither is there any other location which has been shown to have been available to Petitioners, or which is now available, which would fulfill all of the practical business requirements of such a business.” Id. 168 So.2d at 199.

Denial of variances under these circumstances would be an “exercise of the police power [which] goes beyond that which is necessary to obtain the protection of the public [and] is unreasonable and unconstitutional.” Id. at 200.

In this case, Hill Bros, had operated the liquor business for twenty-six years; it did not choose to move but was forced to move because of condemnation proceedings. Hill Bros, could not move within its prior business vicinity and a move of seven blocks required a variance. Evidence before the Board showed that the proposed location would not change the character of the neighborhood but would, in fact, harmonize with it, that competitors were within one block of the new location, that adjacent property owners supported granting of the use variance to Hill Bros., Inc. and that the Homeowner’s Association unanimously supported the variance. Additionally, the supreme court recognizes that the stringent regulation of the alcoholic beverage industry makes attempts at its relocation particularly difficult. Skaggs-Albertson’s v. ABC Liquors, Inc., supra.

All the evidence which was before the Commission with respect to the loss of established business location by condemnation, nature of the business, the lack of any available area within the vicinity where the applicant could relocate without seeking a variance, and the character of the neighborhood where applicant sought to relocate, sufficiently proved hardship. The Board of County Commissioners could reasonably find that under the circumstances of the case, a denial of Hill Bros.’ application for variance would result in an unreasonable and arbitrary use of the state’s police power. Upon review by writ of certiorari, the circuit court was not permitted to reweigh the evidence and substitute its judgment for that of the County Commission. See Bell v. City of Sarasota, 371 So.2d 525 (Fla.2d DCA 1979).

Reversed and remanded with instructions to reinstate the decision of the Board of County Commissioners.

      . Reineng Corporation has standing to appeal the decision of the Dade County Commission under Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978) and Rayan Corporation, Inc. v. Board of County Commissioners of Dade County, 356 So.2d 1276 (Fla.3d DCA 1978). Metropolitan Dade County, the named appellee in Reineng’s suit in the appellate division of the circuit court, joined part one of the brief of Hill Bros. Inc., intervenor below and here appellant, challenging the standing of Reineng Corporation.

      . Article XXXVI, Section 33-311 of the Metropolitan Dade County Code provides:
      (e)(1) Use variances from other than airport regulations. Upon appeal or direct application in specific cases to hear and grant applications for use variances from the terms of the zoning regulations as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions thereof will result in unnecessary hardship, and so the spirit of the regulation shall be observed and substantial justice done; provided, that the use variance will be in harmony with the general purpose and intent of the regulation, and that the same is the minimum use variance that will permit the reasonable use of the premises ... provided, however, no use variance shall be granted permitting a BU or IU use of any residential, AU or GU District unless the premises immediately abuts a BU or IU District. A “use variance” is a variance which permits a use of land other than which is prescribed by the zoning regulations and shall include a change in permitted density.

      . City of Miami Beach v. Weiss, 217 So.2d 836, 838 (Fla. 1969). See also City of Miami Beach v. Breitbart, 358 So.2d 564 (Fla.3d DCA 1978).

      . Since the “arbitrary and unreasonable” test of hardship is applied only to the individual in granting a variance and does not result in an area rezoning, the granting of the variances upon these grounds is within the authority of the Zoning Board. See, e. g., Clarke v. Morgan, 327 So.2d 769 (Fla.1975). Where the applicant is claiming a hardship unique to herself, she is not required to seek a change of the zoning for the neighborhood. See, e. g., Elwyn, supra 113 So.2d at 851.

      . Article XXXVI, Section 33-313 of the Metropolitan Dade County Code provides for a de novo hearing upon appeal from the Zoning Appeals Board to the County Commission.


author: DANIEL S. PEARSON, Judge.

text:
    Martin Michael PIANTADOSI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1167.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied July 1, 1981.

      Sheldon Yavitz and Paul Stevens, Miami, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Piantadosi was brought to trial on an information charging attempted burglary of a conveyance. The information, in pertinent part, charged that Piantadosi:

“... did unlawfully attempt to enter . .. a certain conveyance, to wit: a 1979 motor vehicle ... [the property of another] with the intent to commit an offense therein, to wit: Theft, and in such attempt did pry hatchback lock of said conveyance, in violation of 810.02 ... Florida Statutes.... ”

The State’s proof at trial showed that the defendant was seen in broad daylight crouched in an office parking lot at the rear of the described vehicle. The owner of the vehicle came out of the office building and confronted the defendant. The defendant denied any wrongdoing and hurriedly departed. A screwdriver was found under the rear of the car, metal shavings were on the rear bumper, and the hatchback lock was “all chewed up.”

At the charge conference, the defendant requested that the court instruct the jury on the offense of tampering with a motor vehicle under Section 860.17, Florida Statutes (1979). The court refused this requested instruction. Piantadosi was convicted of the crime charged, attempted burglary of a conveyance.

Section 860.17, Florida Statutes (1979), proscribes both the offense of tampering and attempting to tamper with motor vehicles. The statute provides, in pertinent part:

“Whoever, without authority, willfully, maliciously, or intentionally tampers with, [or] attempts to tamper with ... any motor vehicle of another .. . which results in the ... contents of such motor vehicle . .. becoming unloaded ... is guilty of a misdemeanor in the second degree .... ” (emphasis supplied).

While the completed crime of tampering would apparently require the actual result that some of the contents of the car be removed or unloaded, a result not shown by the evidence in the present case, we cannot read that requirement into attempted tampering, since to do so would make the attempt to tamper indistinguishable from tampering. It is well settled that a statute must be read, if possible, so as to give meaning to all its parts. State v. Rodriguez, 365 So.2d 157 (Fla.1978); Wilensky v. Fields, 267 So.2d 1 (Fla.1972). To give content to the statutory words “attempts to tamper,” we must read Section 860.17 as meaning that an attempt occurs where there is an act of tampering which does not result in the vehicle becoming unloaded or its contents being removed. Since the act of prying the hatchback lock of the vehicle was charged in the accusatory pleading and proved by the evidence adduced at trial, and since it was alleged that the defendant’s intent was to commit theft, which we read as the functional equivalent of an intent to remove contents or unload the vehicle, attempted tampering was, under Brown v. State, 206 So.2d 377 (Fla.1968), a category four lesser-included offense of the crime charged. It was therefore necessary for the trial court, upon the defendant’s request, to charge the jury on the tampering and attempted tampering offenses defined by Section 860.17, Florida Statutes. See Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978); Brown v. State, supra. Accord, Ross v. State, 373 So.2d 41 (Fla.2d DCA 1979).

This brings us to the question whether the failure to give this instruction may be considered harmless. The crime for which Piantadosi was convicted, attempted burglary of a conveyance, is a third-degree felony. See State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla.3d DCA 1977). There being no lesser offense classified as a first-degree misdemeanor, the offense of tampering-attempted tampering, a second-degree misdemeanor, is the offense one step removed from the offense for which the defendant was convicted. It was thus per se reversible error to refuse to give the instruction requested by Piantadosi. Reddick v. State, 394 So.2d 417 (Fla.1981); Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980); Butler v. State, 379 So.2d 715 (Fla. 5th DCA 1980). Compare State v. Abreau, 363 So.2d 1063 (Fla.1978). See also Williams v. State, 399 So.2d 999, 1003 n.10 (Fla.3d DCA 1981). We are compelled to reverse the defendant’s conviction and remand for a new trial.

      . Generally, where an attempt is proscribed only by the attempt statute, Section 777.04, Florida Statutes, it is a crime of a lesser degree than the completed crime. In Section 860.17, Florida Statutes, the legislature chose to punish the attempt to tamper in the same manner as the completed crime of tampering, a choice within the legislative prerogative. See State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla.3d DCA 1977), and Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977), (within province of legislature to provide that third-degree burglary and attempted third-degree burglary be punished as third-degree felonies). See also Milazzo v. State, 377 So.2d 1161 (Fla.1979); Miles v. State, 374 So.2d 1167 (Fla.2d DCA 1979); Hestor v. State, 363 So.2d 26 (Fla. 4th DCA 1978) (addressing other statutes which proscribe both the completed crime and the attempt, and holding that since there cannot legally be an attempt to attempt, no instruction under the general attempt statute is required).

      . In other instances where the crime is defined in terms of a result, Florida courts have found an attempt to be a crime. See, e. g., De la Cova v. State, 355 So.2d 1227 (Fla.3d DCA 1978) (affirming judgment of conviction for attempted second-degree arson, notwithstanding that second degree arson requires proof of damage to a structure); State v. White, 324 So.2d 630 (Fla.1976); Hall v. State, 354 So.2d 914 (Fla.2d DCA 1978) (attempted assault is offense, notwithstanding that assault requires proof that victim was placed in fear of imminent violence).

      . “If the offense attempted ... is ... any burglary, the person convicted shall be guilty of a felony of the third degree . . .. ” § 777.04(4)(c), Fla.Stat. (1979).

      . The State contends that because Piantadosi did not request an instruction on trespass, which crime the State argues is a lesser-included offense of attempted burglary, he cannot complain of the failure to give the tampering charge. Tampering with and trespass on a conveyance are both second-degree misdemeanors, and thus, the same level crime. The Florida Supreme Court’s decision in Reddick v. State, supra, makes clear that even if the trial court gives an instruction on an offense one step removed, the failure to instruct, upon the defendant’s request, on another offense one step removed from the offense for which the defendant was convicted, is per se reversible. Hunter v. State, supra. The State seemingly argues that unless a defendant requests an instruction on every one-step removed offense, he cannot complain of the failure of the court to give a requested instruction on one of these offenses. The argument is unsound. The failure to request an instruction as to one offense (here trespass) can only be deemed a waiver of entitlement as to an instruction on that offense, not others. Moreover, without deciding the issue here, we note that while trespass is a lesser-included offense of burglary, see Butler v. State, supra, it is doubtful that trespass is a lesser-included offense of attempted burglary, since trespass requires entry and attempted burglary presupposes an unsuccessful entry.


text:
    Harry BARKETT, Petitioner, v. The HOTSY CORPORATION, a Florida Corporation, and any and all persons claiming any right, title or interest in and to Stock Certificate No. 1789 of Spray Painting Co., a Florida Corp., Respondent.
    No. 81-186.
    District Court of Appeal of Florida, Third District.
    May 26, 1981.
    Rehearing Denied June 25, 1981.
    Robert M. Brake, Coral Gables, for petitioner.
    Steel, Hector & Davis and Judith M. Kor-chin, Miami, for respondent.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Harry Barkett sued The Hotsy Corporation alleging, in pertinent part, that in 1969 the corporation issued and delivered to him a stock certificate representing 40,000 shares of stock in said corporation, that he was unable to locate the certificate and believed it to be lost or destroyed, that at some later time unknown to him the corporation received the missing certificate, and registered the shares to another despite the fact that the certificate neither bore nor was accompanied with the necessary in-dorsements authorizing its transfer.

According to an affidavit submitted by Hotsy, its records reflected that the certificate in Barkett’s name was transferred to a certificate issued and registered to H. B. & S., Inc., and Barkett’s certificate cancelled. Upon Hotsy’s motion, the trial court dismissed Barkett’s complaint because of his failure to join H. B. & S., Inc., deemed by the trial court to be an indispensable party. Barkett seeks review of this order by certio-rari.

We grant Barkett’s petition for certiorari and quash the order under review upon a holding that under Barkett’s claim that he is the true owner of a certificate of stock which was transferred and registered to H. B. & S., Inc. by Hotsy in alleged violation of Section 678.404(l)(a), Florida Statutes (1979), see n. 1, supra, H. B. & S., Inc. is not an indispensable party to the action between Barkett and Hotsy since (a) no interest of H. B. & S., Inc., the absent party, will be determined by any judgment rendered in favor of Barkett, who, were he to establish the wrongful registration, would be entitled to the delivery by Hotsy of a like security (not that issued to H. B. & S., Inc.) see § 678.404(2), unless such delivery would result in over-issue, in which case he would be entitled to alternative remedies against Hotsy provided by Section 678.104, Florida Statutes (1979), compare National Title Insurance Company v. Oscar E. Dooly Associates, Inc., 377 So.2d 730 (Fla.3d DCA 1979) (where in order for sellers/broker to recover escrowed money it is necessary to establish that purchaser was disentitled to money because of purchaser’s default, purchaser is indispensable party), and Martinez v. Balbin, 76 So.2d 488 (Fla.1954) (defendant’s assignee indispensable where claim to the res would be foreclosed by litigation between plaintiff and defendant), with Ossinsky v. Nance, 118 So.2d 47 (Fla. 1st DCA 1960) (where in order for prospective purchaser to recover money from escrow agent, there being no right in seller, in any event, to forfeiture of the deposit, seller is not indispensable party); (b) the non-joinder of H. B. & S., Inc. is not, in our view, inconsistent with equity or good conscience, since the interest of H. B. & S., Inc. in its certificate of stock is not only unaffected by the outcome of the dispute between Barkett and Hotsy, but, moreover, an action, if one should occur, between either Hotsy or Bark-ett and H. B. & S., Inc., could not produce a result inconsistent with the present action, compare Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972) (insured is indispensable where insurer’s liability dependent on insured’s liability, and, presumably, conflicting results in separate actions could occur). See generally 3 Moore’s Federal Practice ¶ 19.07(1) (2d ed.1979); and (c) Hotsy’s apparent contention that since H. B. & S., Inc. is the only owner shown on Hotsy’s books, Barkett is therefore not an owner and cannot obtain relief under Section 678.404, Florida Statutes (1979), without the joinder of H. B. & S., Inc., is particularly unimpressive, since Section 678.404 contemplates that the true owner mentioned therein is not a presently registered owner shown on the books of the issuer.

Certiorari granted; the order dismissing the amended complaint is quashed.

      . Section 678.404, Florida Statutes (1979), provides:
      “Liability and nonliability for registration.— “(1) Except as otherwise provided in any law relating to the collection of taxes, the issuer is not liable to the owner or any other person suffering loss as a result of the registration of a transfer of a security if:
      “(a) There were on or with the security the necessary indorsements (s. 678.308); and
      “(b) The issuer had no duty to inquire into adverse claims or has discharged any such duty (s. 678.403).
      “(2) Where an issuer has registered a transfer of a security to a person not entitled to it the issuer on demand must deliver a like security to the true owner unless:
      “(a) The registration was pursuant to subsection (1); or

        “(b) The owner is precluded from asserting any claim for registering the transfer under s. 678.405(1); or
      “(c) Such delivery would result in overis-sue, in which case the issuer’s liability is governed by s. 678.104.”
      it is clear that subsection (l)(b) is triggered only if subsection (l)(a) is first satisfied. See Cohen v. Bankers Trust Co., 445 F.Supp. 794 (S.D.N.Y.1978). If the transfer of Barkett’s security were registered despite the absence of necessary indorsements, Hotsy would be liable to Barkett unless Barkett were precluded by subsection (2)(b). Thus, under Barkett’s complaint, subsection (l)(b), which could implicate an adverse claimant, can never be operative.

      . We do not pass on the merits of Barkett’s claim or other defenses raised by Hotsy not yet ruled on by the trial court.

      . Section 678.104, Florida Statutes (1979), provides:
      “Effect of overissue; ‘overissue.’—
      “(1) The provisions of this chapter which validate a security or compel its issue or reissue do not apply to the extent that validation, issue or reissue would result in overis-sue; but:
      “(a) If an identical security which does not constitute an overissue is reasonably available for purchase, the person entitled to issue or validation may compel the issuer to purchase and deliver such a security to him against surrender of the security, if any, which he holds; or
      “(b) If a security is not so available for purchase, the person entitled to issue or validation may recover from the issuer the price he or the last purchaser for value paid for it with interest from the date of his demand. “(2) ‘Overissue’ means the issue of securities in excess of the amount which the issuer has corporate power to issue.”


author: BERANEK, Judge. SIMONS, STUART M., Associate Judge,

text:
    DANIELI CORPORATION, Appellant, v. A. Parker BRYANT, and Robert C. Scott and Thomas A. Grier, as co-personal representatives of the Estate of Robert W. Grier, deceased, Appellees.
    No. 77-2164.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    George H. Bailey of Jones & Foster, P. A., West Palm Beach, for appellant.
    Coe & Broberg, Palm Beach, Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., and Larry Klein, West Palm Beach, for appellees.
   On Rehearing

BERANEK, Judge.

Defendant appeals a final judgment entered after non-jury trial which awarded plaintiff/brokers approximately $400,000 as the commission on the sale of a parcel of land. This award represented approximately a ten per cent commission on the sales price. Defendant/appellant contends that plaintiff was not the procuring cause of the sale and that seller did not agree to pay a ten per cent commission. We affirm the trial court.

In the Spring of 1975, Charles Vavrus, a wealthy Illinois businessman, contacted real estate salesman, George Dempsey, regarding a tract of land listed with A. Parker Bryant, real estate broker. Dempsey worked for Bryant. At approximately the same time, Joel Martino as president of Danieli Corporation contacted Bob Grier, another broker, regarding the sale of acreage owned by Danieli. This property was encumbered by several large mortgages and a payment in excess of $1 million was due July 26, 1975.

Sometime in August, broker Dempsey, thinking of businessman, Vavrus, contacted broker Grier inquiring whether Grier knew of any good deals. Grier mentioned the Danieli property noting that the mortgages were in danger of default. Up to this point, Grier had been personally interested in purchasing the property and had not apparently obtained a formal listing agreement from Danieli.

Shortly thereafter, Dempsey informed Grier that he would produce his prospective purchaser if Grier obtained a listing agreement providing for a ten per cent commission to A. Parker Bryant, Dempsey’s employer.

In late August, Grier went to Danieli to obtain a signed listing agreement and informed Joel Martino, Danieli’s president, that Parker Bryant wanted a ten per cent commission. Martino stated he did not care how much commission Bryant wanted insisting only that he, Martino, wanted a net figure for the property. A draft listing of sorts was then prepared and given to Grier. Martino inserted the word “net” by the total selling price which was initially stated as $5,000,000. The listing was then amended to show a sale price of $5,500,000. The seller and broker understood broker would retain this additional $500,000 as a commission. The only thing actually stated in the document was that the “commission shall be added to sale price.” The term of the listing was ten days. This document was delivered to Parker Bryant and signed by him.

Over the next week, there was a flurry of meetings and negotiations. The brokers showed Vavrus the property including a helicopter flight over it. Other technical information was obtained for Vavrus. Vavrus showed interest and before returning to Illinois, he indicated he would send a representative down.

Two of Vavrus’ employees arrived on September 2, 1975, and were met by the brokers. This group then met with representatives of Danieli, including Joel Marti-no. The Vavrus’ representatives said the price was too high; commissions were not discussed. The same group met the next day and Martino was firm as to price. Bryant told Martino several times that the brokers expected a ten per cent commission. Martino replied he did not care as long as Danieli got its net figure or $5,000,000. Two days later, on September 5, the group again met and the Vavrus representatives offered $4,706,583, with certain other conditions. The Danieli representatives rejected the offer.

About a week or so after this meeting, Bryant called Danieli to determine whether the brokers still had a listing on the property though the ten-day period in the written listing had actually expired on September 4. Bryant was informed he still had a listing and to continue working on the sale.

There were no further meetings between the brokers and Vavrus although Bryant’s office did call Vavrus six times between the September 2 meeting and December 1. They were trying to interest him in other properties and there was testimony at trial that the Danieli property was mentioned. The Vavrus representatives indicated they were waiting for Martino to come down having made an offer.

Bryant also called Danieli several times after the meeting and Martino indicated he was waiting for Vavrus to increase his offer. There was some direct contact between Danieli and Vavrus by phone in September and a call from Martino to Vavrus in early October. In the latter call Martino made several concessions which did not satisfy Vavrus.

On October 3 a suit to foreclose the mortgages on the Danieli property was filed. At this point Danieli decided, allegedly for tax reasons, that it must get rid of the property by the end of the year. Danieli made several unsuccessful attempts to get rid of the property and finally offered it to Vavrus at slightly under $4,000,000 or approximately $700,000 less than Vavrus’ offer of September 5. Vavrus, not surprisingly, agreed and a closing took place on December 19, 1975.

Grier and Bryant demanded a commission on the above sale and subsequently filed suit. The complaint alleged that Bryant had a written listing from Danieli thereby obligating Danieli to pay the customary fee of ten per cent. After expiration of the written listing, it was alleged the brokers brought buyer and seller together and were responsible for the sale.

The trial court found that Danieli knew a ten per cent commission was customary and that plaintiff brokers were entitled to a ten per cent commission based on the implied terms of an oral contract made with sellers shortly after September 5, 1975. This oral contract arises from Danieli’s statement to Bryant that they still had a listing and could keep working towards a sale.

Danieli appeals arguing that the brokers were not the procuring cause of the sale and that Danieli did not agree to pay a ten per cent commission.

First of all, we agree, with the statement found at Annot. 46 A.L.R.2d 852:

The general proposition is well established that if property is placed in the hands of a broker for sale at a certain price, and a sale is brought about through the broker as a procuring cause, he is entitled to commissions on the sale even though the final negotiations are conducted through the owner, who, in order to make a sale, accepts a price less than that stipulated to the broker. The law will not allow the owner of property sold to reap the fruits of the broker’s labor and then deny him his just reward.

As stated by the Florida Supreme Court in Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 878 (Fla.1944), and reaffirmed in Estes v. Moylan, 94 So.2d 362 (Fla.1957):

If the broker has brought the parties together and a sale is effected as a result of continuous negotiations inaugurated by him, he will not be defeated in his effort to recover compensation simply because of a variation between the original terms stated by the owner and those finally accepted.

Although the trial court made no specific findings of continuing negotiations or that broker was the procuring cause, these are implicit in the judgment and we find sufficient evidence in the record to support both.

This appeal would be an obvious affirmance if the suit below had been one specifying quantum meruit as the theory of recovery. The broker would clearly be entitled to a commission representing the reasonable value of his services and there was adequate evidence that a ten per cent commission was reasonable. Although the trial court’s ruling was based on implied contract rather than quantum meruit, we conclude the distinctions between these theories of recovery are not crucial in this case.

Appellant argues the record demonstrated the seller, Martino, was adamant in his position that brokers would receive a commission of anything above a $5,000,000 net to the seller. We must, however, conclude that Martino abandoned this position when he told the brokers to keep working towards a sale and then suddenly sold the property to Vavrus at a price $700,000 less than the offer which Bryant and Grier had obtained. In so doing, it seems clear Marti-no frustrated the brokers’ chances of making a commission even under the $5 million net scheme. They had an opening bid of $4.7 million on a $5.5 million opening offer and could with concessions from the seller have possibly upped buyers’ offer beyond the opening bid. There can be little argument that Martino’s insistence on $5 million net was totally abandoned when he sold for $4 million.

This case is unlike Foley-Carter Insurance Company v. Commonwealth Life In surance Company, 128 F.2d 718 (5th Cir. 1942), where a sale by owner at $215,000 to purchaser to which broker had offered the property at $350,000 did not support the conclusion that broker was the procuring cause. Here, buyer first made an offer which seller subsequently undercut. We frankly admit that this case does not clearly come within any of the precedents nor do any of the standard theories seem applicable. We have found no reported decision where a broker produces a purchaser and an offer close to the demand only to sit by and watch while the seller drastically reduces his demand below the offer in direct dealing with the same buyer. Selling property at a price substantially below what a purchaser offers is abnormal business. Here the trial court, having seen the witnesses and heard their testimony, found an implied agreement to pay a ten per cent commission which was the reasonable value of the brokers’ services under these rather strange circumstances. This conclusion is to be presumed correct on review before this court.

The only documentary evidence (the listing agreement) is consistent with this because it provided a $500,000 commission on a $5,000,000 net to the seller.

Having waived or abandoned the initial terms calling for a $5.5 million sale and $5 million net, the seller was obligated for a reasonable commission when he sold to a purchaser procured by Bryant and Grier. There was evidence that seller knew a ten per cent commission was customary and he impliedly agreed to so compensate the brokers. We affirm the trial court in this regard. Appellant raises several other points on appeal which we do not believe have merit.

AFFIRMED.

ANSTEAD, J., concurs.

SIMONS, STUART M., Associate Judge, dissents with opinion.

SIMONS, STUART M., Associate Judge,

dissenting:

I respectfully dissent. On the basis of the facts the trial court found that an implied brokerage contract existed between the owner and the broker and that there was an implied term within this contract to pay a 10% commission on the gross sales price of the property. The court found the gross sales price to be approximately $4,000,000 and awarded a brokerage commission in the approximate amount of $400,000. The trial court’s judgment specifically found the 10% was an implied term of an oral agreement between the parties.

The crucial issue is the sufficiency of the evidence to support the finding of a 10% commission based upon an oral agreement between the parties. It is clear that prior to the phone call in which an “open listing” was discussed, the seller would not agree to a 10% commission despite the fact that both seller and broker knew broker wanted such commission. The original written listing did not state the commission to be 10%. The contract was effective for only ten days during which time the seller was to receive a $5,000,000 net figure. If the broker could secure a buyer at the price of $5,500,000, he would in fact have made his 10% commission. It is this key element of the eventual implied contract for which I find insufficient support in the evidence. The parties had not agreed to a 10% commission in the negotiated written contract. I believe the trial court erred in finding such a term by implication based solely on the phone conversation in which the parties discussed an “open listing.” In short, if the seller did not agree to pay a 10% commission in the written contract, then such a commission should not have been implied after expiration of the written contract. At most, under the circumstances here, the implied terms might have been equal to the written contract but not substantially superior to it.

Appellee argues that 10% commissions are customary. There is adequate evidence supporting the plaintiff’s contention that the defendant/seller was aware that brokers customarily receive 10% commissions in such sales. However, I find no evidence to support anything beyond mere knowledge on seller’s part. There is simply nothing in the record to support a finding that seller ever expressly or impliedly agreed to this 10% commission even though it may well have been the custom.

This case was not a suit to recover on a theory of the reasonable value of the services rendered. The pleadings and the briefs do not assert any cause of action based on quantum meruit. This was clearly a suit for breach of contract and the trial court so held by finding a specific oral contract. In situations involving quantum meruit, the law would imply that the broker be compensated for the reasonable value of his services. However, the plaintiff did not sue on this theory, the issue was not tried by consent and the defenses to such a cause of action are different in an action based on quantum meruit. The court below did not award a judgment based upon reasonable value of the broker’s services but instead did so on the basis of an oral contract with an implied term for a 10% commission. Clearly, a party cannot recover on the inconsistent theories of breach of contract and quantum meruit. Proof of an express agreement defeats rather than sustains an action based on quantum meruit. Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971), and Tobin and Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975). Here, plaintiff proved at most the continued existence of the contract originally agreed upon. This prevents recovery on a quantum meruit.

I would reverse the judgment herein.

      .The written listing provided as follows:
      OFFER
      PROJECT 5000
      PROPERTY DATA:
      Total Acreage 4,744.464 acres
      Selling Price for Parcel 1 & 2 $2,500,000
      Selling Price for Parcel 3 & 4 $2,500,000 3,000,000
      Total Selling Price (Net) $5,000,000
      Average Selling Price Per Acre $1,047.24
      NOTE AND MORTGAGE DATA:
      One note and mortgage for each parcel in the amount of $ 954,893.00
      Total Notes and mortgages 3,819,572.00
      Terms of Mortgage:
      1. Interest payable at 7.5% semi-annually on July 26 and January 26 of each year on outstanding principal.
      2. Principal payable on July 26, 1975 on each note in the amount of $238,723.25, for a total principal payment of $954,893 annually and each year thereafter until paid in full (1978).
      Terms of Sales:
      1. Assume existing mortgage plus interest from July 26, 1975, plus accrued taxes for 1975. (Taxes paid 1974 — $32,744.10)
      2. $100,000 earnest money deposited at time of contract to be applied at closing to purchase price (adjusted pro rata by parcel purchased)
      3. $1,180,428 at closing (adjusted by earnest money deposit).
      4. Commission shall be added to sales price.
      5. Offering shall be subject to terms and conditions of mortgage.
      6. Offering shall terminate ten days from this date or upon notice of mortgageholders to exercise option to accelerate mortgage, whichever is sooner.
      7. Property shall be taken subject to existing options for purchase of two each one hundred acre tracts (plus or minus) located in section 14, more specifically described in the attached legal description.
      8. Seller assumes no liability of any nature whatsoever should an agreement be entered into and not closed due to the terms and conditions of the existing mortgage.
      The terms and condition of this offering are accepted this 25th day of August, 1975.
      /s/ A. Parker Brvant
      Parker Bryant


author: HURLEY, Judge. MOORE, Judge,

text:
    Virginia S. PADRICK, Appellant, v. Robert W. PADRICK, Appellee.
    No. 79-622.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Rehearing Denied July 7, 1981.

      Jerry E. Rose, West Palm Beach, for appellant.
    Roger G. Orr of Gilbert, Dorfman & Orr, Fort Pierce, for appellee.
   HURLEY, Judge.

Appellant/former-wife appeals an order terminating alimony. Since the testimony indisputably establishes that the former-wife continues to need alimony and that her former-husband retains sufficient assets to meet her needs, we reverse the order of termination.

Robert and Virginia Padrick were divorced in 1970 after nineteen years of marriage. The final judgment of dissolution incorporated a stipulated agreement that Mr. Patrick pay permanent alimony in the sum of $550.00 per month. In mid-1972, however, Mr. Padrick ceased making regular alimony payments and this caused Mrs. Padrick to expend funds which she had received from the sale of the marital home. As an additional consequence of Mr. Padrick’s cessation of alimony, appellant sought and obtained a judgment for arrearages in the sum of $63,429.00.

In 1978, Mr. Padrick filed a petition to modify, requesting that alimony be eliminated. The testimony offered in support of his petition revealed that in 1970, at the time of the divorce, his salary was $750.00 per month. In 1978, at the time of the modification hearing, his salary had risen to approximately $1,200.00 per month. He and his second wife are residing in a home which Mr. Padrick inherited after the divorce and which, with improvements, has a fair market value of $250,000.00. The following table reflects Mr. Padrick’s annual salary together with valuation sums which he listed in various statements:

Year Salary Real Estate Holdings Net Worth
1972 $418,000 $327,830
1973 $15,000 $359,900 $459,111
1974 $15,600 $567,000 $654,000
1975 $12,249 $731,000 $709,000
1976 $19,418
1977 $40,000 $624,000 $554,000
1978 $17,046 $ 39,789

On the negative financial side, Mr. Pa-drick testified that he had suffered business reverses and was severely in debt. Indeed, he stated that he was incurring a weekly net loss of $700.33. After recapitulating the former-husband’s financial situation, the trial court offered this evaluation:

[T]he Petitioner (former-husband) showed that the principal source of his livelihood is as a real estate salesman and that as such, it is absolutely essential for a real estate salesman to have a proper automobile, good clothing, be able to properly entertain clients and customers and socialize in the proper circles in aid of his business. Thus, the Petitioner would naturally incur greater expense than one not so employed.

Turning now to the former-wife’s situation, we find that she was last employed during the early days of the marriage; thereafter, she worked as a mother and homemaker. The only testimony as to her health and job skills, came from her former-husband:

Q. Did you have a chance to talk with her personally outside of the courtroom, I’m talking about?
A. Yes, sir, in the hall.
Q. How was her health?
A. She said it was good.
Q. Of your own knowledge, does Virginia have any past work experience?
A. Yes, sir, when we married in Chapel Hill she was employed by the University as a secretary. She previously was the secretary for a senator.
Q. Is that a United States Senator?
A. Yes.
Q. Was she able to type?
A. Yes, sir.
Q. What kind of work did she do for the University of North Carolina?
A. Secretarial.
Q. Is her hand or anything — her hands or arms afflicted with arthritis, to your knowledge?
A. Not to my knowledge. (Tr. 25).

As part of the divorce settlement, the former-wife received the marital home. She realized $30,000 from its sale. However, since appellee ceased making regular alimony payments in mid-1972, appellant was required to expend all but $2,000 of her savings to support herself. Today, her only source of income is approximately $400.00 per month which she receives from her mother’s estate and which is due to terminate at some point in the future. The trial court characterized the former-wife’s situation in this manner:

Virginia S. Padrick, is not gainfully employed though evidence showed that at the date of her marriage to Petitioner, she was a capable secretary.... [I]f the Wife worked and provided income for herself, her needs would be commensurately lower.... [T]he Wife has not done her full part and could have by becoming gainfully employed. In this case, the evidence may be interpreted to show that the Respondent (former-wife) was in a better financial position than the Petitioner, in that, the Respondent is without debt and has relatively low expenses and still has approximately $2,000.00 in savings. In addition, she is seeking a judgment for arrearage in alimony and child support, and such sums are by law held by the courts to be vested, and which will thus increase her net worth by the amount of such arrearage, as determined by this Court in a separate proceeding.

In summary then, the trial court terminated permanent alimony on the finding that although the former-husband has increased his earnings and lives comfortably, he is saddled with substantial debts. On the other hand, the former wife, though unemployed for the last twenty-seven years, is free from debt, has $2,000 in savings and has a “vested judgment” against the former-husband for $63,492.00. Thus, the trial court found that there had been a substantial change in circumstances sufficient to justify termination of alimony. We respectfully disagree.

The law on modification of alimony is simple and well understood. “The necessary prerequisite for the modification of alimony... is a showing of substantial change of circumstances, including financial circumstances, of one or both of the parties.” Meltzer v. Meltzer, 356 So.2d 1263, 1265 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979); see also Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977); Taplin v. Taplin, 341 So.2d 1064 (Fla. 3d DCA 1977). We are cognizant that with respect to alimony, the designation “ ‘permanent’ is not necessarily synonymous with ‘forever’ ”, Ruhnau v. Ruhnau, 299 So.2d 61, 65 (Fla. 1st DCA 1974), and that ultimately, the determination to grant or deny modification of alimony is a matter entrusted to the sound discretion of the trial court. Feldman v. Feldman, 317 So.2d 136 (Fla. 3d DCA 1975).

Considering these principles with the facts in the case at bar, we are compelled to conclude that the trial court abused its discretion by terminating all alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). The record is silent on whether the former-wife currently has employable skills and whether there exists a market for those skills. Absent such proof, the suggestion that she has “not done her full part,” or that she has the capacity to become “gainfully employed” is sheer speculation; to penalize her without such proof is plainly error. Furthermore, it is also erroneous to credit her with a judgment or future expectancy which has not been realized. Cf. McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979).

Clearly, a substantial change in circumstances on the part of one of the parties can be sufficient to justify a modification of alimony. Meltzer v. Meltzer, supra. Nonetheless, we hold that under the facts of this case, the former-husband’s indebtedness does not constitute a substantial change so as to permit the termination of all alimony. Even with his debts and the inexplicable drop in net worth from $554,000 in 1977 to $39,789 in 1978, appellee is better off today than he was at the time of his divorce. Despite his claim of a $700.33 weekly deficit, he is far from destitute. He resides in a quarter of a million dollar home and as noted by the trial court, appellee drives “a proper automobile, [has] good clothing,. .. [is] able to properly entertain clients and customers and socialize in the proper circles .... ” Irrespective of whether one characterizes this life-style as a blatant example of “keeping-up-with-the-Joneses” which appellee can ill afford, or, as “necessary business expenses,” one thing is certain: it cannot be used to rationalize the complete abandonment of his legitimate responsibilities to his former-wife. She has survived thus far on a frugal existence with virtually no aid from her former-spouse; given the facts of this case she is legally entitled to continued support. Accordingly, the provision terminating alimony is reversed.

BERANEK, J., concurs.

MOORE, J., concurs with opinion.

MOORE, Judge,

specially concurring:

I specially concur in this result because I am compelled to observe that, in my opinion, the reversal of the termination order does not preclude the trial court’s consideration of a reduction in the amount of alimony. The appellee sought alternative relief: absolute termination of alimony or reduction. It does not appear that reduction was considered by the court because of his finding that the termination was appropriate. As I view the meager evidence, at least some reduction is in order. Accordingly, I would remand for further consideration.

       Monies earned from January through November, 1978.


text:
    Raleigh L. BORDEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-849.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Rehearing Denied June 10, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1981).

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


text:
    Arthur Tony LANCASTER, Appellant, v. STATE of Florida and James Willie Norman, Appellees.
    No. 79-2344.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellees.
   PER CURIAM.

Affirmed on authority of Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1981).

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Robert Earl CESSNA, Appellant, v. STATE of Florida, Appellee.
    No. 80-1091.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1981.
    Patrick C. Rastatter and Stuart A. Tar-lowe of Glass, Rastatter, Stark & Tarlowe, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY, J., and WARREN LAMAR, Associate Judge, concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I would vacate the judgment and sentence because the jury convicted defendant of both possession and sale of the same drug in the same count. The trial court entered judgment and sentence on the sale charge, and I conclude that same is error.


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

text:
    Jerry JETTON, Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, Appellee.
    No. VV-212.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Rehearing Denied July 1, 1981.
    Robert L. Cowles and James R. Barfield, of Cowles, Coker & Myers, Jacksonville, for appellant.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Gen. Counsel, City of Jacksonville, Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Jetton, injured when building materials he was carrying touched a JEA electrical transmission line, appeals a circuit court decision that Section 768.28(5), Florida Statutes (1977), constitutionally imposes a monetary limit on governmental tort liability. Appellant argues that the statute violates constitutional guaranties of redress for injury, equal protection, and due process, among others. We find no unconstitutional infringement of these rights in a statute altering the common law to enhance the overall protection available now to victims of governmental torts. We affirm.

Section 768.28 waives sovereign immunity to tort claims against the state and its subdivisions in cases where a private person would be liable. While exposing those governmental units to substantially broadened liability for their torts, the legislature at the same time placed limits on recovery of $50,000 per individual and $100,000 per incident and noted that claimants remain free to seek legislative relief bills, as they did during days of complete sovereign immunity. In 1977, the legislature further amended Section 768.28(5) to make clear that the waiver and new recovery limits applied to tort actions growing out of “proprietary” as well as “governmental” functions of municipalities. Traditionally, no sovereign immunity attached to proprietary functions; a municipal corporation, like any other corporation, was deemed to act in proprietary matters for private, not public, benefit. E. g., Chardkoff Junk Co. v. City of Tampa, 102 Fla. 501, 135 So. 457 (Fla.1931). Use of the “proprietary function” test to determine the existence of municipal sovereign immunity, long subject to criticism, was laid to rest in Florida by Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

We cannot accept appellant’s threshold contention that JEA is not entitled to the Section 768.28(5) limitation on recovery because it is not a municipal agency. We agree with JEA that it is a governmental unit, an electric utility operated by the City of Jacksonville. Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81 (Fla. 3d DC A 1975); Amerson v. Jacksonville Electric Authority, 362 So.2d 433 (Fla. 1st DCA 1978). The waiver of sovereign immunity under the statute clearly extends to units that, like JEA, are “primarily acting as instrumentalities or agencies of .. . municipalities.” Fla.Stat. § 768.28(2) (1977).

Mindful of the presumption that legislative enactments are constitutional, e. g., Cilento v. State, 377 So.2d 663 (Fla.1979), we turn to appellant’s argument that the legislature impermissibly abolished rights to redress under Article I, Section 21 of the Florida Constitution when it limited the amount he may recover to $50,000. Prior to enactment of Section 768.28, appellant argues, his recovery would have been unlimited because operating an electric plant is a proprietary function. On the basis of Kluger v. White, 281 So.2d 1 (Fla.1973), appellant would have us find that this legislative alteration of his prior right interferes unconstitutionally with his redress for injuries, absent any adequate substitute remedy.

While we may agree with appellant that municipal electrical operations were proprietary functions under the now discarded test for municipal sovereign immunity, we disagree with his assertion that Kluger dictates the result he desires. In Kluger, the Supreme Court held only that the complete abolition of a prior common law right to recover for automobile accident property damages violates the right to redress provision, absent either a substitute remedy “to protect the rights of the people of the State to redress for injuries” or a legislative demonstration of “overpowering public necessity.” 281 So.2d at 4.

Guided by case law subsequent to Kluger, we narrowly construe the instances in which constitutional violations will arise. The Constitution does not require a substitute remedy unless legislative action has abolished or totally eliminated a previously recognized cause of action.

As discussed in Kluger and borne out in later decisions, no substitute remedy need be supplied by legislation which reduces but does not destroy a cause of action. The Court pointed out that legislative changes in the standard of care required, making recovery for negligence more difficult, impede but do not bar recovery, and so are not constitutionally suspect. Kluger, 281 So.2d at 4, discussing McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867 (Fla.1942) (automobile guest statute). Accord, Abdin v. Fischer, 374 So.2d 1379 (Fla.1979) (limiting liability of owners of public recreational areas). Similarly, shortening the period in which a litigant may sue, as opposed to barring his cause of action entirely, does not trigger the substitute remedy requirement. Nor does elimination of one possible ground for relief require the legislature to provide some replacement.

In contrast to Kluger and other cases involving complete abolition of an established cause of action, appellant’s cause of action has only been limited by the imposition of a dollar cap on the available recovery. Moreover, appellant frames the constitutional question too narrowly when he complains that those injured by governmental negligence in proprietary functions have by this statute been deprived of access to their previous remedies. In identifying the cause of action arguably abolished or limited, we need not myopically concern ourselves only with that discrete class of persons who are injured by municipal negligence in performing a proprietary function. Appellant and others so injured are properly viewed as among all victims of tort committed by municipalities or other governmental agencies affected by the statute in question. To benefit that larger class the legislature waived government’s tort immunity and created general liability where there was none previously, eliminating arbitrary distinctions between tort victims.

Consider White v. Clayton, 323 So.2d 573, 575 (Fla.1975), in which the Court found no constitutional infirmity in changes to the wrongful death statute which “increase[d] damages in some circumstances and decrease^] them in others.” The class of persons whose access to remedies the Court examined in White included all those family members who are financially injured by the wrongful death of another. Here, similarly, we are concerned with the access rights of all those injured by governmental negligence. Finding that the class as a whole retains access to prior remedies or achieves access to greater remedies, as a result of the legislation, ends the constitutional inquiry, regardless of limitations placed on the recoveries of some within the class. Any rule preventing the legislature from decreasing the remedies of some within the affected class, while increasing the remedies of others, would appear to commit Florida constitutionally to an ever expanding tort liability system. By no means is that a recognized constitutional principle. See also Estate of Cargill v. City of Rochester, 119 N.H. 661, 664-65, 406 A.2d 704, 706 (1979) ($50,000 statutory limit on municipal tort liability does not violate state constitution’s right to certain remedy clause); Stanhope v. Brown County, 90 Wis.2d 823, 844-45, 280 N.W.2d 711, 720 (1979) ($25,000 limit does not violate similar clause).

Appellant also argues that Section 768.28 is unconstitutional because it violates the due process and equal protection clauses. As to due process, we are not prepared to find that the legislature had no rational basis for imposing a $50,000 recovery limit if that limit was considered sufficient to permit full recovery in the vast majority of the cases. Such a limit also permitted governmental units to order their fiscal planning. Accord, State v. Silva, 86 Nev. 911, 478 P.2d 591 (1971). For the same reasons we find no violation of equal protection, there being a rational relationship between the statutory classifications of tort victims and the object of the legislation. E. g., Lasky v. State Farm Ins. Co., 296 So.2d 9, 18-20 (Fla.1974). Here the classifications were designed to enable enhanced recoveries in most cases while recognizing that requiring local governments to protect themselves against full liability could impose too heavy a financial burden on local taxpayers. See Stanhope, supra.

Since Section 768.28 neither abolished any common law rights to redress nor irrationally impinged other constitutional guarantees, we find its limits on tort liability constitutional. Absent any finding of arbitrariness, it is the legislature that must determine periodically whether such limits on recovery should be adjusted for inflation or, as some suggest, to reflect differing abilities to pay between major state agencies and minor hamlets. The decision of the trial court is AFFIRMED.

SHAW, J., and RUDD, JOHN A., Associate Judge, concur.

      . Article I, Section 21 of the Florida Constitution provides:
      The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay. See generally, Note, Article I, Section 21: Access to Courts in Florida, 5 Fla.St.U.L.Rev. 871 (1977).

      . U.S.Const. amend. XIV § 1; Art. I, § 2, Fla. Const.

      . U.S.Const. amend. XIV § 1; Art. I, § 9, Fla. Const.

      . Section 768.28(5), Fla.Stat. (1977), in pertinent part provides:
      The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000.

      . The statute notes:
      However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

      . Doubt on this point arose after the Attorney General issued an opinion that the statute, did not impose a limit on municipal liability for torts arising out of proprietary functions. [1976] Ann.Rep.Atty.Gen.Fla. 70. In response the legislature in 1977 amended the statute, in effect overruling the Attorney General, to provide:
      The limitations of liability set forth in this subsection shall apply to the state and its agencies and its subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974. Ch. 77-86, § 1, Laws of Fla.
      See generally, Budetti & Knight, The Latest Event in the Confused History of Municipal Tort Liability, 6 Fla.St.U.L.Rev. 927, 933-37 (1978). For argument prior to the 1977 amendment that the statute was designed to eliminate the proprietary-governmental distinction, see Seligman and Beals, The Sovereignty of Florida Municipalities: ln-Again, Out-Again, When-Again, 50 Fla.Bar.J. 338, 339-340 (1976).

      .The preeminent early critic was Professor Borchard. Borchard, Governmental Liability in Tort, 34 Yale L.J. 1, 129, 229 (1924). See also Price & Smith, Municipal Tort Liability: A Continuing Enigma, 6 U.Fla.L.Rev. 330, 353 (1953); W. Prosser, Law of Torts, § 131 at 979-84 (4th ed. 1971). The arguments in favor of imposing more restrictions on tort suits against municipal, as opposed to private, corporations even in the operation of proprietary functions were well stated in another context in Martineau v. City of Daytona Beach, 47 So.2d 538, 539 (Fla.1950): municipal corporations are created for the benefit of the entire community not individual financial gain, profit from proprietary operations goes into the public treasury and claims for injuries are paid out of the same public treasury so the well-being of the entire community is affected. See also Little, In Defense of the 1968 Florida Constitution’s Statement on Sovereign Immunity, 52 Fla.Bar J. 660, 661-62 (1978); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1016 (Fla.1979).

      . Compare Purk v. Federal Press Co., 387 So.2d 354 (Fla.1980) and Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978) with Overland Construction Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979).

      . In Estate of Roberts, 388 So.2d 216 (Fla.1980), the Supreme Court found no impermissible interference with right to redress when the legislature eliminated nondisclosure as grounds for invalidation of a prenuptial agreement. The court noted that the legislature had not abolished the appellant’s right to sue to have such an agreement set aside, just eliminated one reason for doing so. 388 So.2d at 217.

      : Sirmons, n. 8 supra; Sunspan Engineering & Construction Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975).

      . The House Judiciary Committee, which drafted the version approved by the legislature, heard testimony from a representative of The Academy of Florida Trial Lawyers that even a $25,000 limit on individual recoveries would cover the vast majority of the claims. Meeting tape, April 12, 1973: Fla. State Archives, Series 19, Carton 447TA. The House also considered and rejected an amendment that would have increased the limits to $100,000 per individual and $300,000 per incident. J.Fla.House of Reps. 518 (1973).

      . See Leonard, Municipal Tort Liability: A Legislative Solution Balancing the Needs of Cities and Plaintiffs, 16 Urban L.Ann. 305, 325 (1979). See also the preamble to Chapter 77-86,- Fla.Laws, referring to the cost of insurance “often beyond the ability of the local taxpayers to afford.”


text:
    Stanley R. CARTER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. WW-403.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Stanley R. Carter, pro se.
    Malcolm Greenfield and Catherine L. Dickson, Florida Parole and Probation Commission, Tallahassee, for appellee.'
   ON PETITION FOR REHEARING

PER CURIAM.

Appellee’s petition for rehearing having been granted and this Court’s decision and opinion filed April 2, 1981, having been withdrawn, the judgment appealed is affirmed, without prejudice to the right of Appellant to pursue any administrative remedies to which he may be entitled.

AFFIRMED.

LARRY G. SMITH and THOMPSON, JJ., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


text:
    Vilous BAKER, Appellant, v. ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS, and Gallager Bassett Insurance Service, Appellees.
    No. WW-42.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Rehearing Denied July 1, 1981.

      Gary Doane, of Whitaker & Koepke, Orlando, for appellant.
    James B. Cantrell, Orlando, for appellees.
   PER CURIAM.

Claimant appeals a workers’ compensation order denying his claim for benefits. We disagree with the deputy’s conclusion that the cause of claimant’s injury “was extraneous to the employment,” with no “contributing employment condition or circumstance,” and reverse the order appealed.

The claimant is a road-grader operator whose work requires exposure to the weather. Because of a diabetic condition, claimant has a diminished sensitivity in his feet. After losing a portion of his big toe due to an employment-related frostbite, claimant was advised by his physician to take precautions against further exposure to the cold, and expressly instructed to keep his feet warm. As his employer was aware, claimant subsequently began wearing battery operated socks in extremely cold weather. While wearing such socks in February of 1979, claimant sustained severe burns on the bottom of his feet, resulting in gangrene and requiring the amputation of a portion of one foot. The evidence clearly showed that the burns were occasioned by the wearing of the electrical socks, but did not specifically establish that the heating mechanism had malfunctioned. Although claimant was outdoors during only a portion of the day of his injury, the weather was so severe as to require his wearing thermal underwear, insulated coveralls, his regular work clothes, and a jacket as well as the electrical socks.

The time, place, and circumstances of claimant’s injury establish that it occurred in the course of employment, and the issue on appeal is whether it arose out of the employment. In this regard, to be com-pensable the injury must have originated in some work connected with the employment, or have occurred as a natural consequence of the employment; i. e., there must be a contributing employment cause. See Southern Bell Telephone and Telegraph Co. v. McCook, 355 So.2d 1166 (Fla.1977); Suniland Toys and Juvenile Furniture, Inc. v. Karnes, 148 So.2d 523 (Fla.1963). However, compensability is not defeated by the fact that an injury is sustained while an employee is furthering his personal comfort. See Cunningham v. Scotty Home Builders, 9 FCR 1 (1973), cert. denied, 307 So.2d 182 (Fla.1974); Jim Jernigan’s Studio v. Hopewell, 7 FCR 38 (1972); cf., McCook. In the present case, claimant’s employment required his exposure to cold weather and, contrary to the deputy’s conclusion, the employer’s interest may reasonably be regarded as furthered by increased productivity from personal comfort activity such as claimant’s maintaining warmth by wearing the electrical socks. Cf., Cunningham, supra (compensability of a refreshment break injury). We note that the present ease does not involve an inherently dangerous instrumentality or activity or other circumstances to indicate either express or implied prohibition by the employer. See A. Larson, Workmen's Compensation Law, §§ 21.51, 21.80,21.84 (Vol. 1A 1980). Claimant’s injury was thus not wholly extraneous to the employment, and the contributing employment conditions and circumstances render the injury one which arose out of the employment.

The order appealed is reversed and the cause is remanded for further proceedings.

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    S. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2057.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Bennett H. Brummer, Public Defender and Myron M. Gold, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

The defendant’s adjudication of delinquency for possession of more than five grams of marijuana must be reversed because the circumstantial evidence of joint or constructive possession is entirely inadequate to establish that the juvenile had either knowledge of or the ability to control the contraband so as to establish criminal possession. Johnson v. State, 381 So.2d 342 (Fla.3d DCA 1980) and cases cited therein.

Reversed and remanded with directions to discharge the juvenile.


author: BASKIN, Judge.

text:
    Charolette A. JANUSE, Appellant, v. U-HAUL COMPANY, INC., and Old Republic Life Insurance Company, Appellees.
    No. 80-565.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Laurence D. Faye, Saul T. Von Zamft, Coral Gables, for appellant.
    Haddad & Josephs and Michael Seth Cohen, Miami, for appellees.

      Before BASKIN and FERGUSON, JJ., and EZELL, BOYCE, F., Jr. (Ret.), Associate Judge.
   BASKIN, Judge.

Plaintiff, Charolette A. Januse, has appealed Summary Judgment and Order Granting Summary Final Judgment entered in favor of U-Haul Company, Inc. in her action for damages brought under theories of negligence and breach of implied warranty. In addition, she appeals the Order Taxing Costs. The issue presented involves selection of the appropriate statute of limitations.

Appellant Januse, a Florida resident, traveled to Illinois to collect her furniture. She used a U-Haul truck rented for her in Illinois by Ernest Johnson on January 11, 1976. On February 12, 1976, as appellant was driving through Kentucky on her return to Miami, a defective steering mechanism and belt caused the truck to overturn. On April 12, 1978, appellant sued U-Haul Company, Inc. alleging negligence and breach of certain warranties. The Florida trial court entered summary judgment for U-Haul Company, Inc. ruling that the negligence claim was barred under the statute of limitations. The court subsequently ruled in its Order Granting Summary Final Judgment that her cause of action under common law breach of warranty was also barred by the applicable statute of limitations. The court did not specify which state’s statute of limitations controlled. We agree with the court’s ruling concerning the negligence claim but disagree with the ruling regarding the claim alleging breach of implied warranty. Our holding is predicated upon our determination that the Illinois Uniform Commercial Code covered the implied warranty claim.

Section 95.10, Florida Statutes (1975) bars an action which is forbidden by the law of the state in which it arose.

When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.

Because the cause of action for breach of implied warranty arose in Illinois, the state in which the contract was executed, the Illinois statute of limitations applies. See J. Ester, Borrowing Statutes of Limitations and Conflict of Laws, 15 U.Fla. L.Rev. 33 (1962). Illinois law provides a four-year statute of limitations for actions alleging breach of warranty under the Uniform Commercial Code, ch. 26 § 2-725(1) (Ill.Rev.Stat.1973). The law includes actions for breach of implied warranties of merchantability, ch. 26 § 2-314 (Ill.Rev. Stat.1973). Illinois provides a two-year statute of limitations for personal injury claims whether sounding in tort or breach of common law implied warranty. Ch. 83 § 15 (Ill.Rev.Stat.1973). U-Haul contends the latter statute bars the claim.

Count III of the complaint recites:

(16) Defendant impliedly warranted that said vehicle was fit and reasonably safe for ordinary usage, of merchantable quality, and contained no inherently dangerous mechanical defects.

We are satisfied these allegations bring the complaint within the Illinois Uniform Commercial Code four-year statute of limitations covering actions for breach of the implied warranty of merchantability. Berry v. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974); Branden v. Gerbie, 62 Ill.App.2d 138, 19 Ill.Dec. 492, 379 N.E.2d 7 (1978). The U.C.C. has been extended in Illinois, as in other states, to cover non-sale transactions. An Illinois appellate court has held that certain provisions of Article 2 should apply by analogy to equipment leases, Heller v. Convalescent Homes, 49 Ill.App.3d 213, 8 Ill.Dec. 823, 365 N.E.2d 1285 (1977). The Heller court analogized equipment leases to the “transaction of goods” language of the U.C.C., ch. 26 § 2-102 (Ill.Rev.Stat. 1973), rather than “sale of goods”. But cf. Knox v. North American Car Corp., 80 Ill. App.3d 683, 35 Ill.Dec. 827, 399 N.E.2d 1355 (1980) (the court, while acknowledging the Heller decision, refused to apply the U.C.C. to a lease where the lessee did not possess vertical privity). Under these circumstances, the trial court erred in ruling appellant’s claim was barred under Illinois law.

The personal injury claims alleging negligence are barred under both the Kentucky one-year statute of limitations, Kentucky Rev.Stat. § 413.140(l)(a) (1974), and the Illinois two-year statute of limitations, ch. 83 § 15 (Ill.Rev.Stat.1973).

For these reasons, we reverse the summary judgment entered by the trial court insofar as it pertains to the action for breach of implied warranty of merchantability under the Illinois U.C.C. and remand for further proceedings. The Order Taxing Costs is reversed.

Reversed and remanded.

      . The proper method of pleading a cause of action for breach of warranties under the Florida U.C.C. is described in Dunham-Bush, Inc. v. Thermo-Air Service, Inc., 351 So.2d 351 (Fla. 4th DCA 1977).

      . The well-reasoned dissent by Justice Rizzi criticizes the majority for “pick[ing] up the discarded remnants of privity in personal injury actions. .. . ” Knox v. North American Car Corp., supra, 35 Ill.Dec. at 838, 399 N.E.2d at 1366.


text:
    Bruce SHULER, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 80-1121.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carroll, Halberg & Meyerson, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Robert L. Blake, Asst. County Atty., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Wong v. City of Miami, 237 So.2d 132 (Fla.1970); Henderson v. City of St. Petersburg, 247 So.2d 23 (Fla.2d DCA 1971), cert. denied, 250 So.2d 643 (Fla.1971); Nelson v. Traer, 188 So.2d 65 (Fla.3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967).