author:
COWART, Judge.
      FRANK D. UPCHURCH, Jr., Judge, SHARP, Judge,

text:
    Beverly CRONEBAUGH, Appellant, v. Rufus Oscar VAN DYKE, Jr., Appellee.
    No. 80-1267.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Rehearing Denied June 23, 1982.

      Robert L. Thomas, Apopka, for appellant.
    Hubert W. Williams of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P.A., Orlando, for appellee.
   COWART, Judge.

Appellant, the former wife, sued appellee, her former husband, for alleged arrearages in child support. The trial court entered summary judgment for the father and dismissed the cause, ruling the mother did not have standing to enforce the alleged arrear-age because, at the time the child support payments were supposedly not paid, the “children” were over eighteen years of age and able to sue in their own right. We affirm.

The parties were divorced in 1964. The dissolution decree incorporated an agreement which provided that the father would pay child support for the parties’ three children in the mother’s custody until each child attained majority, died, married or became self-supporting. The final decree also provided that the father would pay the costs and expenses incurred by each child in attending a college or university.

The appellee father paid to the appellant custodial mother the stipulated child support for each child until the particular child reached 18 years of age and even thereafter until the particular child moved away from the mother’s home and into his own apartment or fraternity house in September following his 18th birthday. Thereafter the father paid the required support amount and costs and expenses of college directly to the child. The mother waited until after the two oldest children had each received directly from their father “monies far in excess” of the father’s formally adjudicated support obligation and were both over 21 years of age; then the mother sued the father for the amount of support due under the support judgment for the three years she did not receive the support payments, saying that by the terms of the final judgment her right to receive the child support accruing after the child was 18 years of age was vested in her. The father maintained that he had satisfied his obligation by his payments directly to the children, rather than through their mother. The mother moved for summary judgment, admitting the father had paid the support directly to each child, but asserting that the support obligation was due her. The father filed a motion for judgment on the pleadings or alternatively a motion to dismiss for failure to state a cause of action, arguing that, with regard to support obligations admittedly due a “child” between the ages of 18 and 21, enforcement rests with the child and therefore the mother did not have standing to sue. On these facts and procedural setting the trial court granted summary judgment for the father.

The trial court’s order can be affirmed on either of two grounds. First, the trial court correctly determined that the wife lacks standing to enforce any support obligation due the child after the child turns 18. A minor child has a legal right to support from both parents in keeping with its needs and the parents’ ability. This parental duty to support a minor child is created by law, exists before and after dissolution of the marriage to which the children were born, and is independent of any settlement agreement made attendant upon dissolution. The parents’ obligation of support cannot be bargained or stipulated away by parents so as to deprive the minor of the benefit thereof. However, a minor is under a disability of nonage that prevents the minor from suing to enforce its own rights. While it is under the disability of minority, the child’s right to support must be enforced by a legal representative, such as a guardian or other like fiduciary, a guardian ad litem or a next friend, but more commonly it is enforced against one parent by an opposing parent, as natural guardian, or by a governmental agency. In each event, the recipient of the child support receives the support monies, not in his own right or for his own benefit, but in trust for the cestui que trust, who is the child. Child support is a right that belongs to the child.

The same event that removes the child’s disability — its arrival at the age of majority — is usually the same event that terminates the parents’ duty to support. Hence, the problem of an emancipated child suing his or her parent for nonsupport would normally never arise. However, the enactment of section 743.07(3), Florida Statutes (1973), allows such a result. Section 743.07(3) does not affect rights and obligations existing prior to July 1, 1973, and the father’s prior duty of support is therefore not affected. However, the effect of section 743.07(1), Florida Statutes (1973), is to remove the disability of nonage of persons who are 18 years of age and enables them to enjoy and suffer the rights, privileges and obligations of all persons 21 years of age or older. This means a person 18 years of age or older has the right to receive, and to assume the management of, his own estate, to contract and to be contracted with and to sue and to be sued. This effectively gives such person a new remedy — the right to sue in his own name to enforce his own legal rights. By virtue of this statute, young adults become legally emancipated, sui juris and can no longer accurately be said to be in the custody of either parent.

Provisions in dissolution settlement agreements relating to payment of child support, even when incorporated by reference in final judgments, serve only to formalize and document the promisor’s pre-ex-isting legal duty of support, to state the frequency and amount of periodic payments, theretofore unliquidated, which at that time the relevant parties agree will discharge the promisor’s support duty and to recognize who is to receive the support on behalf of the minor. The recipient receives the sums as trustee for the children. That such agreements are not the basis for the right to child support is demonstrated by the fact that they are subject to modification by the court as to these provisions. If support orders, whether based on settlement agreements or not, were personal to the minor’s custodian, who is the usual recipient, the obligation would not survive the death of the designated payee and this is not true. The trustee nature of the recipient of child support is also illustrated by the last sentence in section 61.13(1), Florida Statutes (1979), which provides that the court entering the support can require “the person or persons awarded custody of the child or children to make a report to the court on terms prescribed by the court as to the expenditure or other disposition of said child support payments.” The law does not require one to account for his own personal funds.

To the extent that in an agreement a parent may, as here, agree to pay sums for the benefit of a child which are in excess of the duty imposed by law, such as the cost of higher education, the child, who is a third party donee beneficiary of any such executory contract, has a vested pecuniary interest in performance. In cases of this sort, as in contract law generally, it is the beneficiary, not the promisee, who is entitled to performance and who, subject to defenses and conditions, has a cause of action against the promisor and who is entitled to receive the performance which discharges the obligation. Since child support is truly a right of the child and can be enforced by the child once he or she turns eighteen, the wife in the present case does not have standing to sue.

In relying on Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978), the trial court relied on the following passage:

The award of child support, although made to the mother as the child’s natural guardian, is solely for the benefit of the child, who, because of the disability of non-age, lacks the legal status to bring suit directly against his parent for support. Under Florida law, when a child reaches eighteen years of age, this disability of non-age is removed, and if an obligation of support exists, the child may proceed in his own right in a court of competent jurisdiction to establish such obligation. See Rudnick v. Solomon, 311 So.2d 385 (Fla. 3d DCA 1975). The parent who formerly had legal custody of the child has no pecuniary interest in such litigation. Thus, once a normal child reaches majority, a parent has no standing to seek support money for that child in the courts of this state.
360 So.2d at 485.

This appears to be a good and applicable statement of law. A person who has reached the age of 18 can no longer accurately be called a child. Instead, he or she is a young adult who can remove himself from the custody of his mother. Although the supreme court has interpreted agreements to pay support until majority to mean until 21, once the child reaches 18 he can enforce this support obligation himself.

Notwithstanding the standing issue, the trial court’s summary judgment can be affirmed on the issue of payment. In this case there is no issue but that the father had paid the sums due after the children reached 18 years of age directly to the children when they moved away from home. This payment satisfied and discharged the father’s duty. This was sufficient alone to justify the summary judgment entered by the trial court. However, realizing that the children were not parties to the cause, the able trial judge carefully provided that the dismissal of the mother’s cause was “without prejudice to the recipient of the obligation to seek enforcement in a separate action.”

The trial court was correct in granting the father’s motion for summary judgment and the order is hereby

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

SHARP, J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

specially concurring:

I do not interpret the majority opinion as limiting in any way the right of parties to contract in a dissolution agreement or to prohibit the enforcement of the agreement upon its breach. In this case, support was payable until the children reached “majority.” However, the age of majority was changed after execution of the agreement. While the obligation of support which arose pursuant to the agreement was to continue until the affected children reached twenty-one years, Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975), the children were no longer minors and had acquired all the rights and privileges of adults. As adults, they themselves could contract, give aequi-tances, sue in their own right and live where they wished. Conversely, the “custodial” parent had no further legal duty to the newly emancipated children, although the parent may have voluntarily continued to support or maintain a home for the individual.

While I concede that a custodial parent may make financial commitments for the benefit of his or her children, such as car or house payments, and should be allowed to do so as suggested by the dissent, I disagree that the majority opinion obliterates this right. The only requirement is that such eventuality be anticipated in the dissolution agreement. In the event that it is anticipated, I see no obstacle to its enforcement created by the majority opinion.

SHARP, Judge,

dissenting.

I dissent in this case because under principles established by the Florida courts to handle “limbo” dissolution decrees (like the one involved in this case), the custodial parent still should have standing to enforce the child support obligation, even though the children have attained eighteen years of age.

These parties were divorced in 1964. The final judgment (allegedly based on an agreement by the parties) entered by Judge W. Troy Hall, Jr. provided:

7. The Defendant shall pay to the plaintiff as child support for the three children . . . the sum of $125.00 per month for each child who is living with the Plaintiff and who is a minor. Such child support payments shall continue even though the child is away from the home of the Plaintiff temporarily such as at camp, school or vacation.... (Emphasis supplied).
* * * * * *
10. The Defendant shall pay the costs and expenses incurred by each child in attending a college or university.

In 1980, the former wife and mother brought suit to collect arrearages in child support due for the two older boys, Rufus and Keith, who at the time of this litigation were over twenty-one years of age. She alleged by verified pleadings that she had not received the bulk of the child support payments which accrued while they were between eighteen and twenty-one years of age — some eight thousand dollars ($8,000). The appellee (Rufus Van Dyke) asserted three affirmative defenses in his pleadings and deposition based on his claim that he had paid the full amount of the child support directly to the respective children after they went to college and lived (during the school year) in their fraternity houses and apartments, and that this course of action was taken by him with his former wife’s knowledge and acquiescence. In her verified reply, the appellant, Mrs. Cronebaugh, alleged she had made repeated demands for payment and had not agreed to this arrangement.

At this point, appellee moved for a Judgment on the Pleadings or Motion to Dismiss for Failure to State a Cause of Action, on the sole ground that appellant lacked standing to enforce the child support obligation after the children attained the age of eighteen years. I cannot agree with the majority opinion that the trial court reached (or should have reached) the merits of any of the appellee’s defenses (including payment) since that was denied by appellant’s verified pleadings, nor did the argument of counsel and statements of the court at the hearing on the motion address them.

If a child support obligation can be fully discharged by payment to a person not specified in the dissolution judgment, that makes it, for all practical purposes, unenforceable by the former spouse. Note number 11 of the majority opinion ignores the realities of its decision. Whether or not the payments were made, whether required by a judgment or an agreement, the former spouse will not be able to enforce them because this opinion holds she lacks standing to sue. Further, the majority ignores the realities that a former spouse often has made financial commitments for the benefit of her children, such as car payments and house payments, which I think she should be allowed to do. The majority opinion obliterates this right.

The effect of this decision is to modify retroactively, the “limbo” dissolution decrees, which I think, is contrary to Florida law. It is well established that separation agreements and dissolution judgments effective before July 1, 1973, which require child support payments until a child is twenty-one or until he attains his “majority” are enforceable until the child reaches the age of twenty-one (21). Section 743-07(1), Florida Statutes (1973), which changed the age of “majority” to eighteen (18), has no effect on the rights and obligations of parties under a dissolution judgment, prior to its effective date. Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Burgdorf v. Burgdorf, 372 So.2d 988 (Fla. 2d DCA 1979); Hoffman v. Hoffman, 371 So.2d 1061 (Fla. 3d DCA 1979). Swallick v. Swallick, 351 So.2d 1119 (Fla. 4th DCA 1977). In each of these cases the party seeking enforcement of a child support obligation was the mother (or former wife) and the children were over eighteen (18) years of age.

The lower court relied upon Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). I agree with Holmes v. Holmes, 384 So.2d 1295, 1296 (Fla. 2d DCA 1980), that Kern does not apply to this case:

The trial court’s reliance on Kern v. Kern, supra, was misplaced. There the wife had filed for modification of the child support provisions of a final judgment of dissolution of marriage, seeking to require the husband to provide for the college education of the adult children of the parties where there had been no agreement to do so and the final judgment did [not] so provide. The district court there held that absent an agreement, a divorce court had no jurisdiction to require a parent to furnish an adult child with support in the form of a college education. In a footnote to that holding, the court emphasized: ‘Nothing in this opinion should be construed as limiting the power of a court to enforce a stipulated to agreement between the parties in a dissolution proceeding.’ 360 So.2d at 486, n.6. (Emphasis supplied).

In this case, the agreement between the parties contemplated the former husband would pay child support to the wife while the children were in college, until they reached twenty-one (21) years of age, or became emancipated in other ways not applicable. Prior to 1973 the former wife had standing to enforce that obligation and receive the payments because she was the custodial parent of the non-emancipated children, and because she was a party to the agreement which is the source of Van Dyke’s obligations. Neither her right to enforce nor Van Dyke’s obligation to pay should be affected by section 743.07(1), Florida Statutes (1973). The fact that a child attains eighteen years should not make the child support obligation unenforceable by the former spouse, whether it is a post 1973 dissolution judgment or not. The fact that an ostensibly third party beneficiary (the child) can, if it chooses, enforce an agreement incorporated in a judgment, should not deprive one of the parties in privity (the wife in this case) of the right to enforce the provisions of that same agreement or judgment.

      . Rufus Oscar Van Dyke III was born January 15, 1957 and Keith Camper Van Dyke was bom February 9, 1958. Appellant sought to recover child support for Rufus from September 1975 through January 1978 and sought to recover child support for Keith from September 1976 through February 1979. When the instant complaint was filed (March 10, 1980), Rufus was 23 years old and Keith was 22 years old.

      . The judge’s order specifically states:
      Upon consideration it is ORDERED that: It appearing that all claims for past due support accrued subsequent to the child obtaining majority age, the legal right to enforce such obligation rests with the child, not with the mother.
      Summary Judgment is GRANTED and cause is DISMISSED, without prejudice to the recipient of the obligation to seek enforcement in a separate action.
      See: Kern v. Kern, 360 So.2d 482 (4 DCA—1978).
      DONE AND ORDERED in Chambers at Orlando, Florida, this 8th day of September, 1980.

      . See § 61.09, Fla.Stat. (1979).

      . Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955).

      . See Fla.R.Civ.P. 1.210(b).

      . See §§ 409.2564, 88.101, 88.181(2), Fla.Stat. (1979).

      . Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979).

      . See also § 1.01(14), Fla.Stat. (1979) (defining “minor” as any person who has not attained the age of 18 years).

      . See § 61.13(1), Fla.Stat. (1979).

      . See generally 4 A. Corbin, Contracts, §§ 774, 776, 779A, 811, 812 (1951).

      . This opinion does not address the situation where one spouse by contract with the other has agreed to support his or her adult child but has failed to pay or provide such support. For example, where a husband has agreed to pay the costs of a college education, or to pay a wife the cost of maintaining a home for such child past its 18th birthday.

      . Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975).

      . Not only does the record contain the father’s deposition testimony, but the wife’s motion for summary judgment admits the father made the support payments directly to each child when he became 18 and moved off to college and the wife’s counsel conceded this fact at the hearing on a motion for rehearing.

      . "Limbo” dissolution decrees are those rendered prior to July 1, 1973 which require child support payments until a child attains twenty-one years or his age of “majority.”

      . The judgment was later amended to increase this amount to $150.00 per month per child.

      . The parties’ younger daughter had recently attained eighteen years of age and the child support payments for her were also not being received, although they were not involved in this litigation.

      . The defenses asserted were Laches, Waiver and Estoppel, and accord and satisfaction.

      . Shepard v. City of Palatka, 399 So.2d 1044 (Fla. 5th DCA 1981); Squitieri v. Aetna Casualty & Surety Co., 382 So.2d 730 (Fla. 5th DCA 1980); Jones v. Ryder Truck Rental, Inc., 382 So.2d 869 (Fla. 5th DCA 1980).

      . Appellee’s counsel said all the money was paid to the boys:
      But we need not get to that issue today. The issue today is on the motion on Judgment on the Pleadings as I have raised it and is whether or not Mrs. Cronebaugh has any standing in this court to bring this action. The legal proposition that I am citing the court is that once an individual attained the age of 18, there may be a legal duty of support to that individual imposed by previous court order but it is to that individual and not to his mother once he has reached the age of 18 and she is no longer guardian and no longer has a proprietor’s interest in the support payments due him.

      . Often times it is the child support payments that allow a former spouse to maintain a sizable home for the children during their years of high school and college. In reality, as every parent learns at this stage, the children are away more often than not. But many families maintain their over-sized “nests,” during this final transition stage.

      .Public policy encourages the enforcement of child support obligations. The majority erodes that policy by leaving enforcement solely to the discretion of the child once he or she reaches the age of majority. Such a holding ignores the natural reluctance of a child to sue his or her parent. If equity so requires, a trial court is free to use its equitable powers to prevent an unjust double payment result. Payment directly to a child may not totally satisfy a spouse’s child support obligation under a dissolution judgment. The wife to whom child support payments are payable should not be required to chase down any party the husband selects to pay in order to secure money to defray necessary child support expenses such as mortgage payments on the family home. However, the contrary should follow if the wife by her conduct has accepted or acquiesced in the manner of payment chosen by the former husband.

      . The judgment specifically provided: “Such child support payments shall continue even though the child is away from the house of plaintiff temporarily, such as camp, school or vacation.”

      . Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975).

        .Cf. Catches v. Catches, 409 So.2d 1199 (Fla. 1st DCA 1982) [1982 F.L.W. 475] (Evident standing of wife to seek reinstatement of contempt order for nonpayment of support after children have reached their majority).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHNSON ELECTRIC COMPANY and Cincinnati Insurance Company, Appellants, v. Thomas H. PROVENZANO, Appellee.
    No. AF-380.
    District Court of Appeal of Florida, First District.
    May 14, 1982.
    Rehearing Denied July 1, 1982.
    Douglas Edward Daze of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appellants.
    Lawrence L. Lidfeldt, Maitland, for ap-pellee.
   PER CURIAM.

The order is AFFIRMED with two modifications. The word “remedial” is deleted from paragraph 8 of the Deputy Commissioner’s findings regarding further care and treatment to be provided by Dr. Levreault. In paragraph 2 of the decretal portion of the order, “palliative” is substituted for “remedial.” Remedial treatment is inappropriate following the date of maximum medical improvement. Killebrew Manufacturing Co. v. Dawson, 401 So.2d 876 (Fla. 1st DCA 1981).

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    Jack Andrew McELVEEN, Appellant, v. STATE of Florida, Appellee.
    No. AD-262.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    Rehearing Denied July 1, 1982.

      Michael E. Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

McElveen appeals from judgments and sentences imposed for burglary with assault, and sexual battery by the use of physical force not likely to cause serious personal injury. He urges three points on appeal. We reverse in part as to his first point and affirm the remaining two.

As to Point I, the appellant argues that the trial court erred in excluding the appellant’s proffered evidence concerning the victim’s prior sexual activities and reputation in the community for unchastity. He contends that this evidence tended to establish a pattern of conduct which was legally relevant to the issue of consent in accordance with Section 794.022(2), Florida Statutes (1979).

The defense’s proffered testimony indicated that the victim was an unchaste woman. Most of this evidence revealed that the victim had a reputation for promiscuity. Such evidence consisted of the victim’s having adulterous affairs, picking up strange men at bars, and making dates with truck drivers over a C.B. radio. One witness saw the victim leave local bars with strangers. There was additional evidence relating to specific instances of sexual conduct in which one local citizen admitted having a sexual relationship with the victim a year before the alleged crime, and another testified she had seen the victim in bed with her ex-husband on two separate occasions. The trial court declined the admission of the proffered evidence, but permitted testimony revealing that co-defendant Watt, also charged with aiding and abetting the sexual battery, participated in a sexual encounter with the victim the night before the alleged crime.

The appellant’s proffer actually involves two types of evidence: hearsay/reputation evidence and evidence of specific sexual conduct. At common law the former type of evidence was admissible into evidence. See Thomas v. State, 249 So.2d 510 (Fla. 3d DCA 1971). Section 794.022(2), Florida Statutes (1979), provides:

Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under S. 794.011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.

(e. s.) A commentator has suggested that the omission of hearsay/reputation evidence from the statute requires that the common law be followed. See, Note, Florida’s Sexual Battery Statute: Significant Reform But Bias Against the Victim Still Prevails, 30 U.Fla.L.Rev. 419, 432-433 (1978).

The Florida Evidence Code has not changed the law in this respect. Section 90.404(l)(b)(l) provides:

(1) Character evidence generally. — Evidence of a person’s character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion, except:
* * * * * *
(b) Character of the victim.—
(1) Except as provided in s. 794.022, evidence of pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; ....

We therefore conclude that evidence relating to the victim’s reputation as to unchaste conduct should have been admitted, and its exclusion constitutes reversible error.

Section 794.022 does, however, bar evidence of specific sexual acts unless that evidence establishes a pattern of conduct relevant to the issue of consent. Hodges v. State, 386 So.2d 888 (Fla. 1st DCA 1980). There, we held that one isolated act of premarital sex did not constitute a “pattern of conduct” within the meaning of Section 794.022(2). Although the proffered testimony in this case does reveal three specific instances of sexual activity, that evidence is not so repetitive or frequent as to establish a “pattern of behavior.” Accordingly, we agree that the lower court did not err in refusing to admit such testimony into evidence.

As to Point II, the appellant argues that the trial court erred in allowing the state, over the defense counsel’s objection, to introduce prior consistent statements of co-defendant Watt because there was no indication of improper influence, motive, or recent fabrication in Watt’s testimony during his cross-examination. We disagree. Although the general rule is that the witness’s testimony cannot be corroborated by a prior consistent statement, McRae v. State, 383 So.2d 289, 292 (Fla. 2d DCA 1980), the Florida Evidence Code, following the common law, has recognized exceptions to this rule. The exception pertinent to this issue is provided in Section 90.801(2)(b), Florida Statutes, stating:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing in a subject to cross-examination concerning the statement and the statement is:
******
(b) Consistent with his testimony and is offered to rebut an expressed or implied charge against him of improper influence, motive, or recent fabrication

The exception involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made “prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.” Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974) (e. s.). Here, the record establishes that defense counsel emphasized that Watt was not sentenced until just before the trial held in February. 1981, thereby suggesting that Watt had an unfair bias and that sentencing was being held off to assure his favorable testimony for the state. The pretrial statements were made, however, prior to his sentencing in August of 1980, and were entirely consistent with his trial testimony, and so fall within the exception to the general rule.

Although this case must be retried, we consider it appropriate, should appellant be once again convicted for the offenses of burglary and sexual battery, to address his third point which contends, relying upon McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980) and Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981), rev. granted, nos. 60,782 & 60,792 (Fla. orally argued April 13, 1982), that he could not be sentenced for both burglary with assault and sexual battery since the latter sentence is duplicative as a matter of law. We disagree. Both McRae and Faison cited State v. Pinder, 375 So.2d 836 (Fla.1979), for the position that separate convictions for burglary with assault and sexual battery could not be imposed on the ground that double jeopardy considerations preclude multiple convictions and punishments at the same trial for both the primary and underlying felonies. State v. Hegstrom, 401 So.2d 1343 (Fla.1981), receded from Pinder to the extent that the latter proscribed the imposition of multiple convictions and, reiterating the test supplied by Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), further observed that double jeopardy presents no bar to multiple convictions and punishments if one offense requires proof of an element that the other does not. Id. at 1345. The court, however, concluded that Section 775.021(4), Florida Statutes (1977), forbade separate sentences for both the primary and underlying felonies arising from a single criminal transaction.

It clearly appears from the above that there is no constitutional inhibition to the state’s imposition of separate convictions for the offenses of burglary with assault and sexual battery by using physical force not likely to cause serious personal injury. The only remaining question is whether sexual battery is a lesser included offense to burglary with assault, and, as such, one whose punishment may not be imposed due to the proscriptive language of Section 775.021(4). We conclude that sexual battery is not, under the circumstances of this case, an underlying felony or a lesser included offense to burglary with assault. It cannot be considered a necessarily included offense to that of burglary with assault because assault does not necessarily include as an element to its commission a battery. Thus, the two offenses contain mutually exclusive elements. See 6 Am.Jur.2d Assault and Battery, § 7 (1963).

Nor can it be considered an offense that may be included, depending on the allegations in the accusatory instrument and the proof presented at trial. In regard to the latter category of lesser offenses, Brown v. State, 206 So.2d 377, 383 (Fla.1968), explains that “the trial judge must [first] examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged.” The trial judge in the instant case appropriately followed Brown’s directions. Count I of the information charges that McElveen unlawfully entered the dwelling of the victim “with intent to commit ... a sexual battery and during the commission of the burglary made an assault” on her.

Although the allegations charge that defendant entered the dwelling with intent to commit a sexual battery, they do not state that he assaulted the victim by committing a sexual battery. This is a crucial distinction, since an assault can be carried out in many ways other than by a sexual battery. Brown offers the following example to clarify this type of category: If a defendant were charged simply with assault with intent to commit robbery, the allegations of the primary offense would not reveal aggravated assault to be a lesser included offense to the greater. Id. at 383. However, if the defendant were charged with assault with a deadly weapon with intent to commit robbery, then aggravated assault would be appropriately included — provided proof were established that a deadly weapon was in fact used. Id.

Our conclusion that sexual battery is not a lesser offense to burglary with assault is further bolstered by reference to the recently approved Schedule of Lesser Included Offenses in Florida Standard Jury Instructions in Criminal Cases (1981). The schedule does not list sexual battery in any category as a lesser included offense to burglary. The stated purpose of the schedule’s adoption by the Supreme Court was to provide “as complete a listing as possible for each criminal offense of the possible category 3 and category 4 lesser included offenses [those lesser offenses that were categorized by Brown as necessarily or permissively lesser included offenses, respectively], which we direct to be renumbered category 1 and category 2.” In re: Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and Standard Jury Instructions in Misdemeanor Cases, 6 FLW 305, 306-307 (Fla., April 16, 1981) (Nos. 56,734 and 58,799). The court later referred to the schedule as an attempt to guide “the trial courts with greater clarity and certainty than the ‘category four’ concept of Brown.” Borges v. State, 415 So.2d 1265 (Fla., 1982) (7 FLW 172, 173). Thus, for the reasons stated, there would appear to be no bar to the separate imposition of both convictions and punishments for the offenses of burglary with assault and sexual battery.

Affirmed in part, reversed in part, and remanded for new trial.

BOOTH and THOMPSON, JJ., concur.

      . In Borges, the court held that neither the crimes of possession of burglary tools nor of carrying a concealed firearm were lesser offenses of burglary or of possession of a firearm by a convicted felon, respectively.


author: SHIVERS, Judge.

text:
    BOOKER CREEK PRESERVATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AF-80.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    Thomas W. Reese, St. Petersburg, for appellant.
    Paul R. Ezatoff, Jr., Asst. Gen. Counsel, Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant seeks review of hearing officer’s order dismissing petition challenging Department of Environmental Regulation policy of dismissing exceptions to a hearing officer’s proposed findings of fact unless the appealing party submits a complete written transcript of the hearing at the expense of the appealing party. Appellant contends this mandatory policy of DER is an invalid exercise of delegated legislative authority since it has not been formally adopted as a rule pursuant to Section 120.-54, Fla.Stat. (1979).

The parties stipulated that DER routinely rejects a party’s exceptions to a hearing officer’s recommended order filed pursuant to Section 120.57(lXb), 4 unless the party seeking the establishment of the exception supplies a complete record including a transcript.

Under Section 120.57(l)(b)9, DER is required to review the complete record of an administrative proceeding before modifying or rejecting the findings of fact of a recommended order.

Section 120.57(l)(b)5i specifies that the “official transcript” is a part of the complete record of Section 120.57(1) proceedings.

Section 120.57(l)(b)6 provides:

The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost.

We have already held that, for purposes of appellate review, this subsection requires the appealing party to furnish the court with a transcript. Mick v. Florida State Board of Dentistry, 338 So.2d 1297 (Fla. 1st DCA 1976); see also Harrell v. State Dept. of Health, etc., 361 So.2d 715 (Fla. 4th DCA 1978).

Further, Section 28 — 5.306, Florida Administrative Code, places the burden of securing a transcript on the party who wishes the transcript, at that party’s expense.

We now hold that the burden of furnishing a transcript is on the party seeking review at the agency level, and conclude it is not necessary to formally adopt the exceptions/transcript requirement as a rule. Accordingly, the hearing officer’s order dismissing the petition is AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


author: JORGENSON, Judge.

text:
    CONTINENTAL CENTER, INC., Appellant, v. WALTER E. HELLER & COMPANY OF FLORIDA, a Florida corporation, n/k/a Walter E. Heller & Company Southeast, Appellee.
    No. 81-427.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 16, 1982.

      Berger & Zukoff and Paul S. Berger, Miami, for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz and J. Robert Olian, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   JORGENSON, Judge.

Paint Fair Stores, Inc., entered into financing arrangements with Walter E. Heller and Company, plaintiff below, appellee here, which covered the inventory and fixtures of Paint Fair Stores, Inc. The collateral promissory note to Walter E. Heller and Company created a security interest in the inventory within the meaning of Section 679.102, Florida Statutes (1979).

In 1974, Heller and Company sought additional protection on the collateral promissory note and received from Donald Zucker-man, the then president of Paint Fair Stores, Inc., a collateral real estate mortgage which, by its terms, created an open-ended indebtedness in an amount not to exceed $150,000, and incorporated the collateral promissory note. In September, 1977, Donald Zuckerman executed a warranty deed to Continental Center, Inc., defendant below, appellant here. Subsequently, Paint Fair Stores, Inc. filed under Chapter 11 of the Federal Bankruptcy Act and was ultimately adjudicated a bankrupt on December 5,1977. During the course of the bankruptcy proceedings, the secured creditor, Heller and Company, received the inventory of Paint Fair Stores, Inc. by way of an abandonment from the trustee. Heller and Company sold the assets and then brought a foreclosure proceeding against Continental Center alleging a deficiency on the collateral note and mortgage.

Continental Center defended by suggesting that it was a debtor entitled to notice within the meaning of Section 679.501(3)(b), Florida Statutes (1979). As a further defense, Continental Center maintains that the sale of the secured collateral was commercially unreasonable within the meaning of Section 679.504(3), Florida Statutes (1979).

The trial court found the note to be in default and granted the foreclosure. A deficiency in the amount of $87,654.09 was also found. In reaching its conclusion, the trial court found, as a matter of fact, that Continental Center is a successor in interest to the mortgagor, Zuckerman being the pri- or fee simple owner of the real property. We affirm in part and reverse in part.

Turning first to the notice issue, appellant’s reliance on Section 679.501(3)(b), Florida Statutes (1979) and Section 679.-504(3), Florida Statutes (1979) is simply misplaced. These provisions of the Uniform Commercial Code deal with the sale of personalty as collateral and do not effect Heller and Company’s rights as mortgagee. The sale of mortgaged property is a transaction wholly between the mortgagor and his vendee, solely for their advantage; the mortgagee has no voice in its making and is powerless to prevent it. Slottow v. Hull Investment Company, 100 Fla. 244, 129 So. 577 (1930). There can be no change in the relationship between the mortgagor and mortgagee which can effect the mortgagee’s rights without the assent of the latter, expressed or implied. A mortgagee need not recognize the vendee unless he so elects. He need surrender no rights against the mortgagor unless he so elects. Slottow, supra. Indeed, Section 679.102(3), Florida Statutes (1979) specifically excludes real property from the provisions of the Code. Thus, all that Continental Center received by way of the conveyance was bare, legal title to the property in question, subject to the mortgage. 59 C.J.S. Mortgages § 389.

Continental is entitled, however, as a successor in interest, to litigate the commercial reasonableness of the sale of the secured collateral, particularly. where, as in this case, both mortgage and note were open-ended. Section 679.504(2), Florida Statutes (1979). The record reflects that, in order to effect the sale of the collateral, Heller and Company employed the services of Robert I. Glazer to conduct a retail liquidation sale. After making a preliminary analysis and conducting certain advertising, the retail sale commenced on March 2, 1978. By April 4, 1978, the sale had generated $95,562.82 in gross receipts. Up to that point in time the expenses of the sale were $69,639.98. According to the trial testimony of Heller’s representative, had the sale continued for another week, additional revenues would have been received and, had it concluded at that point, the loan would have been reduced by approximately $33,806.38.

The sale, however, did not conclude, but continued for another month, which resulted in the cost of sale exceeding the value of the collateral asset. We cannot agree that this was commercially reasonable after Heller had notice from its own expert on April 3, 1978 that it had reached a point of no return. At that point, the sale of the collateral became commercially unreasonable. Bank of Oklahoma v. Little Judy Industries, Inc., 387 So.2d 1002 (Fla. 3d DCA 1980).

The judgment in amount of $87,654.09 is, accordingly, modified and reduced by $33,-806.09 to reflect a net deficiency of $53,-848.00. This cause is remanded to the trial court for further proceedings in accordance with the views expressed herein.

      . Not a party to this appeal or the proceedings below.

      . The record does not reflect whether or not Heller and Company was advised of the sale.

      . The briefs and the record are in minor conflict on the exact amounts. We adopt the amounts reflected in Heller’s trial brief found at p. 109 of the record.


text:
    Peter HARGITAY, Appellant, v. Dr. Ralph L. PIPES, Appellee.
    No. 81-1463.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 14, 1982.
    Dubbins, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellant.
    Charles W. Battisti and A. N. Spence, Coral Gables, for appellee.
    Before HUBBART, C. J., DANIEL S. PEARSON, J. and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Quiring v. Plackard, 412 So.2d 415 (Fla. 3d DCA 1982). Appellee’s motions for attorney’s fees on appeal is granted in the amount of $1,000. See Florida Glass & Mirror Co. v. Economy King Equipment Co., 353 So.2d 596 (Fla. 4th DCA 1977); § 59.46, Fla.Stat. (1981).


author: BASKIN, Judge.

text:
    Edward BURKE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1562.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 15, 1982.

      Bennett H. Brummer, Public Defender and Gerald D. Hubbart, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Finding no error in defendant’s convictions for robbery and for unlawful possession of a firearm while engaged in a criminal offense, we affirm the convictions but reverse the sentence imposed for unlawful possession of a firearm while engaged in a criminal offense. Multiple sentences for lesser included offenses are precluded by State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981); section 775.021(4), Florida Statutes (1979).

Consistent with our certification in Marshall v. State, 413 So.2d 872 (Fla. 3d DCA 1982) (on rehearing), we certify to the Supreme Court of Florida, as a matter of great public importance, the question of whether trial courts are empowered to impose separate punishments for the statutory offenses relating to the use of a firearm during the commission of a felony and the commission of that same felony by the use of a firearm.

Affirmed in part, reversed in part, and remanded with directions to vacate the sentence for unlawful possession of a firearm.

      . The information alleged that in the course of committing the robbery, defendant Burke carried a pistol.


text:
    James R. WILSON, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 81-1651.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 12, 1982.

      Stabinski & Funt, Scherman & Zelonker and Regina Zelonker, Miami, for appellant.
    Papy, Poole, Weissenborn & Papy and Sheridan Weissenborn, Coral Gables, for ap-pellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Where policy was issued in Kentucky to resident of that state, construction and legal effect of terms of the policy, and rights and obligations of persons insured thereunder, is determined by the laws of Kentucky. H. S. Equities, Inc. v. Hartford Accident & Indemnity, 334 So.2d 573 (Fla.1976); Allstate Insurance Co. v. Langston, 358 So.2d 1387 (Fla. 3d DCA 1978).

Affirmed.


text:
    F. V. INVESTMENTS, N. V., a Netherlands Antilles Corp., and Riverpoint, Inc., a Florida corporation, Appellants, v. SICMA CORP., a Florida corporation, Appellee.
    No. 81-2421.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 15, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellants.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN, (Ret.), Associate Judge.
   PER CURIAM.

The preliminary injunction issued pursuant to Florida Rule of Civil Procedure 1.610(a) is reversed on two grounds. First, the acts enjoined by the injunction are not specified with such reasonable definiteness and certainty that the defendants bound by the decree would know what they must refrain from doing without the matter being left to speculation and conjecture. See Moore v. City Dry Cleaners & Laundry, Inc., 41 So.2d 865, 871 (Fla.1949). Secondly, the complaint for injunctive relief fails to set forth clearly, definitely, and unequivocally sufficient allegations to warrant the intervention of a court of equity. Cramp v. Board of Public Instruction of Orange County, 118 So.2d 541 (Fla.1960); Stanton v. Harris, 152 Fla. 736, 13 So.2d 17 (Fla.1943).

Reversed.


text:
    The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, an agency and instrumentality of Dade County, Florida, which operates Jackson Memorial Hospital, Appellant, v. M.R. HARRISON CONSTRUCTION CORPORATION, a Florida corporation, and Seaboard Surety Company, a New York corporation, Appellees.
    No. 82-679.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied July 15, 1982.
    Robert A. Ginsburg, County Atty., and Robert L. Blake, Asst. County Atty., for appellant.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Andrew T. Lavin, Hollywood, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Stuart J. McGregor, Miami, Berman, Paley, Goldstein & Berman and Roger S. Markowitz, New York City, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The Public Health Trust of Dade County, Florida (the County), appeals from an order denying its motion to stay pending arbitration proceedings, compelling the continuation of arbitration, and dismissing the County’s complaint for damages. We affirm.

Neither the validity of the contract between the parties nor its provision for arbitration is challenged. See Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA 1982). The County’s contention is simply that Harrison did not, as required by the contract, demand arbitration “within a reasonable time after the claim, dispute or other matter in question has arisen,” and thus was disentitled to enforce its right to arbitrate. Harrison’s response below and here is that the question of whether its demand for arbitration was untimely is to be decided in arbitration, not by a court. We agree.

In County of Rockland v. Primiano Construction Co., Inc., 51 N.Y.2d 1, 431 N.Y. S.2d 478, 409 N.E.2d 951 (1980), the New York Court of Appeals addressed the identical issue arising from an identical arbitration clause. It said:

“Sharply to be distinguished from conditions precedent to arbitration are procedural stipulations that the parties may have laid down to be observed in the conduct of the arbitration proceeding itself — conditions in arbitration, e.g., limitations of time within which the demand for arbitration must be made, or requirements as to parties on whom or as to the manner in which service of the demand for arbitration shall be made. As would be expected, questions as to whether there has been compliance with such procedural regulations and, if not, what the consequences shall be, are for resolution by the arbitrator as incidental to the conduct of the arbitration proceeding (citations omitted).
“It is recognized that both conditions precedent to access to the arbitral forum (falling within the judicial ambit) and procedural regulations or conditions in the arbitration proceedings (falling to the arbitrator) may be verbally referred to indiscriminately as ‘conditions precedent’ to arbitration.... Under the second heading will come provisions relating to the conduct of the arbitration proceeding itself, i.e., requirements or conditions in arbitration, e.g., that the demand be made within a specified time, or be served in a specified manner or on specified persons. Beyond that it is to be remembered that inasmuch as the entire arbitration process is a creature of contract, the parties by explicit provision of their agreement have the ability to place any particular requirement in one category or the other, to make it a condition precedent to arbitration or to make it a condition in arbitration. ... ” 51 N.Y.2d at 8-9, 431 N.Y.S.2d at 482, 409 N.E.2d at 954-55 (emphasis in original) (footnote omitted).

and concluded:

“It remains then to address the other contention advanced by the county, namely, that, ... subparagraph 7.10.2 prescribes that ‘the demand for arbitration shall be made * * * within a reasonable time after the claim * * * has arisen’ and that the demand by Primiano in this instance was untimely within the meaning of that provision. This provision, however ... is not a condition precedent to arbitration but only a procedural stipulation with respect to the conduct of the arbitration proceeding. Accordingly, it will be for the arbitrator to resolve the contention of the county with respect to the untimeliness of this demand.” 51 N.Y.2d at 11-12, 431 N.Y.S.2d at 484, 409 N.E.2d at 956.

We are persuaded that the result in Pri-miano is correct and, moreover, consistent with the strong public policy favoring arbitration, which we so recently reaffirmed in Post Tensioned Engineering Corp. v. Fairways Plaza Associates, supra.

The County argues that delay in demanding arbitration is the equivalent of a waiver of arbitration, and as waiver is an issue cognizable by the court, so too should be the issue of delay. In our view, however, the non-action of delay does not contain the ingredient common to waiver cases, see, e.g., Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981), and cases collected therein, that is, that the party said to have waived has, in some manner, affirmatively manifested an acceptance of the judicial forum. Delay in demanding arbitration, unaccompanied by action in a court, is not a repudiation of the right to arbitrate so as to make the issue of delay one for a court to decide.

Finally, we consider the County’s argument that were we to hold that the issue of unreasonable delay is an issue to be addressed in arbitration, we would be required to recede from well-entrenched Florida law (and, indeed, this court’s own cases) holding to the contrary. We think not. We fully recognize that in Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979), we affirmed the denial of an untimely motion to compel arbitration; that in Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA 1970), upon which we relied in Lyons, the First District did the same; and that in Frank J. Rooney, Inc. v. Food Fair Industries, Inc., 254 So.2d 30 (Fla. 3d DCA 1971), we affirmed an order compelling arbitration which was timely sought. But none of these cases addressed or decided the apparently unraised question which is now, for the first time, squarely before us — that is, in respect to an agreement such as that involved in the present case, is it for the arbitrator or the court to determine when a demand for arbitration is untimely? We hold that the question is one for the arbitrator. Our emergency stay of the trial court’s order is hereby vacated.

Affirmed.

      . We dispose of the parties’ preliminary skirmish over our jurisdiction. The dismissal of Public Health Trust’s complaint is a final appealable order, Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980), and, having jurisdiction, we may undertake appellate review of other aspects of the dismissal order. Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981). Compare Harris v. State Farm Mutual Automobile Insurance Co., 283 So.2d 147 (Fla. 2d DCA 1973) (order granting motion to compel arbitration, without dismissal of complaint, did not finally terminate litigation and was not appealable, although reviewable by certiorari); North Broward Hospital District of Broward County v. William Passalacqua Builders, Inc., 312 So.2d 206 (Fla. 4th DCA 1975) (order staying, but not dismissing, court action and compelling arbitration not appealable). Compare further Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980) (orders denying motion to compel arbitration, definitively non-final, reviewable by certiorari).

      . The pertinent clause of the parties’ agreement provides in full:
      “7.10.2 Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Subparagraphs 2.2.10 and 2.2.11 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.”

      . We note parenthetically that prior to filing its Circuit Court action, the County unsuccessfully moved in the arbitration proceeding for dismissal on account of this delay.

      . A court quite clearly has jurisdiction to decide the delay issue where a party does not insist upon his right to have it decided in arbitration. Indeed, it might have been argued that the parties seeking arbitration in Lyons, Bicker-staff and Rooney, by failing to assert that the delay issue could only be decided in arbitration and not by the court, repudiated their rights under the arbitration agreement.


author: DAUKSCH, Chief Judge.

text:
    CITY OF MELBOURNE and American Druggists Insurance Company, Petitioners, v. Marie Ann FLOYD, as Personal Representative of the Estate of Robert Windell Floyd; Monica Hogan and State Farm Mutual Automobile Insurance Company, Respondents.
    No. 82-360.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    Rehearing Denied June 17, 1982.

      Janet R. DeLaura, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for petitioners.
    Sammy Cacciatore, of Nance, Cacciatore & Sisserson, Melbourne, for respondent Floyd.
    Thomas G. Kane, of Driscoll, Langston & Kane, P.A., Orlando, for respondents Hogan and State Farm Mut. Auto. Ins. Co.
   ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Chief Judge.

The petition for writ of certiorari seeking relief from an interlocutory order is dismissed on the ground that it was untimely filed. The trial court rendered an order overruling the petitioners’ objections to the respondents’ requests to produce the internal investigation report of the Melbourne Police Department containing the statement of a police officer involved in the accident, and thus requiring the petitioners to produce said document. The court’s order was interlocutory. The petitioners filed a motion for rehearing of the order in the lower court. The filing and pendency of such a motion does not toll the time for filing a petition for common law certiorari under Rule 9.100(c), Florida Rules of Appellate Procedure. Such a motion does not fall within Rule 9.020(g), Florida Rules of Appellate Procedure and does not toll the rendition date of the original order. Hofer v. Gil de Rubio, 409 So.2d 527 (Fla. 5th DCA 1982); Alimenta (U.S.A.), Inc. v. Pender Peanut Co., 389 So.2d 7 (Fla. 1st DCA 1980); Gordon v. Barley, 383 So.2d 322 (Fla. 5th DCA 1980).

The Petition for Writ of Certiorari is DISMISSED.

COBB and COWART, JJ., concur.


author: RYDER, Judge.

text:
    Edmund SEMPF, Appellant, v. Robert E. RUHLMAN, and Flagship Bank of St. Petersburg, N. A., and Helmut Sempf, Appellees.
    No. 81-1412.
    District Court of Appeal of Florida, Second District.
    May 19, 1982.
    Rehearing Denied June 22, 1982.

      William C. Ballard, Fisher & Sauls, P. A., St. Petersburg, for appellant.
    Martin Errol Rice, Skelton, Willis & Rice, St. Petersburg, for appellee Ruhlman.
    Aubrey O. Dicus, Jr., Battaglia, Ross, Hastings, Dicus & Campbell, St. Peters-burg, for appellee Flagship Bank.
   RYDER, Judge.

Edmund Sempf appeals the final judgment denying his claims for foreclosure of a mortgage and cancellation of a satisfaction of mortgage. We reverse.

The undisputed findings of the court below include the following facts. Edmund Sempf sold real estate to his son, Helmut Sempf, in 1973 taking back a note and mortgage which is the subject of this action. Payments were due on a monthly basis, but no payments were made. Edmund Sempf began making demand on Hel-mut for payment within three months after the obligation accrued.

On March 7, 1977, Robert E. Ruhlman purchased the subject property from Hel-mut Sempf. Ruhlman requested and understood that he was getting free and clear title subject to a new mortgage to Flagship Bank of St. Petersburg. At that time, there was in the records of the clerk of the circuit court a satisfaction of mortgage in favor of Edmund Sempf from his son, Hel-mut, which was forged. Ruhlman had no knowledge of impropriety in the chain of title and no knowledge of a forged satisfaction of mortgage.

Several months prior to the purchase, Sempf had actual knowledge that his son might attempt to forge a satisfaction of mortgage, and knew of a prior forgery of his signature and misappropriation of his funds by Helmut. In response to that fear, Sempf had continuing correspondence with an attorney in St. Petersburg with respect to his concerns about the mortgage. Sempf knew there was a proposed sale to Robert Ruhlman, and was aware of the name of the closing agent. Sempf corresponded with the Pinellas County Clerk of Court concerning the potential forgery and received a letter back advising that the forged satisfaction could be invalidated with appropriate legal action. During all times relevant, Sempf was incarcerated in Canada.

Based on the above factual findings, the lower court additionally found that appellant failed to protect his interest or the interest of the purchasers by advising the purchasers of potential irregularities. This finding that Edmund Sempf was negligent and thereby contributed to the loss, coupled with the lower court’s findings that Sempf owed a duty to advise the proper persons of his concerns for possible fraudulent satisfaction of the mortgage, resulted in the lower court’s denying cancellation of the mortgage and foreclosure. The court also found Sempf guilty of laches by failing to take action to establish his rights until Ruhlman filed an action to quiet title below.

We are unable to discern a duty owed by appellant to a purchaser to advise that a fraudulent document might appear. It is true that equitable principles may be applied to effect the remedy of cancellation of a mortgage satisfaction. United Service Corp. v. Vi-An Construction Corp., 11 So.2d 800 (Fla.1955). In order to effect cancellation under those equitable principles, the mortgagee must be free of negligence in order to prevail. Id. We see no such negligence by appellant to defeat the cancellation. While incarcerated in Canada, appellant retained local counsel to protect his mortgage interest in the property. Appellant actively corresponded with local counsel for various parties, and even the circuit court clerk in attempts to preserve the mortgage. After learning that a sale had taken place, appellant wrote the indicated title agency and counsel in attempts to determine where the proceeds from the sale went. This correspondence continued through June 1977, after appellant learned of the March sale. We are not able to determine from this record when appellant learned that a forged satisfaction was filed, but counsel for appellant made demand on appellee Ruhlman for payment in September of 1977.

Thus, the record indicates no more than a three-month delay before appellant’s demand noticed appellee that something was amiss. We hold that there is no competent evidence in the record to support a finding of laches, or of a breach of duty.

The final judgment below is REVERSED and the case REMANDED for further proceedings.

SCHEB, C. J., and SCHOONOVER, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Albert H. BRAMSON, Grace Giunta, Margaret E. Lawrence, and Florence Concannon, Appellants, v. BEAU MONDE, INC., a Florida corporation, not for profit, B. F. Aldridge, Jr., William A. Williams, Max Koenigsberg, Alex Rein, Betty Myers, Robert Stubenfall, Sonia J. Geiger, individually and as the directors of Beau Monde, Inc., a condominium association, U. S. Home, Inc., a corporation, Port Builders, Inc., a Florida corporation, and Bay Management, Inc., a Florida corporation, Appellees.
    No. 81-1589.
    District Court of Appeal of Florida, Second District.
    May 19, 1982.
    Rehearing Denied June 25, 1982.

      Daniel B. Schuh, St. Petersburg, for appellants.
    Peter T. Roman of Dunbar, Dunbar, Roman & Anderson, Dunedin, and William S. Jonassen, Indian Rocks Beach, for appel-lees.
   BOARDMAN, Acting Chief Judge.

Plaintiff/defendant Albert H. Bramson and plaintiffs Grace Giunta, Margaret E. Lawrence, and Florence Concannon appeal a final summary judgment against them in their consolidated cases against appel-lee/defendant/plaintiff Beau Monde, Inc. and appellees/defendants U. S. Home, Inc., Port Builders, Inc., Bay Management, Inc., and the directors of Beau Monde. We reverse.

Beau Monde, a condominium association, filed a complaint for foreclosure against Bramson and his wife (now deceased) for failure to pay the maintenance fees on their condominium unit. A default judgment was subsequently entered against the Bramsons, but it was vacated on the Bram-sons’ motion therefor. This court affirmed Beau Monde’s appeal. Beau Monde, Inc. v. Bramson, 392 So.2d 75 (Fla. 2d DCA 1980).

Meanwhile, appellants, who are all Beau Monde condominium unit owners, filed a declaratory judgment action against appel-lees seeking to have Beau Monde’s purchase of the common elements from Bay Management or U. S. Home declared ultra vires and to have the lien against Bramson’s condominium removed. The two cases were ultimately consolidated.

Thereafter, appellees moved for summary judgment, which was granted. Final judgment was then entered against appellants. This appeal followed timely.

Appellants purchased their separate condominium units at Beau Monde between November 1972 and 1978 inclusive. In purchasing their units, appellants became subject to and possessed of all rights, encumbrances, and liabilities of the declaration of condominium ownership of Beau Monde, the articles of incorporation of Beau Monde, the bylaws of Beau Monde, the maintenance agreement, and a 99-year recreational and garage lease. Each of appellants, upon purchase of his/her condominium unit, was required to sign a pledge agreement to secure his/her obligation as a unit owner under the recreational and garage lease. Both the maintenance agreement and the garage and recreational lease agreement had fixed payments with minor increases on a systematic basis until 1997.

The developer of the condominium complex was U. S. Home. The maintenance contractor is Bay Management, a subsidiary of U. S. Home. The builder was another U. S. Home subsidiary, Port Builders.

Beau Monde was managed by a unit owner board of directors under the aforementioned condominium documents through 1978. Sometime in 1979, negotiations were undertaken by the board of directors of Beau Monde for the purchase of the garage and recreational areas which were leased under the recreational and garage lease. On June 11, 1979, the Beau Monde unit owners were sent a letter from Peter Dunbar, attorney for the board of directors, setting forth the terms of the purchase of the recreational and garage lease property and the termination of the management and maintenance agreements with Bay Management. This letter stated that the directors were not going to call a meeting of the individual condominium unit owners, but were requesting approval by written consent under the provisions of Article V, Section 8 of the bylaws in lieu of a special meeting.

Article V, Section 8 provides:

Waiver and Consent: Whenever the vote of members at a meeting is required or permitted by any provisions of the Statutes or the Certificate of Incorporation or of these By-Laws to be taken in connection with any action of the corporation, the meeting and vote of members may be dispensed with if all of the members who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such action being taken.

Appellants did not consent to such action. No special meeting was called to obtain the consent of the individual unit owners.

The board of directors purchased the garage and recreational lease areas from Port Builders in June 1979. Appellants paid their share of the initial purchase price of the recreational and garage lease areas under protest.

The trial court found that inasmuch as the unit owners did not have veto power over the board of directors’ termination of the maintenance agreement or acquisition of the property covered by the recreational and garage lease, the board did not act ultra vires. Due to the express wording of Article V, Section 8 of the declaration of condominium, we cannot agree.

The board sought waiver of a special meeting under this section. While it is unclear whether a meeting was required, a meeting was not precluded, and was therefore permitted, under the bylaws and applicable statutes. Waiver of such a meeting requires the consent of all of the record condominium unit owners to the proposed action. Appellants, all of whom are unit owners, did not consent to the action taken. While less than unanimous consent would have been required under the declaration had a special meeting been held, failure to hold a meeting required strict compliance with the requirements of Article V, Section 8. Those requirements were clearly and indisputably not met here. While the association had the power and authority under the declaration of condominium, articles of incorporation, bylaws of the corporation, and the applicable statutes to purchase the recreational and garage lease and terminate the maintenance agreement, the association did not comply with the declaration of condominium. Failure to meet the requirements of Article V, Section 8 renders the board’s termination of the maintenance agreement and acquisition of the property covered by the recreational and garage lease ultra vires and therefore void. See Randall v. Mickle, 103 Fla. 1229, 138 So. 14 (1931).

Accordingly, the final summary judgment in favor of appellees is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

RYDER and CAMPBELL, JJ., concur.

      . Both of these properties were neither included in the condominium property submitted to condominium ownership nor in the purpose clause of the articles of incorporation of condominium association.


author: MILLS, Judge.

text:
    Guy E. CLEVELAND, individually, and d/b/a Royal Scotsman Inn, Consortium Construction Company, Consortium Management Company and/or Swanee Motel Associates, Appellants, v. Alton Darrell EVERSON, Lodgings, Inc. and its insuror, Lumberman’s Mutual Casualty Company, Inc., and American States Insurance Company, Appellees.
    No. TT-293.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Rehearing Denied July 9, 1982.

      Joseph M. Mason, Jr. of Shackleford, Far-rior, Stallings & Evans, P. A., Tampa, for appellants.
    O. Robert Wallace, III, of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, for appellee Everson.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellees Lodgings and Lumberman’s.
    John H. Thompson, IV, of Earle & Thompson, St. Petersburg, for appellee American States.
   MILLS, Judge.

Appellants appeal from a workers’ compensation order denying their petition to vacate or modify earlier orders. We affirm.

We will consolidate the thirteen issues raised by appellants in their ninety-three page brief and restate them for brevity’s sake.

1. Did the deputy commissioner have authority to hold the hearing? Yes.

Although the deputy was not appointed at the time of the hearing, he was appointed prior to entry of his order. He was a deputy within the district where the claim arose and merely replaced the other deputy who recused himself. Additionally, appellants have not claimed or shown prejudice.

2. Should the deputy have granted a continuance? No.

The hearing was scheduled without objection. No abuse of discretion has been shown.

3. Should the deputy have cancelled the second hearing? Yes.

The deputy did not abuse his discretion in cancelling the second hearing because he correctly concluded that as a matter of law it was unnecessary.

4. Did the judge of industrial claims have jurisdiction over appellants in the previous hearings? Yes.

The filing of the amended claim with the deputy, rather than the Division, is sufficient. Section 440.19(1), Florida Statutes (1977). Additionally, appellants had actual notice of the hearings from a judge of industrial claims and decided not to participate.

5. Are any of the prior orders final? Yes, all.

The prior orders are final. The failure of the JIC’s secretary to date the certificates of service does not affect the finality of the orders. No assertion is made that the orders were not promptly mailed or received.

6. What post-order relief is available? None here.

Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact. The petition must be supported with new evidence. It is not available to relitigate previously decided questions. Cumulative evidence or evidence available at the original proceeding cannot support a petition to modify, University Inns v. Davis, 413 So.2d 128 (Fla. 1st DCA) 1982; McKenney v. School Board of Palm Beach, 408 So.2d 655 (Fla. 1st DCA 1981). Appellants offer no new evidence except on the coverage issue and that was available to them at the December 1978 hearing. Appellants should not be allowed to use a petition for modification to avoid all consequences of not appearing. They had their chance.

7. What is the status of the 15 February 1979 order setting attorney’s fees? Final.

The order of 15 February 1979 is obviously final. No guidance is required.

8. Were the prior orders supported by competent substantial evidence? Moot.

The orders of 18 January and 15 February 1979 were not appealed and are now final.

9.Has due process been violated? No.

Appellants were not denied due process. They were properly and promptly notified and given the opportunity to participate in all proceedings or take appropriate action. When appellants failed to take action, it was because they opted to take no action.

The order appealed is affirmed.

LARRY G. SMITH and SHAW, JJ., concur.


author: WENTWORTH, Judge.

text:
    BERGEN BRUNSWIG CORPORATION and Health Application Systems, Inc., Appellants, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    Nos. AB-412, XX-386.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Rehearing Denied July 15, 1982.

      F. Perry Odom, C. Everett Boyd, and Mary Lee Sweet, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    M. Stephen Turner, of Culpepper, Beatty & Turner, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellants seek review of an order by which they were adjudged liable for the misappropriation and misuse of funds derived pursuant to a contractual arrangement involving various entities including appellants and appellee; appellee cross-appeals. We conclude that the lower court’s denial of prejudgment interest was error, and we otherwise affirm the order appealed.

Appellee is a body corporate and statutorily possessed of the power “to sue and be sued in actions ex contractu but not in torts .. . . ” § 402.34, Florida Statutes. Appellants argue, among various other contentions, that this statutory limitation deprives the circuit court of subject matter jurisdiction as to tort actions brought by appellee; appellants further argue that the present case is primarily a tort action. However, the circuit court is generally possessed of subject matter jurisdiction in tort actions, and, contrary to appellants’ contention, § 402.34 does not alter that jurisdiction, but rather delimits appellee’s capacity to sue by describing those instances in which the established jurisdiction of the court may be invoked. Cf., State ex rel. Jacksonville Gas Co. v. Lewis, 125 Fla. 816, 170 So. 306 (1936). Since appellants declined to raise a “lack of capacity” argument before the circuit court, this argument may not now be pursued on appeal. Cf., Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971).

Appellants also argue that the circumstances of the present case do not support appellee’s claim of conversion. Appel-lee established the misappropriation and misuse of funds which were provided for a specific purpose with an express direction that the funds be used for no other purpose. The wrongful use of such funds, contrary to appellee’s express instruction, constitutes conversion. See All Cargo Transport Inc. v. Florida East Coast Railway Co., 355 So.2d 178 (Fla. 3d DCA 1978).

On cross-appeal appellee contends that the lower court erred in denying the claim for prejudgment interest. Such interest may be awarded in conversion and ex contractu actions. See Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976), and Srybnik v. Ice Tower, Inc., 183 So.2d 224 (Fla. 3d DCA 1966). Although it has sometimes been indicated that prejudgment interest is appropriate only where damages are liquidated, in Florida the distinction between liquidated and unliquidated damages “has been substantially blurred.” See Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978). Accordingly, in Florida there has evolved a principle that prejudgment interest may be awarded when damages are a fixed sum or an amount readily ascertainable by simple calculation and not dependent on the resolution of conflicting evidence, inferences, and interpretations. See Alarm Systems of Florida, Inc. v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1980); Town of Longboat Key v. Carl E. Widell & Son, supra; also see Tampa Electric Co. v. Nashville Coal Co., 214 F.Supp. 647 (M.D.Tenn.1963). Indeed, this court has recited such, in dicta, as the applicable rule. See McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA 1979). However, we now determine that the better view is expressed in the case of Tech Corp. v. Permutit Co., 321 So.2d 562 (Fla. 4th DCA 1975), where the court held that, for the purpose of assessing prejudgment interest, a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date. Such a rule eliminates the unwarranted disparate treatment of those litigants who contest liability only, and those who contest the measure of damages.

In the present case the jury verdict established the amount of damages, and the record evidence indicates that, due to appel-lee’s dissatisfaction with appellants’ performance, the parties’ contractual relationship was terminated by formal notice prior to the commencement of the proceeding below. The jury verdict in this case thus had the effect of fixing damages as of a prior date, and therefore prejudgment interest should have been awarded.

The order appealed is reversed insofar as it denies the claim for prejudgment interest. The order is otherwise affirmed, and the cause is remanded for further proceedings consistent with this opinion.

MILLS, J., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur.

      . Appellee presented the case under multiple theories of recovery, and successfully obtained a general jury verdict despite appellants’ request for a special verdict. Accordingly, it is necessary on appeal that the verdict be without error on every theory of recovery. See Colonial Stores Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).

      . In accordance with the parties’ stipulation, the issue of prejudgment interest was submitted to the trial judge after the jury returned a verdict.


author: FERGUSON, Judge.

text:
    Bernard WILLAGE and Phyllis Willage, Appellants, v. The LAW OFFICES OF WALLACE AND BRESLOW, P.A., and Grover Moskowitz, Appellee.
    No. 81-884.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied July 16, 1982.

      Schwarz & Schiffrin and Norman K. Schwarz, Miami Beach, for appellants.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Legal malpractice by plaintiff’s attorney cannot be inferred from the fact that a jury returned verdict for defendant in slip and fall case. Without expert testimony, a lay jury could only speculate as to whether an attorney’s conscious decision not to call a purported witness constituted negligence, where in the attorney’s opinion, the witness on cross examination could have given testimony damaging to plaintiff’s case. See, e.g., Sims v. Helms, 345 So.2d 721 (Fla.1977) and Reynolds v. Burt, 359 So.2d 50 (Fla. 1st DCA 1978).

A party may not, after having given an affidavit in a cause, subsequently change his testimony in order to create an issue on his opponent’s motion for summary judgment. Ellison v. Anderson, 74 So.2d 680 (Fla.1954); Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977); Maryland Casualty Company v. Murphy, 342 So.2d 1051 (Fla. 3d DCA 1977); Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So.2d 526 (Fla. 2d DCA 1970). However, a party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, so long as the explanation is credible, even though it creates an issue on the opponent’s motion for summary judgment. Borders v. Liberty Apartment Corp., 407 So.2d 232 (Fla. 3d DCA 1981); Croft v. York, 244 So.2d 161 (Fla. 1st DCA 1971). We hold here, as a reasonable extension of the rule, that an affidavit of an expert witness filed by the party opposing a motion for summary judgment, which affidavit ostensibly creates an issue of fact, may be explained by a subsequent affidavit of the same witness so long as the explanation is credible, and not inconsistent with the previous sworn testimony, even though the effect of the explanatory testimony is to negate any issue of fact. Cf. Elison v. Goodman, 395 So.2d 1201 (Fla. 3d DCA 1981) (where there was no credible explanation by affidavit as to discrepancies between earlier testimony and later inconsistent testimony, later testimony stricken).

Summary judgment is AFFIRMED.

      .Affidavit of Grover M. Moskowitz states:
      1. I, GROVER M. MOSKOWITZ, have personal knowledge of the following after reviewing my file and refreshing my memory as to why Marina Stewart was not called to testify at MR. WILLAGE’S trial
      2. Marina Stewart, when interviewed by me on July 14, 1977, stated that MR. WILLAGE was in bad shape before his “accident” and walked “funny.”
      3. Marina Stewart said she did not witness the incident.
      4. Marina Stewart would testify that “Body Love” (MR. WILLAGE’S business) was cheap and had poor equipment.
      5. Marina Stewart would testify that no one at the mall was on notice of “wet spots” nor were there any complaints before the alleged incident.
      6. The eye witnesses to the incident which Marina Stewart recalled were either deposed or testified at trial.
      7. The incident report made by Marina Stewart was admitted into evidence at trial.
      8. The undersigned, based on the above, did not feel Marina Stewart would help MR. WILLAGE’S case in any material way.

      .The first affidavit stated:
      1. My name is JOHN BATMAN, and I practice law at 777 N.E. 79th Street, Miami, Florida.
      2. I am an attorney, duly licensed in the State of Florida and engaged in the present practice of law in Dade County, Florida.
      3. I worked as an attorney for the Law Offices of Wallace and Breslow, from April, 1975 to April, 1976.
      4. During my tenure with the aforementioned Law Offices, one of the cases I handled was Willage vs. Atlantic Investors of Miami, Ltd., Case Number 75-24234.
      5. During the course of preparation and investigation of this claim, I obtained information from a substantial number of witnesses in regard to liability and damages.
      6. The aforementioned claim involved a slip and fall due to the allegedly negligent maintenance and care of the Defendant’s premises. Plaintiff alleged that a mopping of Defendant’s premises left puddles of water which Defendant knew or should have known, created an unreasonably dangerous condition which negligence resulted in injuries to the Plaintiffs.
      7. I spoke with a witness, Marina Stewart, who informed me that she was an employee of the mall and she had gone out to the scene of the accident and had observed the puddles where the Plaintiff had fallen.
      8.Due to the fact that the liability aspect of any slip and fall case is extremely difficult to prove, I felt it was absolutely essential that Marina Stewart testify as to the condition of the floor at a time immediately subsequent to the accident in question. The testimony of Marina Stewart provided the only verification of the Plaintiffs version of the facts necessary to establish the culpability of the Defendants.

      .Mr. Batman’s subsequent affidavit states:
      1. I, John Batman, have personal knowledge of the facts and opinions asserted herein.
      2. Not calling Marina Stewart to trial as a witness, in my opinion, does not constitute legal malpractice in this case.
      3. I have reviewed the affidavit of GROVER MOSKOWITZ (see supra at footnote 1) and agree that under those circumstances Marina Stewart should not have been called to testify at trial as a witness.
      4. My affidavit of February 10, 1981, should in no way be taken to infer that GROVER MOSKOWITZ committed legal malpractice or acted below the standard of care in not calling Marina Stewart as a witness at trial.


text:
    Johnny T. MILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1323.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied July 14, 1982.

      Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Appellant seeks review of his convictions of two counts of robbery using a firearm, unlawful display of a firearm, and two counts of burglary. The remaining eighteen counts of a similar nature charged in the information were severed and appellant was tried on only the above five counts.

Appellant is urging reversal upon the ground that the trial court erred in permitting the introduction of evidence of numerous other collateral crimes for the purpose of establishing the identity of appellant.

We have considered appellant’s point on appeal in the light of the record and briefs, and have concluded that no reversible error has been demonstrated. Ruffin v. State, 397 So.2d 277 (Fla.1981), cert. denied, - U.S. -, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Therefore the judgment and sentences are affirmed.

Affirmed.


text:
    SCHWAB & COMPANY, INC. and Utica Mutual Insurance Company, Appellants, v. Joseph COTRONE and United Container and Ship Repair, Inc., Appellees.
    Nos. 81-1535, 81-1656.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied July 16, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Patton, Kanner, Segal, King & Kubit and Dennis King, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. General Motors Acceptance Corporation v. American Liberty Insurance Company, 238 So.2d 450 (Fla. 1st DCA 1970); Mims Crane Service, Inc. v. Insley Manufacturing Corporation, 226 So.2d 836 (Fla. 2d DCA 1969); Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla. 3d DCA 1969); Durbin Paper Stock Company v. Watson-David Insurance Company, 167 So.2d 34 (Fla. 3d DCA 1964); Fontainebleau Hotel Corporation v. Postol, 142 So.2d 299 (Fla. 3d DCA 1962); 17 Fla. Jur.2d, Damages § 75.


text:
    Guy Emery MOSIER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1607.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied July 15, 1982.
    Roy E. Black and Frank C. Furci, Miami, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

This appeal involves events subsequent to remand in State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981). In that case, the court held:

We vacate the order appealed and remand for an evidentiary determination of whether or not the suitcase was effectively detained because of state action pertaining to the officer’s investigation. If so, then the motion to suppress should be granted; if the suitcase was not seized prior to Dewey’s sniff, then the motion should be denied.

State v. Mosier, supra.

Pursuant to our mandate, the trial court conducted an evidentiary hearing and found that the suitcase in question was not detained because of state action. Consistent with our mandate, the trial court then denied the motion to suppress. Thereafter, the defendant entered a plea of nolo con-tendere, reserving his right to appeal the denial of the motion to suppress.

We have examined the record in detail and conclude that the trial court’s finding of “no state action” is supported by uncon-troverted evidence. The judgment and sentence are, accordingly, affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Carol PENSYL, Appellant, v. Michael Steven MOORE, Melisa Anne Moore, Kevin Moore, minors by their next friend, Mary Ann Moore, their mother, and Patrick Samuel Moore, individually, Appellees.
    No. 81-1722.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied July 15, 1982.

      Alldredge & Gray and James H. Gray, Jr., Miami, for appellant.
    Weintraub, Weintraub, Seiden, Dudley & Press and Albert L. Weintraub, Miami, for appellees.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

In a 1973 property settlement agreement which was incorporated into a final judgment of dissolution, Jerry Moore agreed with his then-wife that

[t]he Husband shall maintain and remain the owner of all life insurance policies on his life with the minor children herein as the direct or indirect beneficiaries thereof.

At the time, Mrs. Moore was named as the primary beneficiary and their four children the secondary or contingent beneficiaries of several family and group term life insurance policies, as well as of his retirement pension plan. Subsequently, however, Moore effected a purported change in the designated primary beneficiary of each of these benefits from his ex-wife to his girlfriend, the present appellant, Carol Pensyl. Although the children remained as secondary beneficiaries, this action, if deemed effective, violated the requirement that they continue as either “direct or indirect” beneficiaries of the policies. The expression, which is unknown to the law of insurance, was obviously adopted so that the children would indeed receive the benefits in question upon Moore’s death — either “directly,” that is, in their own names, or “indirectly,” through Moore’s estate or their mother, as was provided when the dissolution took place. Just as obviously, the children would receive no proceeds whatever if Ms. Pensyl were the actual recipient of the benefits.

In 1980, Mr. Moore died. At the conclusion of what became essentially an inter-pleader action between Ms. Pensyl and the Moore children over the benefits in question, both sides moved for summary judgment on concededly undisputed facts. The trial court granted the Moores’ motion and Pensyl appeals.

We affirm on the basis of our agreement with the trial court that the issue is controlled by the almost identical case of Dixon v. Dixon, 184 So.2d 478 (Fla.2d DCA 1966), cert. discharged, 194 So.2d 897 (Fla.1967), rather than Cadore v. Cadore, 67 So.2d 635 (Fla.1953), upon which the appellant wholly relies. Most significant of the decisive points of similarity with Dixon and distinction with Cadore is the fact that the agreement here required Moore to maintain his ownership of and the children’s beneficial interest in the policies in question. In contrast, Cadore was bound only to effect an initial change in the beneficiaries and was not obliged to refrain from permitting the policy to lapse, from again altering the beneficiary, or from transferring ownership of the policies altogether. The latter is just what occurred in Cadore, in which the transferee, Cadore’s new wife, actually paid several premiums before the insured’s death. These circumstances are again unlike this case, in which Moore himself, in accordance with his agreement, made all the required payments. Thus, the following statements in Dixon are both correct and controlling in this case.

The Cadore decision, however, does not control in the instant case because of the strikingly different provisions of the stipulation and decree. The decedent here was required ‘to keep current any and all policies in connection with his employment.’ Thus he failed to retain those crucial incidents of ownership and control which the Supreme Court found that the deceased in Cadore had retained. The policies here could not be allowed to lapse (except by the insured’s leaving his employment), and were required to be made and kept payable to his son, James, Jr. This was a continuing obligation. It could not be discharged by making one change of beneficiary; it could not be totally disregarded later by revoking the beneficiary or by any other change. Unlike the Cadore situation,[] the policy here had no cash or loan value which could have been liquidated by the insured; this insurance was, in effect, a term policy which only became operative upon death. In addition, there was no actual policy ever issued by the carrier, and the only apparent evidence of the policy, the company’s certificate of insurance, was in the possession of the beneficiary’s guardian, rather than in the possession of the deceased as in Cadore.
******
We hold that the terms of the stipulation were so encompassing as to amount to a surrender of the essential incidents of ownership. If a person may make a parole gift of his policy ownership, a for-tiori he may, by written stipulation concurrent with the bargaining inherent in a divorce settlement, similarly divest himself of his ownership interest in an insurance policy.
******
... So far as decedent’s obligation under the stipulation was concerned, he had no power in contemplation of law to name anyone other than his son, James, Jr., as beneficiary. There was no consideration given by anyone for the unauthorized change of beneficiary, no rights of third parties intervened and no person other than the deceased (and his employer) paid the premiums. Under these circumstances we will not allow the obvious intent of the divorce decree to be casually disregarded under the guise of insurance policy provisions designed to fit other purposes. It would be futile, as we glean from the record, to remand the appellant to some breach of contract action against this decedent’s estate. Moreover, we conclude that the present action, brought in chancery, is an altogether appropriate vehicle for the appellant to assert equitable title to the proceeds. See Yates v. Yates, 272 F.2d 52 (5th Cir. 1959).

184 So.2d at 480, 481. See also Yates v. Yates, 272 F.2d 52 (5th Cir. 1959); Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958). The summary judgment holding that Moore’s children were the owners of the pension plan and the policies in dispute and are therefore entitled to the proceeds is accordingly

Affirmed.

      . As well as the present one.