text:
    Fredrick MOSSER, Appellant, v. STATE of Florida, Appellee.
    No. 79-2075.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The order revoking appellant’s probation is affirmed. However, this cause is remanded with directions that the finding of a violation of probation for failing to pay the monthly cost of supervision be stricken from the order of revocation.

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin T. GOLDBERGER, Individually, Fred Roehner, Soll Roehner, Dean Moses and Earl Worsham d/b/a Regency Highland Associates, Melvin T. Goldberger, as Trustee, Appellants, v. CAM CORPORATION OF BROWARD, formerly known as Cam Corporation of Florida, Appellee.
    Nos. 79-2142, 80-1338.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Curtis G. Levine, of Baskin & Sears, Boca Raton, for appellants.
    Keith A. Gasman, of Brinkley, McNerney & Morgan, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellants have proceeded under Florida Rule of Appellate Procedure 9.110 to seek review of three trial court orders. One disallowed appellants’ motion to amend a counterclaim to join a nonparty and the other two denied appellants’ motion and supplemental motion to add that nonparty as a counter-defendant. Neither was a final order reviewable under the Florida Rule of Appellate Procedure 9.110 nor was either reviewable under Florida Rule of Appellate Procedure 9.130.

We have in the past entertained a petition for writ of certiorari directed to an order of the trial court which denied plaintiffs’ motion to add parties as defendants. In Surette v. Galiardo, 309 So.2d 253 (Fla. 4th DCA 1975) we granted certiorari in such case on the ground that plaintiffs may have reasonably suffered material injury for which a later appeal may have been inadequate.

In the present ease the trial court, in denying appellants’ motion for leave to file an amended counterclaim against one not a party, said:

3. This order shall be with prejudice as to the proposed Counterclaim against the Estate of Frank M. Wallace, but shall not prejudice the Defendants from taking any type of appropriate action against the Estate.

By the language of the foregoing order and as a result of the other orders appellants were free to initiate an independent action against the estate and to seek consolidation of the two actions. The only thing the trial court prohibited was the use of a counterclaim as the means of defendants proceeding against one not a plaintiff in the action.

In summary, we shall treat this appeal as a petition for writ of certiorari but shall deny relief upon the ground that the trial court did not depart from the essential requirements of law when it entered its orders.

IT IS SO ORDERED.

LETTS, C. J., and DOWNEY and GLICKSTEIN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    ESTATE of Victor G. HUSKEA, Victor J. Huska, Victor J. Huska, Conservator of Estate of Rudolph Huska, Incompetent, Marcia Charity, Rose Smith, Zena Hirchak, Phyllis Bechtel, Emma Ellis, Matilda Jenkins, Lois Lucas, Mark Troughton, John Huska, Paul Lanko, William Lanko, Debra Miller and Sandra Emigh, Appellants, v. Paul DOODY, Appellee.
    No. 79-2384.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Larry Klein, West Palm Beach, for appellants.
    Joe N. Unger of Law Offices of Joe N. Unger, P. A., Miami, for appellee.
   GLICKSTEIN, Judge.

The personal representative of the estate of Victor G. Huskea filed in the probate court a petition for determination of beneficiaries of the estate. The petition alleged, and the probate court found, that the decedent was survived by a natural son, Paul Doody, who was adopted by Daniel J. Doody at the age of four. Other pleadings in the record reflect that the decedent was also survived by fifteen cousins.

In its order determining heirs the probate court made the following findings:

1. Decedent, VICTOR G. HUSKEA, died intestate on March 9, 1977, leaving no surviving spouse.
2. At the time of decedent’s death, he was survived by his natural son, PAUL DOODY. PAUL DOODY was born in Massachusetts on March 15, 1937, and adopted in Massachusetts in 1941 by his stepfather, DANIEL J. DOODY.
3. At the time of the birth and adoption of PAUL DOODY, the laws of both Massachusetts and Florida expressly provided that an adopted child was entitled to inherit as an intestate heir from a natural parent.
4. Despite a later change in both the Massachusetts and Florida statutes, both of which occurred prior to the death of VICTOR HUSKEA on March 9, 1977, this Court finds that since (1) statutes of descent and distribution ordinarily place emphasis upon kinship as established by blood, (2) a statute which interrupts the natural course of descent of property should be strictly construed, and (3) it is well settled that a statute should not be given retrospective application unless the intent to do so is clear, PAUL DOODY is entitled to inherit the estate of his natural father. See In re Levy’s Estate, 141 So.2d 803 (Fla. 2d DCA 1962).

Based on those findings, the probate court determined that Paul Doody was the sole heir of his natural father’s estate. We reverse.

Our basic disagreement with the probate court is in its conclusion that to find against the natural son would require a retrospective application of Section 732.108(1), Florida Statutes (1979), which was in effect on the date of death of Paul’s natural father in 1977. The statute provides:

For the purpose of intestate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and he is not a lineal descendant of his natural parents, nor is he one of the kindred of any member of his natural parent’s family or any prior adoptive parent’s family, . . . (Emphasis added)

The decedent’s death is the event which vests an heir’s right to intestate property. Section 732.101(2), Florida Statutes (1979). See also In re Ruff’s Estate, 159 Fla. 777, 782, 32 So.2d 840, 843 (1947), wherein the court said:

The right of a child to inherit property through its father does not commence until after the death of the father and consequently all such rights will be governed by the statutes then existing.

Until the natural father died, the natural son had had only an expectancy or prospect of inheritance; he was an heir apparent. Consequently, any legislation prior to the death of the father did not divest any rights to intestate succession since none were vested at that time. Retrospective application of Section 732.108(1) would have occurred only if the date of death had been prior to the effective date of the statute. In such instance the mere expectancy interest would have vested at the time of the decedent’s death, and any subsequently enacted statute adversely affecting that vested interest would be constitutionally infirm.

There is no decision in Florida directly on point. Nonetheless, the majority of those states that have considered the matter support our conclusion that the legislation in effect at the time of the decedent’s death governs, not the legislation in effect at the time of adoption. One such case, Katz v. Koronchik, 369 Mass. 125, 338 N.E.2d 339 (1975), pointed out that at the time of adoption, an adopted child’s expectancy of intestate inheritance from his natural parent was most uncertain.

As [sic] adopted child’s possibility of inheritance from his natural kindred hardly is an interest of such substance as to be entitled to constitutional protection (cf. Billings v. Fowler, supra [361 Mass. 230] 239, 279 N.E.2d 906), particularly where the adopted child has in substitution a new set of expectancies.

Id. at 338 N.E.2d 340.

In applying the law in existence at the time of the decedent’s death, the Massachusetts court noted:

The result we reach is the same as that reached generally in other States under statutes concerned with rights of inheritance with respect to adopted children, where the statute was not explicit as to its applicability to adoptions concluded prior to its effectiveness. See, e. g., Scott v. Scott, 238 Ind. 474, 478-479, 150 N.E.2d 740 (1958); Arciero v. Hager, 397 S.W.2d 50, 52-53 (Ky.1965); Williams, Appellant, 154 Me. 88, 91-94, 144 A.2d 116 (1958); In the Matter of Holibaugh, 18 N.J. 229, 234-236, 113 A.2d 654 (1955); In re Estate of Millward, 166 Ohio St. 243, 245-247, 141 N.E.2d 462 (1957). See also R. Powell, Real Property § 1007 (at 708.1-708.2) (P. Rohan ed. 1974). Contra, Nickell v. Gall, 49 N.J. 186, 229 A.2d 511 (1967).

Id. at 338 N.E.2d 341.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DOWNEY, J., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.

      . Such expectancy was dependent upon (1) the child’s survival of the parent, (2) the non-existence of any will, and (3) the absence of others having a similar or superior relationship to the decedent.


text:
    STATE of Florida, Appellant, v. Richard Dale MARTINS, Appellee. STATE of Florida, Appellant, v. Richard Thomas SCHMIDT, Appellee.
    Nos. 79-2448, 80-88.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    David H. Bludworth, State Atty., and Joseph L. Ackerman, Jr., Asst. State Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Mulryan v. Judge, Division “C”, 350 So.2d 784 (Fla. 1st DCA 1977) and State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975).

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    Kenneth G. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2507.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Attempted escape is not one of the specified crimes for which the trial court judge may enter an order retaining jurisdiction over the offender for review of a parole commission release order as to the first third of the maximum sentence imposed. The reservation of jurisdiction under Section 947.16(3), Florida Statutes (1979), is stricken from the judgment under review which is otherwise affirmed.

AFFIRMED IN PART, REVERSED IN PART.

HERSEY and GLICKSTEIN, JJ., and LEONARD RIVKIND (Associate Judge), concur.


text:
    KARL A. KANDELL ASSOCIATES, INC., and Karl A. Kandell, Individually, Appellants, v. August URBANEK, Val Zimmermann, and Val Zimmermann Corp., a Profit Sharing Trust, Appellees.
    No. 79-2604.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Joel S. Wadsworth of Wadsworth & Carnes, Atlanta, Ga., for appellants.
    Walter M. Meginniss of Crary, Buchanan & Meginniss, Chartered, Stuart, for appel-lees.
   PER CURIAM.

Appellant filed a notice of appeal over two months after entry of the written order which he wants us to review. We do not have jurisdiction unless an appropriate motion for rehearing tolled the time for filing a notice of appeal. Appellant relies upon a motion for rehearing filed after the court’s oral ruling but before entry of a written order. We dismiss the appeal. See Tri-State Systems, Inc. v. Seminole County, 302 So.2d 168 (Fla. 4th DCA 1974).

APPEAL DISMISSED.

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


author: LETTS, Chief Judge.

text:
    John I. ROMANOFF, Appellant, v. STATE of Florida, Appellee.
    No. 80-97.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and John R. Cullom, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

This appeal evolves from a charge of carrying a concealed firearm and is framed against the backdrop of yet another anonymous BOLO, the trial judge denying the motion to suppress filed by the driver of a vehicle when a search of that vehicle revealed a .22 caliber pistol. We affirm.

The officer on patrol was advised by radio that an unidentified subject had pulled a gun on someone at a hotel and then exited to a white Chevrolet. At the very moment of receipt of that BOLO, the officer’s cruiser was by chance only a block from the hotel in question and within seco'nds he saw a white Chevrolet pull out in front of him onto the main drag. The officer meanwhile requested more information but none was available. Accordingly, on “instinct” he activated his blue light whereupon he observed the driver lean over as if to place something under the front passenger seat. The Chevrolet was then pulled over and the officer, at gun point, ordered the two occupants to exit the vehicle, patted down the driver, on whom he found a knife and thereafter discovered a .22 caliber pistol upon searching under the front passenger seat.

It requires no deep thought to figure out the points on appeal. Simply stated, it is argued that there was no founded suspicion for the stop under Section 901.151(2), Florida Statutes (1979) and no probable cause for the search under Chapter 901.151(5). We disagree.

AS TO THE STOP

At the hearing on the motion to suppress, the trial judge had a more difficult task than we do now, for he did not then have the benefit of the Supreme Court ruling in Hetland v. State, 387 So.2d 963 (Fla.1980) which in part overruled our own prior opinion in St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978). Suffice it to say that Hetland succinctly enunciates that “a valid stop may be based on information obtained from an anonymous tipster if that information appears sufficiently reliable because of the surrounding circumstances or the nature of the information given in the tip itself.” This being so, we need only examine the instant facts to see if the information, or the nature thereof, was sufficiently reliable under the circumstances.

Revisiting our laundry list set forth in Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979), we note that:

1.The reliability factor of an anonymous BOLO as discussed in Hetland, has already been commented on above.

2. The location is certainly a factor here. The relayed information placed a white Chevrolet at or in the vicinity of the hotel where it was in fact spotted.

3. The time is also relevant because the automobile was spotted within seconds of the BOLO.

4. The appearance of the vehicle is pertinent.

5. The appellant argues that there was no incongruity in this case because “a person driving a white automobile on the streets in the early evening and obeying all traffic laws is certainly not incongruous.” However, the BOLO spoke of a white Chevrolet at or near the site of the gun pulling incident and lo and behold within seconds there one was. We are not unmindful of Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976) and agree with the principle that the police could not stop every white Chevrolet with a cast of thousands from which to make the choice. However, this particular vehicle was not only a white Chevrolet, but it was at the exact right place at the exact right time.

At this juncture we must ask the same rhetorical question seen so often in appellate decisions: What should the officer have done, let the Chevrolet go? The public defender, during oral argument before this court, answered “Yes" to the question. However, we believe that under the circumstances of this case and the exigency of a moving automobile, all coupled with the nature of the information contained in the BOLO, there existed a founded suspicion which justified the stop.

AS TO THE SEARCH

Having determined that the stop was permissible we now turn our attention to probable cause for the search.

Examining first the search of the driver’s person, we likewise hold that to be proper. The reason for the stop was the report of the alleged gun pulling incident at the hotel. Accordingly, the officer, in assuming he was stopping the correct suspect, would have to have probable cause to believe that the suspect was possessed of a firearm and, therefore, a threat to the safety of the officer or another person. As we have already stated, the pat down revealed only a knife (for the possession of which weapon the driver was not charged) so that the offending firearm remained undetected. However, the officer, upon activating his blue light, had observed the driver reach under the front passenger seat. Having failed to locate the gun on the defendant’s person it certainly was reasonable for the officer to assume the gun might have been placed under the passenger seat, an assumption which subsequent events proved correct. Under the circumstances of this case we agree with Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978) where the court clearly held that the search permitted following an investigative stop, may include a protective search of the passenger compartment of a vehicle even though the occupants are outside it. Remember the facts before us indicate that the stop had not by itself included an arrest. Accordingly, we agree with the rationale of Brown that there is danger to the police and other persons in allowing a suspect to return to his vehicle where a gun may be hidden.

At this point we digress to discuss a request from the State that we clarify supposedly conflicting dicta on the effect of a report indicating the presence of a gun on the right to stop and frisk. In Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979) we approved a stop but disapproved the search. In so doing we indicated that had the BOLO in Isham also included information that the suspect might be armed, a frisk might have been permissible. That statement in Isham was not intended to obviate any requirement of a founded suspicion for a stop in the first place, but rather was intended to envisage just such a factual situation as we have before us now. This being so, we see no need to recede from the dicta in Isham as was suggested in further dicta found in, In the Interest of G.A.R.III (a child), 387 So.2d 404 (Fla. 4th DCA 1980), because we find no conflict with it. Obviously we certainly agree with G.A.R., “that the mere mention of a gun will [not] justify an otherwise impermissible stop or frisk” (at 408). In the instant case there is much more than mere mention of a gun, but we reiterate that the added information on the presence of a gun obviously offers the very “threat to the safety of the officer or any other person” about which the language of the Florida stop and frisk statute speaks. To hold other than that is to suggest that the Fourth Amendment be used to facilitate the subjection of the police and the innocent public to criminal target practice-all supposedly in the name of the constitution. Such a departure from common sense was specifically rejected in Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976), where Judge Downey, speaking for the court quoted from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) as follows:

There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet. Harlan, J., Concurring, 392 U.S. at 33, 88 S.Ct. at 1886.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

      . Other factors were set forth in Lachs which are not applicable here, but as we noted in Lachs the list was neither exclusive nor demanding of the presence of every factor on the list.

      . For example see State v. Hetland, 366 So.2d 831, 833 (Fla. 2d DCA 1979) when the court asked: “In a situation like this, what is a policeman supposed to do? ... Must he ignore the information given?”


text:
    In the Interest of F.J.B., a child.
    No. 80-368.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Richard L. Jorandby, Public Defender and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The state has confessed error herein as to the lack of any evidence to support the trial court’s finding that the appellant had committed a delinquent act. Our review of the record supports this confession of error in accord with appellant’s contention on appeal. Accordingly, the trial court’s order of July 16, 1980 is reversed and this cause is remanded for further proceedings consistent herewith.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


author: HERSEY, Judge.

text:
    TAYLOR IMPORTED MOTORS, INC., individually, and Taylor Imported Motors, Inc. for the use and benefit of American States Insurance Company, Appellants, v. Joyce ARMSTRONG and David Muise, Appellees.
    No. 80-392.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Richard W. Glenn, of Albury, Park & Glenn, West Palm Beach, for appellants.
    Alan J. Werksman, of Shapiro, Leder & Werksman, Boca Raton, for appellees.
   HERSEY, Judge.

Taylor Imported Motors, the owner, and American States Insurance Company, the insurer, of an automobile which sustained damages in an intersection collision, appeal an adverse final judgment which determined that they had failed to show by the greater weight of the evidence that the negligence of the driver of the appellees’ vehicle proximately caused the damages.

The issues to be tried were narrowed by pre-trial stipulation and included as an issue whether appellees’ vehicle “was negligently operated.”

At the non-jury trial, evidence that American States had entered into a monetary settlement with appellees’ driver (not a party to this action) for certain personal injuries sustained by him was admitted over objection, on the theory that both drivers may have been partially at fault.

The basis for this appeal is twofold: that it was prejudicial error to admit into evidence testimony as to the settlement by appellee, American States, of the claim of a third party in the same accident, and that the issue of proximate cause was not properly before the court for adjudication in light of the stipulation.

Testimony as to the settlement was inadmissible. City of Coral Gables v. Jordan, 186 So.2d 60 (Fla.3d DCA 1966), aff’d, 191 So.2d 38 (Fla.1966). The error was not harmless because the issue of negligence was a close question. But for the suggestion created by evidence of the settlement that the driver of appellants’ vehicle may have been negligent, the record might conceivably support a result contrary to that reached by the trial court.

Further, we cannot be certain whether the trial court found that appellees’ driver was not negligent or instead that his negligence was not the proximate cause of the accident.

The issue of proximate cause is not referred to in the pretrial stipulation. On the other hand the record contains no admissions on this issue. It would be an exercise in futility for this court to remand for a trial on the issue of negligence if proximate cause is not to be considered in issue. The judgment is therefore reversed and the matter remanded with directions to determine whether appellees’ driver was negligent and if so, whether that negligence was the proximate cause of appellants’ damages.

REVERSED AND REMANDED FOR NEW TRIAL.

LETTS, C. J., and DOWNEY, J., concur.


author: PER CURIAM

text:
    Arbidella CLARK, Appellant, v. John R. CLARK, Appellee.
    No. 80-918.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Martha C. Warner, of Warner, Fox & Seeley, Chartered, Stuart, for appellant.
    James L. S. Bowdish, of Crary, Buchanan & Meginniss, Chartered, Stuart, for appel-lee.
   PER CURIAM

REVERSED. The appellant was convicted of criminal contempt. Upon review of the record it is our conclusion that the uncontradicted evidence presented by the appellant at the contempt hearing precluded a finding of willful criminal contempt. In addition, we believe the trial court erred in assessing attorney’s fees against the appellant. Accordingly, the judgment of contempt and order assessing attorney’s fees are reversed.

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


text:
    POWIS PROPERTIES, INC., Appellant, v. Stuart LEVIN and Rona Levin, his wife, and Boca Lago Associates, Ltd., a Florida Limited Partnership, Appellees.
    No. 80-1008.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Jeff M. Brown of Lavalle, Wochna, Rutherford, Mahet & Truesdell, P.A., Boca Ra-ton, for appellant.
    Arthur C. Koski of Koski, Mateer & Gillespie, P. A., Boca Raton, for appellees.
   PER CURIAM.

The trial judge did not have the benefit of this Court’s decision in Law Realty, Inc. v. Pagliaralo, 385 So.2d 1093 (Fla. 4th DCA 1980), holding that the standard form of brokerage agreement which is the subject matter of this appeal is an exclusive right of sale agreement. Ergo, the appellant is entitled to a commission, albeit it had nothing to do with the sale, if, on remand, the trial judge finds there was no valid and timely revocation.

Reversed and remanded for further proceedings not inconsistent herewith.

HERSEY and GLICKSTEIN, JJ., and LEONARD RIVKIND (Associate Judge), concur.


author: WENTWORTH, Judge.

text:
    Sherman TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Nos. SS-418, SS-419.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

These appeals challenge the imposition of two five year sentences for aggravated assault, to be served concurrently with sentences for armed robbery. The two cases have been consolidated.

In case 79-69-CF, arising out of an incident which occurred on February 13, 1979, appellant was convicted and sentenced to twenty-five years for armed robbery as well as five years for aggravated assault, the five year sentence to be served concurrently with the twenty-five year sentence. In case 79-97-CF, arising out of an incident occurring on February 14, 1979, appellant was convicted and sentenced to fifteen years for armed robbery as well as five years for aggravated assault, the five year sentence to be served concurrently with the fifteen year sentence. The sentences in 79-97-CF were to be served consecutive to the sentences in 79-69-CF.

In each of the two incidents, appellant pointed a pistol at convenience store employees and demanded money. In each case, the aggravated assault of the employee was a lesser included offense of the armed robbery, since the assault was accomplished with a deadly weapon. Morrison v. State, 259 So.2d 502 (Fla.3d DCA 1972). The court erred in imposing the five year concurrent sentences for aggravated assault. Douglas v. State, 349 So.2d 694 (Fla. 1st DCA 1977).

The sentences for aggravated assault are therefore vacated and the causes remanded for disposition consistent herewith.

ERVIN and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    Wayne Irving REEVE, Appellant, v. Debra Susan REEVE, Appellee.
    No. SS-467.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.

      Lyman T. Fletcher of Fletcher & Fletcher, Jacksonville, for appellant.
    J. D. Culpepper, Jr., Jacksonville, for ap-pellee.
   ERVIN, Judge.

This is an interlocutory appeal from an order denying Appellant/husband’s motion to dismiss or in the alternative to defer jurisdiction on Appellee/wife’s petition for modification of the final judgment of dissolution of marriage. The wife’s petition seeks permanent custody of the parties’ minor daughter.

The marriage of the parties was dissolved in Florida in September of 1974. At that time, temporary custody of Stephanie Reeve was awarded to the husband, to “continue during the course of required medical attention necessary for present conditions and until further order of this court.” The order made provisions for medical coverage for the child, who suffered from a birth defect, once the wife assumed permanent custody of her through a further court order. In September of 1975, the wife petitioned for modification or enforcement of the custody portion of the final judgment. The record discloses no further action taken on that petition.

On April 1, 1977, the wife filed a second petition for modification alleging her understanding that the final surgical procedure would be performed on Stephanie on April 5, 1977, and seeking permanent custody as soon as the surgeon would release her. On April 18, 1977, the husband responded that surgical procedures were not completed. In May, 1977, the husband obtained a continuance on the ground that one further operation was still required.

Two years passed before any further record action was taken in the case. The wife filed a third petition for modification on August 11, 1979. The husband responded with the motion to dismiss for lack of jurisdiction or in the alternative to defer jurisdiction, alleging that he had had continuous custody of Stephanie since September, 1974, when she was twenty — five months old, and that in July, 1975, the child had been moved to New Jersey and had resided there with her paternal grandparents. He further alleged that in July, 1977, he was honorably discharged from the Navy and has since lived with the minor child at the home of the paternal grandparents. The husband initiated proceedings for a custody determination in New Jersey in September, 1979.

In the order denying husband’s motion to dismiss, the court directed the Social and Economic Services Division of the Department of Health and Rehabilitative Services to conduct an investigation into the homes of both parties regarding the suitability of each to have permanent custody of the minor daughter. The Social and Economic Services Division was directed to file with the court a report and recommendation as to the custodial arrangement that would be in the best interests of the child. Thus the court elected not to enforce the custody arrangement of the original judgment of dissolution, but instead to determine the custody issue anew.

In October, 1977, the Uniform Child Custody Jurisdiction Act, found in Sections 61.-1302-61.1348, Florida Statutes, became effective in Florida. Section 61.1308 defines the jurisdiction to make a child custody determination of courts in this state which are competent to decide child custody matters. Four possible situations are enumerated in which a Florida court will have jurisdiction to make a custody determination by initial or modification decree. Only Section 61.1308(l)(b) applies in this case.

Section 61.1308(l)(b) requires that the child and at least one contestant have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. “Section 61.1308(l)(b) does not require that a child's only significant connection be with the State of Florida in order for jurisdiction of the Florida court to attach.” Hofer v. Agner, 373 So.2d 48 (Fla. 1st DCA 1979). Although the child has resided in New Jersey since July, 1975, the wife has apparently resided in Florida since the dissolution and has not lost contact with the child, having visited with her in October, 1976, December, 1978, and the summer of 1979. Under these circumstances, the child and one contestant, the wife, have a significant connection with this state.

As to the second part of the test, for purposes of determining subject matter jurisdiction under Section 61.1308, it is not the relative wealth of evidence available in either state that is at issue, rather, whether there exists in this state substantial evidence regarding the child’s present or future care, protection, training, and personal relationships. While the bulk of evidence regarding the child’s present care, protection, training, and personal relationships may now exist in New Jersey, there nevertheless exists in Florida substantial evidence regarding her future care, protection, training, and personal relationships since the wife, who is seeking permanent custody, resides in this state. Thus the Florida court does have subject matter jurisdiction under Section 61.1308(l)(b), Florida Statutes.

Appellant alternatively contends the trial court should have declined to exercise jurisdiction under the forum non conveniens provisions of the Act, Section 61.1316, Florida Statutes. The exercise of jurisdiction under that provision is discretionary and we find no abuse of discretion in this case.

Accordingly, the order of the trial court denying appellant’s motion to dismiss or in the alternative to defer jurisdiction is affirmed.

SHAW and WENTWORTH, JJ., concur.

      . 61.1308 Jurisdiction.-
      (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (a) This state:
      1. Is the home state of the child at the time of commencement of the proceeding, or
      2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

        (b) It is in the best interest of the child that a court of this state assume jurisdiction because:
      1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
      2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
      (c) The child is physically present in this state and:
      1. The child has been abandoned, or
      2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
      (d) 1. It appears that no other state would have jurisdiction under prerequisite substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
      2. It is in the best interest of the child that a court of this state assume jurisdiction.

      . The reporter for the Uniform Law Committee dealt specifically with the retaining of jurisdiction, under these circumstances, by the state entering the initial decree:
      A typical example is the case of the couple who are divorced in state A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and children move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts in state B may not hear the wife’s petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the “home state” under section 3. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his visitation privileges for three years.
      Bodenheimer, Uniform Child Custody Jurisdiction Act, 22 Vanderbilt L.Rev. 1207, 1237 (1969) cited in Clark v. Superior Court, 73 Cal.App.3d 298, 307, 140 Cal.Rptr. 709, 714 (1977).


author: SHAW, Judge.

text:
    ACOUSTI ENGINEERING CO. OF FLORIDA; Peninsular Fire Insurance Company, Appellants, v. John H. SHIVERS, Appellee.
    No. TT-428.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    James N. McConnaughhay, of McCon-naughhay & Roland, P. A., Tallahassee, for appellants.
    John W. Nall, of Hall & Booth, Tallahassee, for appellee.
   SHAW, Judge.

The claimant suffered a compensable accident on July 8,1976. Claim was filed, and on September 27, 1977, an order was entered finding claimant 25% permanently partially disabled. His condition continued to deteriorate, and a Petition for Modification was filed alleging change of condition. On July 20, 1978, permanent disability was increased to 40%. In September of 1979, another Petition for Modification was filed alleging a further change of condition. This petition was noticed for hearing on January 3,1980, at which time claimant/ap-pellee requested that the petition be held in abeyance and sought temporary total disability commencing September 1, 1979, continued medical treatment by Dr. Royce Jackson, evaluation by Dr. Frank Davis, medical treatment if indicated, and attorney’s fees and costs. No objection was voiced by the employer/carrier.

It was established that Dr. Royce Jackson, a psychiatrist, saw the claimant on November 30, 1979 and diagnosed his condition as post-traumatic depressive reaction with paranoia. The claimant was severely depressed, agitated, anxious, nervous, suicidal and paranoid. Dr. Jackson recommended that he be seen by Dr. Frank Davis, a neurosurgeon. The carrier was ordered to pay temporary total disability benefits from November 30,1979 for the duration of said disability, furnish further medical treatment as the nature of the injury and the progress of recovery may require, furnish psychiatric treatment through Dr. Royce Jackson and examination and evaluation through Dr. Frank Davis. Costs were assessed against the carrier and jurisdiction was retained for the purpose of awarding an appropriate attorney’s fee.

The appellant argues that once there had been an order entered finding MMI and awarding permanent disability benefits there can be no subsequent order awarding temporary compensation absent a showing of change of condition or mistake of fact via a modification hearing. The instant situation does not accommodate such a neat resolution, for despite the claimant’s request that the modification petition be held in abeyance, the hearing was nevertheless allowed to proceed upon the request for additional temporary total disability benefits and medical treatment. The appellants were on notice as to the relief requested and voluntarily participated in the hearing. They are now in a poor position to complain because the deputy awarded the relief dictated by the evidence.

Dr. Jackson opined that on November 30, 1979, the claimant was suffering post-traumatic depressive reaction to the extent that he was nervous, suicidal and paranoid. This opinion was accepted by the deputy commissioner who found that “[s]ince November 30, 1979, the claimant has been in need of medical treatment and unable to work.” In other words, the deputy found that the claimant, who was only 40% permanently partially disabled on July 20, 1978, now has a functional impairment from a psychological or psychiatric standpoint that renders him temporarily totally disabled and in need of additional medical treatment. Clearly he has found a change in condition notwithstanding his assertion that a change of condition was not at issue. This finding is supported by competent substantial evidence.

The order is, accordingly, affirmed.

ERVIN and WENTWORTH, JJ., concur.


text:
    Marian L. VEIOCK, Appellant, v. Harry Glenn VEIOCK, Appellee.
    No. UU-273.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.

      Miriam E. Mason, Pensacola, for appellant.
    Harry G. Veiock, Pensacola, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

These parties were married the first time in 1954 and were subsequently divorced in 1978. In connection with the dissolution of marriage proceedings, they entered into an agreement which, among other things, provided that the Husband would pay to the Wife $400.00 per month as a financial settlement during her lifetime or until she remarried. He continued to make those payments until they were remarried on March 29, 1979. Before that marriage occurred, however, they entered into a prenuptial agreement which stated, among other things, that should this marriage end in separation or divorce, they would revert to the financial agreement previously entered into and incorporated into that final judgment. The second marriage, after a brief period of time, also ended in dissolution. The Husband first filed a petition, and the Wife filed a counter petition. At the conclusion of the hearing, the trial judge set aside the previous agreement as a result of the first divorce as well as the prenuptial agreement prior to the second marriage and awarded the Wife $250.00 per month as support. The trial court specifically found that the parties’ earlier agreements were not enforceable because it appeared that the second marriage was based upon and induced by misleading representations on both sides.

The Wife now appeals, urging that the trial court erred in hearing testimony that the separation agreement and prenuptial agreement were unenforceable because the Husband had not pleaded either as a defense, and that the trial judge further erred in finding that both agreements were unenforceable. The Wife sought enforcement of the first agreement, which was a part of the first final judgment, and the second agreement.

We believe the trial judge did in fact commit reversible error and, therefore, reverse. First, the case law is clear that, under Florida Rule of Civil Procedure 1.110(e): “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” In Busot v. Busot, 338 So.2d 1332 (Fla. 2nd DCA 1976), the court said: “If the agreement had been one which was void on its face, the court could have refused to enforce it even though the defense was not pled.” The Husband failed to plead the defense of illegality of the agreements; to the contrary, he included the agreements as exhibits in his petition for dissolution. He did not set them up as a defense and did not prove they were illegal. Therefore, since they were valid on their face, the court erred in ruling them unenforceable. See B. B. S. v. R. C. B., 252 So.2d 837 (Fla. 2nd DCA 1971).

There was uncorroborated testimony by the Husband that the remarriage was solely for business reasons and that the Wife had represented to him that an inheritance from a former husband’s estate, half of which was Appellee’s by virtue of the order dissolving the parties’ initial marriage, would be facilitated by her remarriage to Mr. Veiock. The Wife denied that this was true, and her testimony was corroborated by another witness. Even if we assume that the trial judge did and should have believed the Husband’s testimony, that does not vitiate the agreement which the parties had entered into. There must have been a showing in clear and convincing evidence that the agreement itself was based on overreaching, fraud, coercion, deceit, or duress. See Byrd v. Byrd, 324 So.2d 659 (Fla. 2nd DCA 1976); Bare v. Bare, 120 So.2d 186 (Fla. 3rd DCA 1960); Cowen v. Cowen, 95 So.2d 584 (Fla.1957); Miller v. Miller, 7 So.2d 9 (Fla.1942). Appellant may have deceived Appellee into marrying her again, but he did not allege fraud or duress as a ground for dissolving the marriage. The relevant cases all dealt with the grounds for invalidating an antenuptial or post-nuptial agreement; none of them threw out the marriage along with the agreement. E. g., Potter v. Collin, 321 So.2d 128 (Fla. 4th DCA 1975); Pemelman v. Pemelman, 186 So.2d 552 (Fla. 2nd DCA 1966); Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). Appellant simply presented no evidence that he was tricked into signing the agreement. In fact, when he signed it, he knew that if the second marriage should be terminated, he would merely be obligated to do what he was already obligated to do under the terms of the first dissolution decree.

We reverse the trial court’s judgment with directions to enter an order enforcing the prenuptial agreement, the terms of which are contained in the first final judgment of dissolution and require the Husband to pay the Wife $400.00 per month as support. In reversing, we suggest the caveat set forth in Busot v. Busot, supra, as well as in Horton v. Horton, 330 So.2d 69 (Fla. 1st DCA 1976), that if the terms of the agreement are too burdensome, the Appel-lee may seek to have the agreement modified. The evidence here, however, does not support its unenforceability.

REVERSED AND REMANDED for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., and THOMPSON, JJ., concur.


text:
    RAMSEY NURSING FACILITIES, INC. and North Miami Nursing Facilities, Inc., et al., Appellants, v. STATE of Florida ex rel. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. VV-436.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.

      Cynthia S. Tunnicliff, of Spector & Tun-nicliff, Tallahassee, and Gary M. Farmer, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for appellants.
    James G. Mahorner, Richard W. Bonehill, Jr., and Elliott S. Shaw, Miami, for appel-lee.
   PER CURIAM.

Appellants, Ramsey Nursing Facilities, Inc. and North Miami Nursing Facilities, Inc., appeal an order denying their motion to dismiss or abate for improper venue, an enforcement action brought by appellee in the Leon County Circuit Court. Citing Section 120.69(l)(a), Florida Statutes, which provides that a petition for enforcement may only be brought in the county where the subject matter of the enforcement is located, appellants contend that their motion should have been granted since their only places of business and the subject matter of the proceedings are in Dade County. We agree and reverse.

In 1977, Sunset Nursing Homes, Inc., (Sunset) protested the action of the Department in disallowing medicaid reimbursement for expenses relating to compensation of corporate officers and depreciation on its three nursing home facilities in Dade County. Sunset also objected to the Department’s requirement that the three nursing home facilities operated by Sunset be reported as separate providers. Sunset requested an administrative hearing which was held in Dade County. The hearing officer entered an order recommending that the basis for computation of depreciation of the depreciable assets of Sunset be the same basis as its predecessor in title; that the compensation of the corporate officers of Sunset be limited to $48,000.00 per year; and that each nursing home owned by Sunset submit separate costs of provider services and not consolidated reports. The order was adopted by the Department as a final order. Several months later, Sunset leased two of its Dade County nursing facilities to appellants, Ramsey Nursing Facilities, Inc. and North Miami Facilities, Inc.

On January 28, 1980, the Department filed a petition for enforcement of agency action against appellants and Sunset in Leon County Circuit Court alleging that pursuant to the hearing officer’s recommended order, adopted by the Department, Sunset owes the Department $145,000.00. In its petition for enforcement, the Department seeks to withhold medicaid reimbursements from appellants in an amount equal to the lease amounts owed by appellants to Sunset. The Department contends that this authorized withholding should constitute payment of the lease amounts to Sunset and should relieve appellants from any obligation to pay the amount withheld to Sunset. Appellants moved to dismiss on the grounds of improper venue since each has its principal and only place of business in Dade County, and pursuant to Section 120.-69(l)(a), a petition for enforcement may only be brought in the county where the subject matter is located. The Circuit Court denied the motion.

We agree with appellants’ contention that venue should be in Dade County, where they maintained their principal places of business, where the violation occurred (Sunset’s medicaid overcharges) and where the leased property is located. Appellants’ liability to Sunset arising from these leases is the “subject matter” of the enforcement proceeding so far as appellants are concerned, since they were not parties to the administrative proceeding between Sunset and appellee. Notably, appellee has not favored us with a brief in response to appellants’ arguments. However, we reject the argument, apparently advanced by ap-pellee in the trial court, that the “subject matter” of the enforcement proceeding lies in Leon County on the theory that appellee issued its medicaid checks to Sunset from Leon County.

We hold that under the facts of this case, the “subject matter of the enforcement” is in Dade County. See Polar Ice Cream and Creamery, Inc. v. Andrews, 146 So.2d 609 (Fla. 1st DCA 1962). Accordingly, the order is reversed and the cause remanded for proceedings consistent with this opinion.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Virgil SMITH and Howard Jones, as the surviving directors and board of trustees of Edwards Sash, Door & Lumber Co., a dissolved corporation, Appellants, v. James M. BRANCH, Jr.; Betty M. Branch, husband and wife; Levi F. Branch; Vialee E. Branch; James R. Cope; Georgia Deane Cope; Wilson C. Rippy, Jr., M. D.; Hugo Schmidt & Company, a Florida Corporation, Montgomery Ward & Co., Inc.; J. M. Linton; The First National Bank of Florida, formerly known as the First National Bank of Tampa; Pan American Bank of Tampa, formerly known as Capital National Bank of Tampa; and Ralph L. Rousseau, Jr., Appellees.
    No. 80-178.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1980.
    Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    No appearance for appellees.
   BOARDMAN, Acting Chief Judge.

Virgil Smith and Howard Jones, as the surviving directors of Edwards Sash, Door & Lumber Co. (Edwards), a dissolved corporation, plaintiffs below, appeal a final judgment ruling their action barred by the statute of limitations and laches. We reverse.

On November 20, 1962, William D. and Thelma K. Dobbs executed a demand note in favor of Edwards for $10,439.90 plus interest secured by a second mortgage on certain real property. Appellee James Branch purchased the property in 1964, assuming a first mortgage on the property to First Federal in the amount of $17-18,000. Branch was also aware of the second mortgage at the time he purchased the house, having spoken with appellant Jones prior to the purchase. No demand was made upon Branch for payment of the note in question prior to the filing of the instant suit on June 14, 1979. Subsequent to his purchase, Branch added a family room to the house at a cost of approximately $10,000.

Paul H. Smith, Jr., a former director and majority stockholder of Edwards, explained that foreclosure had not been sought earlier because the property was heavily mortgaged and foreclosure would not have been productive. He further testified that Branch had been in his office about three years earlier and Branch had mentioned that there was some money owed to Edwards on the house and that he would try to work something out.

Section 95.11(2)(c), Florida Statutes (1979) provides that an action to foreclose a mortgage shall be commenced within five years. Section 95.031(1) provides that generally a cause of action accrues when the last element constituting the cause of action occurs and that the last element constituting a cause of action “on a negotiable or nonnegotiable note payable on demand . . . is the first written demand for payment.” Ruhl v. Perry, 390 So.2d 353 (Fla.1980); Jones v. Rainey, 386 So.2d 1319 (Fla. 2d DCA 1980).

Section 95.281 is the limitation statute applicable to mortgages. Section 95.-281(l)(b) provides that if maturity is not ascertainable from the record, the mortgage terminates twenty years after the date of the mortgage.

When these sections are read together, it is clear that appellants’ action is not barred by the statute of limitations. The twenty-year lien of the mortgage has not yet terminated, and appellants’ cause of action did not accrue until the filing of the complaint herein. Ruhl v. Perry, supra.

The trial court also found laches applicable. However, this finding may have been based solely upon the finding that the statute of limitations had expired, since section 95.11(6) provides that laches automatically bars any action that would be barred by the statute of limitations.

Where strong equities appear, of course, laches may be applied before the statute of limitations has expired. However, laches is an affirmative defense, and the burden of proof is on the party asserting it; it must, moreover, be proved by very clear and positive evidence. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956); Peacock v. Firman, 177 So.2d 560 (Fla. 3d DCA), cert. denied, 183 So.2d 215 (Fla.1965). One of the elements of laches is lack of knowledge on the part of the defendant that the plaintiff will assert the right upon which suit is based. Van Meter v. Kelsey, supra. Here appellee Branch was well aware of the existence of the mortgage in question and of the reason why it was not foreclosed at the time he purchased the property, and he did not establish that he had ever been given reason to believe that the mortgage would not ever be foreclosed.

Accordingly, the trial court erred in entering final judgment against appellants. That order is therefore REVERSED and the cause REMANDED with instructions to enter final judgment in favor of appellants.

DANAHY and CAMPBELL, JJ., concur.

      . Although appellees did not favor this court with a brief, either through counsel or pro se, we have carefully researched the issues before us and considered the case law which could arguably be construed to support appellees’ position.

      . In fairness to the trial judge, it should be noted that this provision was not brought to his attention. At the hearing below, the attorneys for both sides agreed that the statute of limitations began to run on the date of delivery of the note and mortgage, which is contrary to statutory authority and case law.


author: CAMPBELL, Judge.

text:
    Elizabeth O. DAVISON, Appellant, v. Karl FEUERHERD and Margaret Feuerherd, husband and wife, Appellees.
    No. 80-407.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1980.
    Robert W. Beaudry of Lyons & Beaudry, Sarasota, for appellant.
    Carl J. Robie, III, Sarasota, for appellees.
   CAMPBELL, Judge.

Elizabeth Davison appeals from the dismissal of her complaint against the Feuerherds which alleged tortious interference with an expected bequest. The trial court dismissed the complaint finding that it did not state a cause of action. We disagree.

Appellant’s third amended complaint makes the following allegations:

1. Appellant is the daughter of Theodore Obrig and the stepdaughter of Delia Obrig, his wife. They raised her from childhood until she married.

2. Delia Obrig died on December 3,1977, leaving a taxable estate of approximately $160,000. The estate of Mrs. Obrig had been devised to her by her husband, who predeceased her.

3. In 1963, Mr. Obrig had established, as part of his estate plan, a revocable trust which provided income and principal to him during his lifetime; principal and income to Mrs. Obrig after his death; and principal and income to Mrs. Davison after Mrs. Obrig’s death. This trust continued after Mr. Obrig’s death.

4. Mrs. Obrig eventually terminated the trust and replaced it with other .living trusts which provided income and principal to her during her lifetime and the residue of the trust to various beneficiaries. In most of the trusts and amendments thereto, Mrs. Davison was the sole or primary beneficiary.

5. During the summer and early fall of 1977, Mrs. Obrig was eighty years of age, living alone, and in poor physical health. She was unable to care for herself and had begun to drink “on a day to day basis.” Mrs. Obrig was easily influenced and guided by any person upon whom she was dependent and with whom she was closely associated. She was hardly capable of exercising independent judgment.

6. Beginning in August of 1977 and continuing until Mrs. Obrig’s death, the appel-lees visited Mrs. Obrig daily, prepared her meals, cleaned her house, did her laundry, and took her to the doctor and social affairs. As a result, Mrs. Obrig became dependent upon the appellees and was easily influenced and guided by them so that she was hardly capable of exercising independent will.

7. In late August or early September of 1977, Mrs. Obrig formed an intention of giving to appellant the major portion of her estate by amending her living trust so as to leave the residue of the trust to appellant. Mrs. Obrig instructed her attorney to prepare an amendment to this effect.

8. Before Mrs. Obrig had an opportunity to sign the amendment, the appellees learned of her intention. They falsely persuaded her that appellant did not love her, was not concerned about her, and was not worthy of receiving her estate. They told her that they were the only ones who cared for or looked after her, that they should be rewarded by being left her estate, and that they would withdraw the care and comfort upon which she had become dependent if she did not amend the trust to leave her estate to them.

9. Because of the relationship between Mrs. Obrig and appellant and because appellant had been the beneficiary of Mrs. Obrig’s estate during most of her life, there existed a strong probability that Mrs. Obrig’s intention to leave the residue of her trust to appellant would have been carried out but for the appellees’ false statements and exercise of undue influence.

10. Appellant claimed damages because of the fraud and undue influence practiced by the appellees. Appellant’s demand for damages included punitive damages and costs. The damage to appellant was reasonably foreseeable by appellees.

Appellees’ motion to dismiss contended that the complaint did not state a cause of action. The lower court agreed and dismissed the complaint four times, the last time with prejudice.

Appellant argues that her third amended complaint states a cause of action for tor-tious interference with an expected bequest, a theory of liability recognized in Florida. Allen v. Leybourne, 190 So.2d 825 (Fla.3d DCA 1966). Accord, Kramer v. Freedman, 272 So.2d 195 (Fla.3d DCA 1973).

Appellees argue that Allen disregarded earlier cases which denied recovery for interference with an expected gift or legacy under a will. Appellees also attempt to distinguish Allen from the instant case as it deals with a gift of inheritance through a will rather than a trust.

Allen v. Leybourne involved an appeal by plaintiff Mrs. Allen from an adverse final summary judgment. Mrs. Allen also appealed an order dismissing one count of her complaint with prejudice. The dismissed count alleged tortious interference with an expected bequest and asserted the following facts.

Mrs. Allen was one of three daughters of James and Evelyn Leybourne. After her mother’s death, the three daughters agreed that they would not interfere with their father’s administration of the estate. This agreement enabled Mr. Leybourne to receive certain tax benefits. In return Mr. Leybourne agreed to make advancements to his daughters during his lifetime and to distribute the remainder of his and Evelyn’s estates to the daughters by will. He also stated that should there be any discrepancy in advancements among the daughters, he would equalize their shares in his will.

Mr. Leybourne gave a house to his daughter Martha and her husband. As part of the transaction, he reaffirmed in writing his intention to give to each daughter equally. This reaffirmation also noted that Mr. Leybourne had given his daughter Sylvia a less expensive home and had as yet given nothing to his minor daughter, now Mrs. Allen.

In the next year Mr. Leybourne married the defendant. Mrs. Allen alleged that the defendant then embarked on a course of conduct designed to alienate her from her father and with knowledge of their agreement wrongfully persuaded her father not to comply with it. Mr. Leybourne died the next year leaving a will which devised all his property to the defendant.

Regarding the dismissal of the count alleging tortious interference with an expectancy, the appellate court recognized that early cases had denied recovery because the testator had the privilege of changing his mind. However, the court preferred to follow the reasoning of Dean Prosser.

“There is no essential reason for refusing to protect such non — commercial expectancies, at least where there is a strong probability that they would have been realized. * * * The problem appears in reality to be one of satisfactory proof that the loss has been suffered, instead of the existence of a ground of tort liability.”

190 So.2d at 828-29. The court also relied on the reasoning in McGregor v. McGregor, 101 F.Supp. 848 (D.Colo.1951); Casternovia v. Casternovia, 82 N.J.Super. 251, 197 A.2d 406 (1964); and Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390 (1936), in reaching its conclusion that tortious interference with an expected bequest or gift is an actionable tort.

In Bohannon v. Wachovia Bank & Trust Co., the court found that the plaintiff stated a cause of action by alleging that Laura Bohannon and Maude Trotman had by a conspiracy and false and fraudulent representations deprived him of a share of his grandfather’s estate which his grandfather had formed a fixed intention of providing to him and which he would have received but for the wrongful acts of Laura and Maude.

The Restatement (Second) of Torts, Section 774B (1979), also recognizes tortious interference with an expectancy as a valid cause of action. The Restatement provides that “[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” The Restatement also provides that there must be proof to a reasonable degree of certainty that the bequest or gift would have been made.

Other sources also recognize the validity of a claim based on tortious interference with an expected gift or bequest. The discussion in Annot., 11 A.L.R.2d 808 (1950), relating to interference with wills, reveals that in general most states provide a remedy for tortious interference with the making of a will, the changing of a will, and the revoking of a will. The annotation refers to several cases which support this view.

The annotation discusses Mitchell v. Langley, 143 Ga. 827, 85 S.E. 1050 (1915), which is factually very similar to the instant case. Georgia Langley brought suit against her sister Cora Mitchell for tortious interference with a gift. The complaint alleged that Georgia and Cora had another sister and a half brother; that the half brother was feeble in body and mind and liable to be influenced; that in 1904 the half brother had taken out a benefit certificate for $3,000 payable at his death to his three half sisters equally; that in 1911 in order to persuade the half brother to change beneficiaries, the defendant began writing letters to her half brother representing that the other two half sisters did not care about him but only cared about his money. She also represented that they refused to pay what was necessary to keep the certificate in force. These representations were knowingly false and maliciously intended to injure the plaintiff. The brother did cancel the old certificate and had a new one issued with the defendant as the sole beneficiary. The half brother died, and the defendant collected. Mrs. Langley filed suit claiming $1,000 damages. She recovered, and the defendant appealed.

The Mitchell court recognized that Mrs. Langley, as a beneficiary, had only an expectancy in the .proceeds of the benefit certificate, but held that “[i]t is not necessary in all cases that there should be a vested right in property or a fund in order to have one who fraudulently diverts it from another, who would have received it, declared to be a trustee ex maleficio.” 85 S.E. at 1052. A member of a benefit society, by naming a beneficiary, “creates a certain status” and “[t]he fact that this status has not ripened into a vested and irrevocable ownership of the beneficial interest ... does not authorize a third-party to maliciously and fraudulently destroy the status. . . . ” Id. The court affirmed stating that to recover in this type of action it is necessary to show that a benefit would have accrued to the plaintiff and that the conduct of the defendant was fraudulent and was the proximate cause of loss to the plaintiff.

We believe that the foregoing discussion illustrates that the reasoning of diverse courts and other authorities supports the holding in Allen v. Leybourne, and we agree with that reasoning. That a cause of action is new should not bar recovery if a plaintiff can show he has suffered damages due to the tortious conduct of another.

The sources relied on above also demonstrate that, with regard to tortious interference claims, no real distinction exists between gifts of inheritance through a will and gifts through a revocable trust. Both forms of giving create only an expectancy in the beneficiary and, in both forms, the donor has the privilege of changing his mind. The rationale of the court in Mitchell v. Langley is applicable to and derived from cases dealing with wills, and yet the situation in that case involved a benefit certificate. It is the expectancy status to which this theory of liability applies, and both wills and revocable trusts create expectancies.

Appellees’ last argument is that appellant is precluded from maintaining this tortious interference action as it is a position inconsistent with that pleaded in a prior will contest and equitable estoppel is applicable. Appellant previously filed a petition for revocation in the probate court claiming lack of testamentary capacity to execute either a will or a trust. Appellees contend that this is inconsistent with appellant’s position in this action that Mrs. Obrig had a “fixed intention” of leaving the residue of the trust to appellant.

We find no inherent inconsistency. We do not believe that the position taken by Mrs. Davison in the prior will contest precludes her bringing this tort action against the Feuerherds.

Accordingly, we hold that appellant’s complaint does state a cause of action and, therefore, we reverse the trial court’s order and remand for proceedings consistent with this opinion. However, as did the court in Mitchell v. Langley, we caution appellant that to recover she must prove to a reasonable certainty that she would have been the beneficiary of the trust but for appellees’ malicious interference.

REVERSED AND REMANDED.

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

      . Although appellee is correct in stating that there is authority to the contrary, we find the reasoning in the cases cited here more persuasive. But see Lewis v. Corbin, 195 Mass. 520, 81 N.E. 248 (1907).


author: GRIMES, Judge.

text:
    Kenneth BEATTIE, d/b/a Kenny’s on the Beach, and Kent Insurance Company, Appellants, v. Patricia L. BROTZ and Gary L. Brotz, husband and wife, Appellees.
    No. 80-1049.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1980.

      A. Douglas Grace, Jr. of Grace & Couse, P. A., Fort Myers, for appellants.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, for appellees.
   GRIMES, Judge.

Appellants, who were the defendants below, bring this appeal from a judgment entered against them in a slip and fall case. Their argument that the jury verdict was against the manifest weight of the evidence is without merit. However, we find it necessary to reverse the cost order to the extent that it taxes the costs of copies of depositions.

In Florida Greyhound Lines Inc. v. Jones, 60 So.2d 396 (Fla.1952), the supreme court held that costs of copies of depositions were not taxable. Our court enforced this rule in Ryan v. Beucher, 360 So.2d 15 (Fla. 2d DCA 1978), and again in Paul v. Allstate Insurance Co., 380 So.2d 1307 (Fla. 2d DCA 1980). We recognize that one of our sister courts has held to the contrary on the premise that the rule in Greyhound is out of date and that the decision is distinguishable. State Farm Mutual Automobile Insurance Co. v. Sampaio, 374 So.2d 617 (Fla. 4th DCA 1979); Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979); County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978). We agree that Greyhound is out of date, but we cannot see how it can be distinguished. Therefore, consistent with the admonition of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), we must once again reject the effort to tax the costs of copies of depositions.

Pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), we certify this decision to the supreme court as being in direct conflict with decisions of another district court of appeal. We affirm the judgment but remand the case for the entry of a new cost order which excludes the cost of copies of depositions.

HOBSON, Acting C. J., and BUCK, MORISON, Associate Judge, concur.

      . The reasons why the rule ought to be changed are well explained in Moore v. Cau-ghey.

      . The Fourth District Court of Appeal certified the same issue in Moore v. Caughey, but the parties did not file a petition for certiorari. Because of the small amount of money which this type of case usually involves, if the rule of Greyhound is going to be changed, it may have to be done by court rule or statute.


author: HOBSON, Acting Chief Judge.

text:
    James CRAMMER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1222.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1980.

      Jack 0. Johnson, Public Defender, David A. Davis, Asst. Public Defender, and Steve Houchin, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The appellant appeals the lower court’s denial of a defense motion to suppress based upon the insufficiency of the affidavit for a search warrant. Appellant also appeals the lower court’s order finding appellant guilty of burglary of a dwelling with the intent to commit petit theft. The basis for the second challenge is that the lower court erred in allowing evidence of a crime for which the appellant was not on trial to be introduced at the trial in question.

We find that the affidavit was sufficient to support the search warrant in this case; however, we agree with appellant that the lower court erred in admitting collateral evidence testimony at his trial. Accordingly, we reverse on this point alone.

Appellant was on trial for having stolen a radio-tape player and an electric can opener from the victim, Rosalie Young. The items in question were found missing from Young’s apartment while she was in the hospital. The items were subsequently found in appellant’s apartment.

The victim of another robbery, Robert Perry, who lived in the same duplex as Young, was permitted to testify during the trial in question about the burglary of his apartment. Perry identified a clock and a rug which had been stolen from his apartment as part of the state’s evidence against appellant. A police officer later testified that the clock and the rug were recovered from appellant’s apartment. Defense counsel objected throughout Perry’s testimony and moved for a mistrial because of the prejudicial nature of it.

Evidence as to collateral crimes is inadmissible under the Williams Rule if its only purpose is to establish bad character or propensity to commit the crime. Williams v. State, 110 So.2d 654 (Fla.1959). Although collateral crime evidence is admissible to show a common plan, scheme, pattern of criminality or to establish identity, it is not admissible where the collateral crime is merely similar to the crime for which the defendant is on trial.

In Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979), there were two criminal episodes involved. Both involved burglary, a sexual assault, an entry through a window, and both were done at the same time of night within three weeks of each other. Additionally, money was taken in both instances. This court held these similarities were not enough to make evidence of one burglary admissible at a trial on the other.

In Bradley v. State, 378 So.2d 870 (Fla. 2d DCA 1979), three burglaries were committed within the same neighborhood and within two weeks of each other. There were similar fabric marks found at each residence where the entrance was made through a window. This court held that evidence of one of the burglaries was inadmissible at a trial on the other burglary. This court stated that a requirement of more than a mere similarity between the crimes had to be met in order to make such evidence admissible under the Williams Rule exception.

In the present case, there were two burglaries involved in the same duplex within eight days of each other. As there were only general similarities between the crimes and displayed nothing particularly unique about their commission, it was error for the trial court to admit the testimony concerning the Perry burglaries during the trial on the Young burglary.

REVERSED and REMANDED for a new trial.

GRIMES and DANAHY, JJ., concur.


author: SHARP, Judge.

text:
    Sandra THIBODEAU, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 80-590.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    R. David Ayers, Jr., Winter Park, for appellant.
    Sylvia A. K. Drusa, Orlando, for appellee.
   SHARP, Judge.

Sandra Thibodeau appeals from a final judgment denying her any recovery against Allstate Insurance Company. She suffered in excess of $8,000 in medical injuries on November 10, 1978, when a car owned and driven by Brian Rex Thibodeau was involved in an accident. Brian was killed. Sandra claimed she was entitled to $4,000 in personal injury protection payments from Allstate under Brian’s policy with Allstate because the policy stated there was $5,000 coverage for “personal injury protection” with a $4,000 “deductible” for “relatives” residing in the household. The policy provided:

The amount of any deductible stated in the declarations or in a schedule of the policy shall be deducted from the total amount of all sums otherwise payable by the Company with respect to all loss and expense incurred by or on behalf of each person to whom the deductible applies . . . and if the total amount of such loss and expenses exceeds the deductible, the total limit of benefits the Company is obligated to pay shall then be the difference between such deductible amount and the applicable limit of the Company’s liability. (Emphasis supplied).

Allstate paid $1,000 on Sandra’s behalf and denied further liability. We affirm.

This case is controlled by the provisions of section 627.739(1), Florida Statutes (1977). The statute required an insurer to offer the policy owner “deductibles, in amounts of $250, $500, $1,000, $2,000, $3,000, and $4,000, said amount to be deducted from the benefits otherwise due each person subject to the deduction. . . .” (Emphasis supplied). As a “resident relative,” Sandra was subject to the “deductible” amount of $4,000 under Brian’s policy, and the amount “otherwise due” was $5,000. Under this statute Allstate’s total liability was $1,000. Industrial Fire & Casualty Insurance Company v. Cowan, 364 So.2d 810 (Fla. 3d DCA 1978).

The appellant argues the policy statement of “$5,000 coverage” is ambiguous and misleading because under no circumstances is $5,000 ever payable if it is subject to a deduction, and the general public assumes, upon reading such a statement, that there is $5,000 coverage after the insured pays the first $4,000. This is an appealing argument because clearly the “deductible clause” is given a double effect. However based on the record before us we are unable to conclude an ambiguity exists because the policy explanation of the “deductible” tracks the insurance statute clearly and precisely. If this result is contrary to public policy or understanding and expectation, the legislature should revise section 627.739(1).

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Sandra and Brian were first cousins living together in the same household. Appellant agreed in her appeal she was subject to the “resident relative” deductible clause.

      . A more accurate statement would have been: $1,000 coverage after the insured pays the first-$4,000 loss.


author: DAUKSCH, Chief Judge.

text:
    Gayle A. GURGANUS, Appellant, v. STATE of Florida, Appellee.
    No. 79-502.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.

      John C. Englehardt of Butler, Englehardt & McDonald, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order revoking probation. On April 10, 1978, appellant was placed on probation for one year. On April 9, 1979, the term of the probation was extended six months without a hearing and only because the probation officer said she talked to the appellant and it was agreed the probation could be extended in lieu of a hearing on alleged violations. It is not for a probation supervisor to make agreements with probationers about the length of the term of probation. In fact, even a judge cannot extend the probationary term without a hearing, with due process, and having the accused violator before the court. Sec. 948.06, Fla.Stat. (1979); Patrick v. State, 336 So.2d 1253 (Fla. 1st DCA 1976). Appellee’s argument that appellant waived the notice and hearing is without merit. There is no showing that there was a knowing, intelligent and voluntary waiver, properly made and before the court. In fact, there is a good possibility the appellant had a valid legal defense to the first allegation of violation. Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980); Baran v. State, 381 So.2d 323 (Fla. 5th DCA 1980); Freiberger v. State, 343 So.2d 57 (Fla. 4th DCA 1977). This defense was from the testimony of the probation supervisor who said the appellant failed to make some required payments because she was out of work.

The court lacked jurisdiction to revoke the putative probation because the attempted extension was invalid. Thus the order revoking probation is reversed and the appellant is ordered discharged.

REVERSED.

ORFINGER and COBB, JJ., concur.


author: ORFINGER, Judge.

text:
    Lindsey FUTCH and Jackie C. Futch, his wife, Appellants, v. RYDER TRUCK RENTAL, INC., Appellee.
    No. 80-337.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    James W. Smith and C. Anthony Schoder, Jr., Daytona Beach, for appellants.
    Chobee Ebbetts, Daytona Beach, for ap-pellee.
   ORFINGER, Judge.

The trial court dismissed appellants’ third amended complaint with prejudice after ruling in the same order that the law of Maryland, including its doctrine of contributory negligence, would be the law applied in this case. Appellants contend that the trial court erred in dismissing with prejudice, as well as determining to apply Maryland law. We agree on both points and reverse.

From the third amended complaint, the allegations of which we assume to be true for the purpose of this discussion, we discern the facts which follow. Appellee Ryder is in the business of leasing trucks, and it leased a tractor to Ardmore Farms, Lindsey Futch’s employer, to be used to haul refrigerated trailers throughout the United States and Canada. The tractor was leased and serviced in DeLand, Florida. In order to check the refrigeration unit, it becomes necessary for the driver to periodically climb up on the rear of the tractor, between the tractor and the trailer, and this was known or should have been known to Ryder. Therefore, it is alleged, it was the duty of Ryder to equip the rear of the tractor with a cat walk, decking or deck plating, hand rails or steps to provide reasonably safe access and footing for the driver. It is further alleged that the absence of this equipment produced an unreasonable risk of harm when the driver was compelled to climb upon the narrow frame of the tractor or the rounded fuel tanks attached to its frame, producing an uneven and inadequate footing.

It was then alleged that the described defects caused appellant Lindsey Futch to fall from the tractor and suffer an injury while performing such inspection during a stop at a rest area on 1-95 in Maryland. Suit was filed against Ryder and others on counts of negligence, breach of contract, breach of warranty and strict liability.

Although Ryder filed a motion for summary judgment in addition to a motion to dismiss, the motion for summary judgment was not ruled on. The motion to dismiss was grounded on the alleged absence of a duty from Ryder to Futch. Ryder alleged that because Futch was fully aware of the condition of the tractor and any defects therein were open and obvious, no cause of action was stated either in strict liability, general negligence or implied warranty. The trial court held that he would apply the law of Maryland including its doctrine of contributory negligence, and dismissed the third amended complaint with prejudice, without assigning any reason for the dismissal.

Appellee Ryder supports the order appealed from by saying that the trial court was correct in applying the lex loci delecti rule since the accident happened in Maryland. Ryder maintains that the trial court properly concluded that the plaintiff did not and could not allege the breach of a duty owed by defendant to plaintiff where plaintiff fell from that part of the tractor-trailer with which he was familiar, under the Maryland contributory negligence doctrine.

In fairness to the trial judge, the rule of lex loci delecti appeared to control this case when the order was entered. However, since that time, this court has held that the harsh rule of contributory negligence is contrary to the public policy of this state and should not be applied under the lex loci delecti rule. Olsen v. State Farm Automobile Insurance Co., 386 So.2d 600 (Fla. 5th DCA 1980). Shortly prior to oral argument in this case the Supreme Court rendered its opinion in Bishop v. Florida Specialty Paint Company, 389 So.2d 999 (Fla.1980), receding from the inflexible lex loci delecti rule and adopting instead the “significant relationships test” as set forth in Restatement (Second) of Conflict of Laws (1971), §§ 145, 146. Under Bishop, it is clear that Florida has more significant relationships to this occurrence than does Maryland. The tractor was contracted for, delivered, serviced and maintained in Florida and any negligence or other breach of duty or of contract in not properly equipping it or in not properly maintaining it took place in Florida. The fact that the rig was stopped in Maryland when Futch fell from it is pure happenstance and does not connect Maryland to the accident. Thus, the trial court erred when it applied Maryland law to this incident.

But, says appellee, whether we apply the law of contributory negligence (Maryland) or comparative negligence (Florida), to state a cause of action a plaintiff must first allege the breach of a duty. Relying on Royal, Ryder contends no breach of a duty occurs when a product’s danger is open and obvious to the user. Royal v. Black and Decker Manufacturing Co., 205 So.2d 307 (Fla. 3d DCA 1967), cert. den. 211 So.2d 214 (1968). Appellee asserts that here, if a cat walk, steps, platform or other equipment were not supplied and the driver had to climb upon the narrow frame and rounded fuel tanks to check his refrigeration unit, this was obvious and well known to him, so there was no latent defect. Appellee says that Royal stands for the proposition that since a supplier has no duty to make an “accident proof” product, there is no breach of duty when a user is injured by a defect or danger which could have been avoided, but which is open and obvious to all.

In Royal, a workman was electrocuted when he attempted to connect the plug of a power drill into an extension cord. In the suit against the manufacturer of the drill, the plug was not shown to be unusual in any respect, but allegedly could have been designed in such a fashion as to make more remote a circumstance such as occurred there. An order dismissing the cause with prejudice was affirmed because “the plaintiff has failed to allege any facts from which reasonable men might conclude that the plug was unreasonably dangerous or defective.” (emphasis supplied). Id. at 310. The court held that there was no requirement upon a manufacturer to make an accident-proof or fool-proof product, but instead the concern was to protect the user from the unreasonably dangerous product or one fraught with unexpected danger.

The allegations here differ markedly from Royal. Here appellant alleged that the tractor was unreasonably dangerous because of the absence of the devices needed for safe footing in the light of Ryder’s knowledge, actual or constructive, of the specific use to which the tractor would be put, and that it was defective. In Royal, the plug was not unusual, was not unreasonably dangerous and was not defective, but could have been made better. The factual situations are not the same.

The open and obvious nature of the defect does not eliminate the cause of action. As was stated by our Supreme Court in Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979):

The modern trend in the nation is to abandon the strict patent danger doctrine as an exception to liability and to find that the obviousness of the defect is only a factor to be considered as a mitigating defense in determining whether a defect is unreasonably dangerous and whether plaintiff used that degree of reasonable care required by the circumstances.

Id., at 1169.

The doctrine of Auburn Machine Works has been correctly extended to lessors of equipment in Ford v. Highlands Insurance Co., 369 So.2d 77 (Fla. 1st DCA), cert. den. 378 So.2d 345 (1979), and we apply it here. Consequently, the third amended complaint stated a cause of action against Ryder and should have been sustained. The order appealed from is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J., and CLARK, HAROLD R., Associate Judge, concur.


text:
    Sara G. DAVIS, formerly Sara G. Fisher, Appellant, v. James C. FISHER, Appellee.
    No. 79-284.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.

      Leonard V. Wood, Altamonte Springs, for appellant.
    Jack T. Bridges, Sanford, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order modifying a final judgment in a marriage dissolution case. Because the evidence is insufficient to support a reduction in the amount of support the final judgment provided for the children, we reverse the order of modification. The evidence is totally one-sided in favor of the mother who is the custodial parent. It is agreed by both parties that due to “inflation” the needs of the children have increased since the final judgment and it is clear from the evidence that appellee’s income has increased since the judgment. The mother’s remarriage has no bearing upon the father’s duty to support. In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977). See also Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980).

The father has convinced the trial judge, who was not the trial judge when the final judgment was entered, to go behind that original final judgment and, in effect, review the final judgment and change its terms. It is not the function of one trial judge to review another’s judgment. Groover v. Walker, 88 So.2d 312 (Fla.1956); McBride v. McBride, 352 So.2d 1254 (Fla. 1st DCA 1977). It is also error for this trial judge to have taken parol evidence concerning a property settlement agreement upon which the final judgment was based. Because the property' settlement agreement was ratified by the court and incorporated in the judgment, it rises to the dignity of that judgment and the trial court had no authority to review it. Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979); Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979); Rothenheber v. Jessup, 360 So.2d 798 (Fla. 2d DCA 1978); Chapin v. Naurison, 325 So.2d 413 (Fla. 3d DCA 1976).

The order modifying the final judgment (which order is entitled “Final Judgment” and was rendered October 1, 1979) is reversed and this cause is remanded for the assessment of attorney’s fees for appellant’s attorney at the hearing for modification and on appeal.

The order of January 11, 1979, which reduced the amount of child support pending compliance with a discovery order, was also appealed. This court has jurisdiction to consider that order, notwithstanding the position of appellee. Fla.R.App.P. 9.130(g). That order, which has the ultimate effect of punishing the mother and children because the present husband of the mother refused to turn over his bank account records, was an abuse of discretion and is reversed. If the trial court should require the mother to keep a general accounting of the funds she receives and spends for the children, then such would be a valid exercise of the authority of the court. Sec. 61.13(1), Fla.Stat. (1979). But to punish the mother before an accounting was ordered and for the actions of her spouse, albeit contemptuous of the court on the spouse’s part, is error.

The orders are reversed and the original final judgment is reinstated. This cause is remanded for assessment of a reasonable attorney’s fee for the services of appellant’s attorney below and upon appeal.

REVERSED AND REMANDED.

ORFINGER and COWART, JJ., concur.


author: MILLS, Chief Judge.

text:
    SEA GULL STEAK HOUSE & SNACK BAR and Old Republic Insurance Company, Appellants, v. Roosevelt ALEXANDER, Appellee.
    No. SS-130.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    John F. McMath, Miami, for appellants.
    Edward Schroll, Miami, for appellee.
   ON PETITION FOR REHEARING GRANTED

MILLS, Chief Judge.

In our initial opinion, we reversed an award for temporary total disability on the basis that the evidence failed to establish that Alexander was, by reason of injury, unable to work. In so ruling we noted that Alexander did not testify that he was unable to work but only that he was “out of work.”

The petition for rehearing points out that Alexander’s statement as to how long he was “out of work” was in response to the question, “How long was it you were out of work because of the effect of the accident ?” (Emphasis supplied)

In light of this clarification of the context of the testimony, we agree with Alexander’s contention that there was competent substantial evidence to support the finding of temporary total disability.

The petition for rehearing is granted; our opinion of 4 November 1980 is vacated and set aside; and the order appealed is affirmed.

Our order of 4 November 1980 awarding an attorney’s fee of $500.00 to Alexander is also vacated and Alexander is awarded an attorney’s fee of $1,000.00.

McCORD and THOMPSON, JJ., concur.