text:
    DEPENDABLE INSURANCE COMPANY, INC., Appellant, v. Alison B. LANDERS, Appellee.
    No. 81-1362.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Rehearing Denied Nov. 5, 1982.
    Joseph Egan, Jr., of Pilacek, Egan, Cohen & Williams, Orlando, for appellant.
    Roger A. Kelly, of Fishback, Davis, Dominick & Bennett, Orlando, for appellee.
   SHARP, Judge.

Dependable Insurance Company, Inc. appeals from a Final Summary Judgment denying it a deficiency judgment against Ms. Landers because of failure to send her notice of the time after which a private sale of her automobile would take place. The court also granted Landers’ counterclaim against Dependable, which was based on failure to comply with sending notice. The damage award of one thousand five hundred ninety-six dollars eighty cents ($1,596.80) was based on the service charge or time price differential plus ten percent. We reverse the damage award because it has been asserted against the wrong party; and we remand for trial the question of whether or not Landers waived her right to receive notice of sale, because the record presents conflicting facts and inference on this issue.

The facts and circumstances in this case are sufficiently unusual as to remove it from the easy application of rules evolved in this area of substantive law. In August of 1978, Landers purchased a new 1978 MG roadster from Collier Auto Sales, Inc. She financed part of the purchase price, and executed a Retail Installment Contract for five thousand nine hundred ninety-one dollars thirty-six cents ($5,991.36). Shortly thereafter, the installment sales contract was assigned to Sun First National Bank.

In October of 1978, Landers had an accident with the MG and it was severely damaged. Landers had the car taken to Ware & Sons Body Shop, where it remained for six months. At some point during that time period Landers learned the MG had been “totalled.” She also learned that Allstate Insurance Company cancelled her insurance on the car the day before her accident. She brought suit against Allstate and recovered a settlement of three thousand dollars ($3,000).

Landers told the Bank about the accident, her lack of insurance, but not about her settlement with Allstate. The Bank first tried to get vendor’s single interest coverage on the car. But since the accident had taken place before the Bank applied for coverage, the Bank relied on a blanket insurance policy it had with Dependable.

Landers continued to pay the Bank on her contract through February of 1979. Then her attorney wrote the Bank a letter dated April 17, 1979. It said:

Please be advised that Ms. Landers will not make any further payments on the above account, and you may consider it in default. The collateral is located at Ware & Sons, 2591 West Washington Street, Orlando, Florida. You may take whatever action you deem necessary to protect the interest of Sun First National Bank of Orlando. We will appreciate being advised of the deficiency balance which will be assigned to the single interest insurance carrier along with an itemization of the computation of the balance.
I have previously advised you that Ms. Landers’ automobile insurance with Allstate Insurance Company was cancelled without notice to her effective October 2, 1978, the day prior to the accident in which her automobile sustained damage rendering it a total loss ....
For the reasons set forth hereinabove, Ms. Landers reasonably disputes her debt to Sun First National Bank of Orlando

Upon receipt of this letter, the Bank set the Landers file up as a repossession matter. It mailed a certified letter to Landers on April 24, 1979, notifying her the car would be sold within ten days at a private sale. However, the letter was incorrectly addressed and it was returned to the Bank undelivered. Another letter identical to the April 24, 1979 letter was prepared with a correct address for Landers, but the Bank had nothing in its file to show this letter was mailed. On May 23,1980, a third letter with the same content as the other letters was mailed to Landers’ correct address, according to the Bank’s records. Landers denied she ever received any of the letters. She had moved three times since purchasing the car.

In any event, the third letter was too late because on May 18,1979, the Bank sold the car to Ware & Sons for salvage for two hundred twenty-five dollars ($225). The Bank was pleased to get that much because by that time, the storage bill at Ware & Sons exceeded six hundred fifty dollars ($650).

After the sale, on June 11,1979, the bank assigned the Retail Installment Contract to Dependable, and sent Dependable its file on the transaction. The Security Agreement relating to the MG provided in caps and bold print:

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF.

Dependable paid the Bank three thousand six hundred thirty-four dollars fifteen cents ($3,634.15) for the MG under its blanket insurance policy. At the time Landers defaulted she owed a balance of four thousand one hundred sixty-three dollars four cents ($4,163.04) on the contract.

I

Dependable’s Right to a Deficiency Judgment Against Landers

Every district court of appeal in Florida except this one has adopted the interpretation of section 679.504(3), Florida Statutes (1981), that a secured creditor who repossesses collateral, but fails to give reasonable notice of the sale to the debtor before selling the collateral, loses its right to sue the debtor for a deficiency. There are jurisdictions which take different views, but it appears that our sister courts have sided with the weight of authority.

The rationale for denying the creditor a deficiency is partly historical. No right to a deficiency existed at common law or law merchant for a creditor who repossessed collateral and, when the right to a deficiency was created by pre-code statutes, strict compliance with the steps (including giving notice) set out in the statutes was required. The common law or law merchant continues under the Code unless expressly changed.

A stronger argument for the rule is the courts’ perception that the debtor’s right to redeem the collateral or protect himself from an unfair and perhaps secret sale depends, as a practical matter, on his receiving reasonable advance notice of the sale. To protect the debtor’s right of redemption, courts have read the notice requirement strictly. The remedy provided by section 9-507(1) of the U.C.C. which gives a debtor the right to sue the creditor for damages has been described as no substitute for the right of redemption, and in any event, it has been rejected as being the exclusive remedy for a debtor whose creditor has departed from the requirements of Part 5, Article 9 of the Code. Further, there is an unarticulated feeling that a debtor whose collateral has been repossessed and is being sold lacks resources to protect himself, and it is not too great a burden to require the stronger party to strictly comply with the statute. Accordingly, we adopt the majority view of section 679.504(3), Florida Statutes (1981).

However, under the circumstances as disclosed by the record in this case, we think there was a material question of fact whether or not Landers waived her right to notice of the sale, making summary judgment improper. The waiver issue is posed primarily by Landers’ attorney’s letter to the Bank and her de facto abandonment of the collateral at that point. Both Landers and the Bank knew the MG was worth only salvage, and Landers’ attorney possibly inferred he did not want to know about the sale by asking only to be told what the “deficiency” would be.

The resolution of the meaning of the letter in this context is a question for the trier of fact. Facts similar to those in this case have been held sufficient to constitute a waiver of the notice of sale requirement. See Nelson v. Monarch Investment Plan, Inc., 452 S.W.2d 375 (Ky.1970); Grant County Tractor Co. v. Nuss, 6 Wash.App. 866, 496 P.2d 966 (Ct.App.1972). In other similar cases, courts have found no waiver.

We are aware of Florida’s unique or special provision in section 9-504(3) of the U.C.C. that notice of sale must be sent if the debtor “has not signed after default a conspicuous statement renouncing or modifying his right to notification of sale.” (Emphasis supplied). Landers’ attorney’s letter came after default, and since it was prepared by the debtor, not the creditor, the waiver, if intended, need not have been more conspicuous than the other points or paragraphs in the letter.

II

Landers’ Right to Damages Pursuant to Section 679.507(1), Florida Statutes (1981) Against Dependable

Assuming that Landers did not waive her right to notice of sale, she would have the right to recover

from the secured party any loss caused by a failure to comply with the provisions of this part. If the collateral is consumer goods the debtor has a right to recover in any event an amount not less than the credit service charge plus 10 percent of the principal amount of the debt or the time price differential plus 10 percent of the cash price. (Emphasis supplied).

§ 679.507(1), Fla.Stat. (1981). It is clear from this record that Dependable became the assignee of the installment sales contract long after the sale of the MG. The provisions of section 679.507(1) impose the liability or penalty for violating Part 5 of Article 9, on the secured party who has failed to proceed in accordance with the Code requirements—not a subsequent as-signee who had nothing to do with the defalcations. Allard v. Ford Motor Credit Co., 139 Vt. 162, 422 A.2d 940 (1980).

Appellee argues that pursuant to section 679.318(l)(a), Florida Statutes (1981), Dependable took assignment of the promissory note subject to “[a]ll the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom ...,” and therefore, it is liable to the same extent Sun Bank, its assignor, would be. However, this section is a codification of the common law rule regarding assignments, putting the assignee in the shoes of the assignor insofar as the asserted claims may defeat or reduce the assignee’s claim against the debtor. See Wear v. Farmers & Merchants Bank, 605 P.2d 27 (Alaska 1980); Hudson Supply & Equipment Co. v. Home Factors Corp., 210 A.2d 837 (D.C.1965); Nusbaum v. Riskin, 136 So.2d 1 (Fla. 2d DCA 1961); James Talcott, Inc. v. H. Corenzwit & Co., 76 N.J. 305, 387 A.2d 350 (1978).

Generally, unless the assignee assumes the assignor’s duties or liabilities, it,. is not liable to the debtor affirmatively, that is, beyond the point of defeating its claim. Farmers Acceptance Corp. v. DeLozier, 178 Colo. 291, 496 P.2d 1016 (1972); Conti Causeway Ford v. Jarossy, 114 N.J. Super. 382, 276 A.2d 402 (Ocean County Ct.1971), aff’d, 118 N.J.Super. 521, 288 A.2d 872 (1972). Failure to give notice in this ease would be a “shield” and not a “sword” as regards Dependable. If available as a defense, it could extinguish or reduce the deficiency against Dependable, but Sun Bank’s violation of section 679.504, Florida Statutes (1981) would not be available to make Dependable liable to Landers.

We do not think the record shows Dependable participated in the financing arrangement with Sun Bank so closely as to have constituted an implied assumption of its assignor’s duties and liabilities. Compare Massey-Ferguson Credit Corp. v. Brown, 173 Mont. 253, 567 P.2d 440 (1977). Nor do we think the language in the Installment Sales Contract that “any holder of this consumer credit contract is subject to all claims and defenses which the seller of goods or services obtained pursuant hereto or with the proceeds hereof” is applicable. The seller in this case was Collier Auto Sales, Inc., and no liability of Collier was involved in this suit. This case is distinguishable from Boden v. Atlantic Federal Savings & Loan Association, 396 So.2d 827 (Fla. 4th DCA 1981).

REVERSED AND REMANDED.

ORFINGER, C.J., and COWART, J., concur.

      . Section 679.504(3), Florida Statutes (1981), provides that after default, a secured party may repossess and sell collateral, but it is required to send notice to the debtor, prior to the sale. This subsection also says,
      Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time . .. after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor ....

      . Section 679.507(1), Florida Statutes (1981), provides that if a secured party does not comply with part 5 of Article 9 in disposing of collateral, the debtor may recover “any loss” or if the collateral is “consumer goods,” the debt- or may
      recover in any event an amount not less than the credit service charge plus 10 percent of the principal amount of the debt or the time price differential plus 10 percent of the cash price.

      . See Barnett Bank of Tallahassee v. Campbell, 402 So.2d 12 (Fla. 1st DCA 1981); Barnett v. Barnett Bank of Jacksonville, 345 So.2d 804 (Fla. 1st DCA 1977); Washington v. First Nat’l Bank of Miami, 332 So.2d 644 (Fla. 3d DCA 1976); Hepworth v. Orlando Bank & Trust Co., 323 So.2d 41 (Fla. 4th DCA 1975); Turk v. St. Petersburg Bank & Trust Co., 281 So.2d 534 (Fla. 2d DCA 1973).

      . See Norton v. Nat’l Bank of Commerce of Pine Bluff, 240 Ark. 143, 398 S.W.2d 538 (1966); Conti Causeway Ford v. Jarossy, 114 N.J.Super. 382, 276 A.2d 402 (Ocean County Ct.1971), aff’d, 118 N.J.Super. 521, 288 A.2d 872 (1972); Beneñcial Fin. Co. v. Young, 612 P.2d 1357 (Okl.1980); Grant County Tractor Co. v. Nuss, 6 Wash.App. 866, 496 P.2d 966 (1972).

      . See Skeels v. Universal CIT Credit Corp., 222 F.Supp. 696 (W.D.Pa.1963), vacated on other grounds, 335 F.2d 846 (3d Cir.1964); Atlas Thrift Co. v. Horan, 27 Cal.App.3d 999, 104 Cal.Rptr. 315 (Ct.App.1972); Braswell v. American Nat’l Bank, 117 Ga.App. 699, 161 S.E.2d 420 (Ct.App.1968); Morris Plan Co. of Betten-dorf v. Johnson, 133 Ill.App.3d 717, 271 N.E.2d 404 (App.Ct.1971); Camden Nat’l Bank v. St. Clair, 309 A.2d 329 (Me. 1973); Aimonetto v. Keepes, 501 P.2d 1017 (Wyo.1972).

      . Atlas Thrift Co. v. Horan, 27 Cal.App.3d 999, 104 Cal.Rptr. 315 (Ct.App.1972); Turk v. St. Petersburg Bank & Trust Co., 281 So.2d 534 (Fla. 2d DCA 1973); Camden Nat’l Bank v. St. Clair, 309 A.2d 329 (Me. 1973).

      . U.C.C. § 9-506.

      . Skeels v. Universal C1T Credit Corp., 222 F.Supp. 696 (W.D.Pa.1963), vacated on other grounds, 335 F.2d 846 (3rd Cir.1964); Braswell v. American Nat’l Bank, 117 Ga.App. 699, 161 S.E.2d 420 (Ct.App.1968); Morris Plan Co. of Bettendorf v. Johnson, 133 Ill.App.3d 717, 271 N.E.2d 404 (Ct.App.1971).

      . Camden Nat’l Bank v. St. Clair, 309 A.2d 329 (Me. 1973); Atlas Thrift Co. v. Horan, 27 Cal. App.3d 999, 104 Cal.Rptr. 315 (Ct.App.1972); U.C.C. § 1-103.

      . Camden Nat’l Bank v. St. Clair, 309 A.2d 329 (Me. 1973).

      . Appellee argues that waiver of notice was not specifically pled in reply to its Answer or Counterclaim. However, the Summary Judgment in this case was entered before all the motions directed at the sufficiency of the Counterclaim and Answer had been ruled upon. Further, on reviewing a summary judgment, the appellate court may and should look beyond the pleadings. Beckerman v. Greenbaum, 347 So.2d 141 (Fla. 2d DCA 1977); Forte v. Tripp & Skrip, 339 So.2d 698 (Fla. 3d DCA 1976).

      . Florida Shade Tobacco Growers, Inc. v. Jno. H. Swisher & Son, Inc., 369 So.2d 657 (Fla. 1st DCA 1979); Six L’s Packing Co. v. Florida Farm Bureau Mut. Ins. Co., 268 So.2d 560 (4th DCA 1972), cert, dismissed, 276 So.2d 37 (Fla. 1973).

      . See Federal Deposit Ins. Corp. v. Farrar, 231 N.W.2d 602 (Iowa 1975); Aimonetto v. Keepes, 501 P.2d 1017 (Wyo.1972). But see Bondurant v. Beard Equip. Co., 345 So.2d 806 (Fla. 1st DCA 1977) (similar facts to this case, but court held debtor’s actual knowledge the surrendered collateral would be sold constituted notice under section 679.504(3), Florida Statutes).

      . § 679.504(3), Fla.Stat. (1981). The definition of “conspicuous” in section 1-201(10) of the U.C.C. seems inapplicable here since it obviously contemplates a paper drafted by the creditor and sent to the debtor for signature.
      A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.
      § 671.201(10), Fla.Stat. (1981).


source: Caselaw Access Project

author: OTT, Chief Judge.

license: Public Domain

text:
    Nora MATOS, Appellant, v. Otsenre E. MATOS, Appellee.
    No. 81-1561.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1982.
    Rehearing Denied Nov. 4, 1982.

      Sondra Goldenfarb, Clearwater, and William M. Golson of Baskin & Sears, Clear-water, for appellant.
    Stephen C. Booth of Martin, Richmond & Booth, New Port Richey, for appellee.
   OTT, Chief Judge.

After a 13-year marriage, the appel-lee/husband moved out in September of 1978 and temporarily resided — and worked — in his individually owned condominium suite of medical offices. The appellant/wife and the couple’s seven-year-old child remained in the rented marital home. The seven-year-old child had been born with various facial abnormalities or deficiencies that had been and would continue to be the subject of medical correction and care.

Although the wife filed this action in October of 1978, previously commenced reconciliation or settlement efforts continued. The wife’s motion — or petition — seeking temporary alimony, child support, and an equitable division of the marital property filed contemporaneously with her dissolution petition was never called up for hearing, due in large part to voluntary payments and division hereafter noted.

In March of 1979, the parties apparently having abandoned the marriage, the husband filed his answer and counterpetition for dissolution. The parties continued their efforts to arrive at an amicable settlement of their affairs.

In the meanwhile, the husband secured an apartment and with the wife’s knowledge and consent remained in the rented marital home for a week or so while he prepared his rental unit for occupancy. During this period, the wife and their child were seeking and securing rental quarters to effect a move to the wife’s family’s home town of Pensacola, Florida. The husband, in completing his move, admitted taking some collector’s items, furniture, objects of art, and other things he wanted to his separate apartment, although he characterized them as inconsequential and of nominal value.

The wife, upon securing rental quarters in Pensacola, returned, and with the husband’s full knowledge — if not consent— hauled the remaining furniture, etc., in a U-Haul trailer to her newly acquired rented quarters in Pensacola.

The wife also took a $13,000 C.D. with her to Pensacola.

During most — if not all — of this extended period, the husband paid a portion of the wife’s credit card and. other commercial charge accounts, continued medical insurance coverage for his wife and child, paid certain of her automobile expenses, and provided the wife with a monthly stipend of $1,000. The wife was required to pay from the $1,000 all utilities, rent, and household expenses.

Sometime before the final. hearing the husband terminated all payments except the $1,000 per month. The wife sold some personal jewelry and other items to provide herself with additional funds.

At the time of the hearing before the master, the wife had approximately $10,000 remaining in the C.D.

The parties’ primary — if not only — jointly owned asset, and the source of sharp disagreement as to division and value, was a valuable horological collection. Each party had certain portions of this collection in his or her possession.

All other property — including the wife’s 1976 Toyota — was titled solely in the husband. The wife had driven the 1976 Toyota since its purchase and drove herself, the child, and the U-Haul trailer to Pensacola in it.

In his answer and counterclaim, the husband controverted the wife’s fitness as a mother, claimed equitable ownership of all property acquired during the marriage, and sought custody of the minor child together with support payments from the wife.

At the outset of the hearing, the, parties stipulated that each would file an itemized list of the items of the horological collection that each party acknowledged possessing and that a third list would be filed itemizing certain items of the collection that neither party would admit to having. It was expressly stipulated, however, that neither the division of this jointly owned collection nor its value was to be an issue for consideration or determination by the master or the court. If the parties could not later agree upon a division of the collection, it would be the subject of subsequent proceedings.

All other issues made by the pleadings and all other property matters were submitted to the master for the taking of evidence, his consideration, and determination.

No useful purpose will be served in setting forth the details of the sharp, almost complete disagreement of the parties on all matters. Their disagreement included the following:

1. Whether or not the husband had any interest in the $13,000 C.D. or even if he did whether or not it was given to the wife together with his interest, if any, in the household furniture and other personal property that she took with her to Pensacola;

2. The current values of the furniture and other personal property (other than the horological collection) in the possession of each of the parties in their respective rented residences;

3. The husband’s income and cash on hand;

4. The husband’s other assets — and their value — including his 1977 Cadillac, several classic sports automobiles he had purchased and at least partially restored during the marriage, and the husband’s individually owned condominium suite of offices and its furnishings;

5. The nature, extent, and cost of future medical care for the parties’ minor child; and

6.The needs of the wife and child and the ability of the husband to pay.

During the course of the testimony the husband’s attorney conceded — at different times — that the 1976 Toyota was the property of the wife; that the wife was a fit and proper mother and entitled to custody of the parties’ minor child; and that the husband should be responsible for the child’s support including the cost of the child’s future medical care, provided he was consulted in advance.

Considerable impeachment of the husband’s present testimony, values, and earlier-filed financial affidavits was pursued by the wife’s attorney.

In his findings, the master made the following very critical pertinent findings:

1. That the wife has made substantial contributions to the husband’s education by being gainfully employed while the husband was attending medical school, and thereby the husband’s position and earning ability has been substantially increased.

2. That the husband is capable of paying reasonable support for the parties’ minor child, together with any and all necessary medical, dental, and ocular expenses.

3. That the wife is entitled to alimony, and the husband is financially able to pay same.

4. That the wife is in need of, and the husband is able to pay, reasonable attorney’s fees and court costs.

5. That in regard to any pending matters involving personal property of the parties, the special master is unable to make any specific findings or recommendations in that no evidence or proof in regard to same has been submitted and, therefore, cannot make any recommendation in regard to any pending matters involving the personal property other than to say that whatever personal property is in the possession of each party should remain the property of such party.

Quite obviously the special master rejected the husband’s very liberal opinion of the present value of furniture the wife had taken to Pensacola which largely consisted of furniture the couple had purchased for $900 in Spain during the period the wife was working and putting the husband through medical school. The master found no disparity in the de facto division accomplished by the parties at the time of final separation, well before the hearing. For whatever his reasons — and there was ample evidence to support his conclusion — he found that neither of the parties had any claim to or interest in any property in the possession of the other, including the cash in their respective accounts.

Based purely upon the transcript of the testimony presented at the master’s hearing and the objections of the parties to specified portions thereof, the trial judge personally prepared and filed his final judgment in which he adopted most of the master’s report. However, the judge departed from certain portions thereof when he made the following findings and determinations:

1. The wife removed $13,000 from jointly held funds at or about the time of the separation and has a substantial portion of those funds remaining. The wife also removed jointly owned furnishings and tangible personal property, some of which were works of art and pieces of ivory and all of which had a value of approximately $45,000. By contrast, that which the husband removed from the home was nominal in terms of the number of items and the value thereof.

2. The wife is in need of child support and the husband is able to pay a reasonable amount. There is also a gross disparity in the reasonable prognostication of the future income-producing capabilities of the parties. The wife should be awarded periodic alimony to supplement her present income potential, and the husband is financially able to contribute a reasonable sum, taking into consideration the lump sum alimony which the wife receives by virtue of this judgment.

A reading of the transcript reveals these conclusions can only be reached by total, unqualified acceptance of the entire testimony, including husband’s maximum guess ($45,000) as to the value of the furniture the wife had taken to Pensacola and his lowest value (practically nothing) of what he had kept of the marital home furnishings and/or had in both his condominium-owned offices (where he lived for some months). The court also concluded, contrary to the master, that the wife should be charged with the full $13,000 in the C.D.

Based upon the above findings, the trial judge went on to determine that the wife should be charged with receiving from the husband “lump sum alimony” consisting of the $45,000 of furniture and other personal property plus the $13,000 C.D.

By reason of such lump sum alimony payment by the husband, the trial judge reduced the master’s awards of periodic alimony from $150 per week to $500 per month and child support from $150 per week to $450 per month.

When these actions of the trial judge were questioned on motion for rehearing, his reply was:

I don’t think that there is anything precluding the court from making a finding. based upon the transcript, which would be different from the findings that were addressed by the master. Clearly, the court, I think, has the right and the duty and the obligation to apply the law as understood by the court to what has transpired at the master’s hearing.

Truth, veracity, weight, credibility, believability, acceptability, reasonableness, and such like, of the testimony of live witnesses together with the effect, if any, of legitimate impeachment are peculiarly the function and prerogative of the fact-finder before whom witnesses personally appear and testify. We thoroughly agree that the trial judge should carefully determine whether or not the master’s findings and determinations are supported by substantial, competent evidence or whether there is any other departure from the essential requirements of applicable law. Shaw v. Shaw, 369 So.2d 81 (Fla. 3d DCA 1979). There are no such findings by the trial judge. However, where the trial judge chooses to appoint a master to hear the testimony and make findings of fact and determinations based thereon, the trial judge loses the prerogative of substituting his judgment, call, or determination in lieu of those lawfully reached by the master. His role essentially is the same, in these respects, as those of this court in reviewing the trial judge’s findings and determinations had he personally heard the testimony. Harmon v. Harmon, 40 So.2d 209 (Fla.1949).

Since the parties submitted the testimony to the trial judge in a subsequent proceeding concerning the amount of the fee to be awarded the wife’s attorney and, further, since no such testimony was presented to the master, we find no error in the trial judge having reduced the master’s fee award to the wife’s attorney from $6,000 to $4,500. Again, however, we cannot and do not approve of his “adjustment” of the amount the husband should pay to $2,500 based solely upon his finding— contrary to the master — that the wife had already received an unwarranted “lump sum” alimony of some $58,000 out of which she should pay the remaining $2,000.

The wife has accepted the trial judge’s limitations on travel expenses for the child’s medical care and his conditions on charging the husband with the medical expenses of the child. Nothing herein shall therefore be construed as modifying these matters in any particular.

We therefore VACATE only those findings or determinations of the trial judge as to lump sum alimony, the amount of child support, the amount of alimony, and the payment of any portion of the fee to her attorney. The final judgment is amended to include the determinations of the master that neither party has established any claim or interest in the property in the possession of the other, that the husband pay all of the fee to the wife’s attorney, and that the husband pay $150 per week alimony and $150 per week child support. As so amended, the final judgment is AFFIRMED.

GRIMES and SCHOONOVER, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    DON REID FORD, INC., a Florida corporation, formerly known as Johnny Bolton Ford, Inc., for the use and benefit of Florida Insurance Guaranty Association, Inc., a Florida corporation, Appellant, v. Bennett G. FELDMAN and Gulf Insurance Company, Appellees.
    No. 81-858.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 5, 1982.

      Robert W. Mixson and John W. Bussey, III, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Orlando, for appellant.
    John Ward Smith of Rumberger, Kirk, Caldwell & Cabaniss, P.A., Orlando, for ap-pellees.
   ORFINGER, Chief Judge.

The trial court entered a summary final judgment for appellees on the theory that the statute of limitations had run on appellant’s subrogation claim, and this appeal follows. We affirm.

When Don Reid Ford, Inc., (under the former name of Johnny Bolton Ford, Inc.), was sued for damages because of the negligent operation of a motor vehicle by one of its employees, its liability insurer, Commonwealth Insurance Company (Commonwealth) retained appellee Feldman as counsel to defend the action for its insured. When Feldman failed to appear for trial, a final judgment by default was entered against Don Reid Ford, Inc., on March 20, 1978. Because Commonwealth was now bankrupt, Don Reid Ford, Inc., paid the judgment and made a claim against appellant Florida Insurance Guaranty Association, Inc. (FIGA). FIGA paid Don Reid Ford, Inc., on February 5, 1980.

As subrogee of Don Reid Ford, Inc., FIGA filed this malpractice action on September 23, 1980, against Feldman and his malpractice insurer, seeking to recover the amount it had paid to Don Reid Ford, Inc. Feldman contended that the statute of limitations began to run on March 20, 1978, when the judgment was entered against Don Reid Ford, Inc., and that the present action was thus barred because it was filed more than two years from that date. The trial court agreed and entered the summary final judgment.

We agree that the statute of limitations began to run on the malpractice action when the judgment was entered against the insured because of the alleged malpractice of the attorney. FIGA has only the cause of action which Don Reid Ford, Inc., had against the attorney or, alternatively, the cause of action which Commonwealth would have had against its attorney, and either cause of action arose when the judgment was entered against Don Reid Ford, Inc. See State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So.2d 632 (Fla.1982); Dickerson v. Orange State Oil Co., 123 So.2d 562 (Fla.2d DCA 1960). The rule is summarized in the annotation in 91 A.L.R.3d 844 (1979) as follows:

Where insurers have brought actions for subrogation to recover, for injuries or damage for which the insurer has paid its insured, against a third party whose alleged tortious conduct caused the injuries or damage, such insurers have frequently attempted to have applied to the subrogation actions the same time of accrual as that applied to indemnity actions, but courts generally have adhered to the view that the statute of limitations begins to run on a subrogated insurer’s action against a third-party tortfeasor at the same time that the statute of limitations would begin to run on an action by the insured, or his personal representative in the event of the death of the insured, against the third-party tortfeasor. A rationale offered in support of this view has been that a subrogated insurer stands in the shoes of its insured, taking no rights other than those that the insured had, and at the same time being subject to all defenses which the third-party tortfeasor might assert against the insured.

Id. at 847.

Appellant relies on Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980), as support for its position that its subrogation action is a new cause of action and therefore the statute of limitations on its claim did not begin to run until it paid the judgment. City of Lauder-dale Lakes involves a factual situation not at all analogous to the case here and, moreover, the supreme court does not address in that case any question involving the statute of limitations.

The judgment is AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . See section 631.50, et seq., Florida Statutes (1979).

      . See section 95.11(4), Florida Statutes (1979).


author: PER CURIAM.

text:
    Juan Humberto MESA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-365.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.
    William A. Meadows, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Dalton v. State, 362 So.2d 457 (Fla. 4th DCA 1978), followed in Wallace v. State, 397 So.2d 1175 (Fla. 3d DCA 1981); see Gonzalez v. State, 410 So.2d 657 (Fla. 3d DCA 1982).


author: SCHOONOVER, Judge.

text:
    Timothy CLINTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-491.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 1982.
    Rehearing Denied Nov. 4, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

This appeal is the result of an order of the trial court holding that two municipal police officers were engaged in the lawful performance of their duties when they were battered by the appellant. We affirm.

On August 7, 1981, the Pasco County Sheriff’s Department received information that there was a fight in progress at a bar located approximately one mile outside of the city limits of Zephyrhills, Florida. Since they had no deputies in the immediate area, they requested assistance from the Zephyrhills Police Department. In response to that request, all units of the police department were dispatched to the area. Officer Scudder was the first to arrive and while trying to break up a fight between the appellant and his sister, he was hit and kicked by the appellant. Officer Hunt arrived shortly thereafter and was struck in the face twice while attempting to help Officer Scudder handcuff the appellant. The appellant was eventually subdued and placed in a police cruiser until the deputy sheriff arrived and arrested him.

Appellant was charged with two counts of battery upon a law enforcement officer in violation of section 784.07, Florida Statutes (1981), and one count of resisting arrest without violence in violation of section 843.02, Florida Statutes (1981).

Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), the appellant moved to dismiss the counts relating to battery of a law enforcement officer. When this motion was denied, he moved to change his plea to nolo contendere, stipulated that the state could prove a prima facie case, and specifically reserved his right to appeal the denial of his motion to dismiss. The plea was accepted, and the appellant was placed on probation.

Appellant was charged with battery of law enforcement officers in violation of section 784.07. This statute punishes persons who batter law enforcement officers in the lawful performance of their duties more severely than persons who commit the same act against any other person. § 784.03, Fla.Stat. (1981). The supreme court in the case of Soverino v. State, 356 So.2d 269 (Fla.1978), in discussing this statute stated at page 271:

Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public.

The appellant contends that because the officers he battered were outside of their jurisdiction at the time of the incident, they were not engaged in the lawful performance of their duties, and therefore, he cannot be punished under the more stringent statute relating to police officers.

We disagree and hold that if a law enforcement officer is investigating a disturbance outside of his jurisdiction at the request of a sheriff or a deputy having jurisdiction over the area involved, he is then engaged in the lawful performance of his duties.

In the instant case, it is true that the officers did not have the power to arrest the appellant in their capacity as police officers. The police officers were not directly commanded to assist in an arrest, and therefore, section 901.18, Florida Statutes (1981), is not applicable. Additionally, because the police officers were not conducting a lawful investigation of their own outside of the city limits of Zephyrhills, and were not in “fresh pursuit” of the appellant, they had no authority to arrest the appellant under section 901.25, Florida Statutes (1981). Since they had no statutory authority to arrest the appellant, they could only arrest him by exercising their citizen’s right to arrest a person who commits a misdemeanor in their presence when said misdemeanor amounts to breach of the peace. Sturman v. The City of Golden Beach, 355 So.2d 453 (Fla. 3d DCA 1978). If the appellant was arrested in this manner, and the power to arrest was our only concern, he would not be guilty of violating section 784.07 because a citizen is not an officer under the statute and, accordingly, cannot be engaged in the performance of his or her “official” duties.

However, the scope of an officer’s official duties is not coextensive with his power to arrest. In the case of United States v. Heliczer, 373 F.2d 241 (2nd Cir.1967), the Second Circuit Court of Appeal in construing a similar federal statute stated that an officer’s duties may cover many functions which have nothing whatsoever to do with making arrests. From time to time the officers may have a duty to make an arrest, but their power to make an arrest is not a natural incident derived from their regular duties, and must be separately granted by the act of a legislative body. Moreover, the legislative body granting the power, as in the case sub judice, may be a different one from that which prescribes their duties. The court stated further that an officer is engaged in the performance of his official duties when he is acting within the scope of what he is employed to do. It cannot be said that an officer who has made an arrest loses his official capacity if the arrest is subsequently adjudged to be either unlawful, or not within the powers granted to one in his position.

In the case sub judice, a breach of the peace was reported to the sheriff’s department. Pursuant to section 30.15, Florida Statutes (1981), the sheriff of Pasco County or his deputy had the authority to raise the power of the county and command any person to assist him. Accordingly, the sheriff’s department was within their authority to command the Zephyrhills Police Department to assist. The police department having been commanded to assist, the police officers had no alternative but to respond, and in doing so, Officers Scudder and Hunt were engaged in the lawful performance of their duties at the time they were battered by the appellant.

We accordingly affirm.

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


author: SCHEB, Judge.

text:
    Anthony HALL, Appellant, v. STATE of Florida, Appellee.
    No. 82-473.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.

      Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Hall challenges the trial court’s revocation of his probation. He contends the court erred in requiring him to testify, over his objection, as to his having been convicted and sentenced for certain crimes committed after he was placed on probation. Hall argues that the requirement that he testify violated his constitutional rights against self-incrimination.

We reject appellant’s contention. In Dearing v. State, 388 So.2d 296 (Fla. 3d DCA 1980), cert. denied, 399 So.2d 1141 (Fla. 1981), the court held that a probationer has no privilege against self-incrimination with respect to an offense he committed after being placed on probation, and for which he could not be subsequently prosecuted. We agree.

We reject appellant’s reliance on Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981), where we held that during the course of habitual offender proceedings the defendant could not be required to testify that he had been previously convicted of other crimes. There, we reasoned that the sentence enhancement proceedings were sufficiently related to the criminal trial as to require the application of the rule that the defendant cannot be forced to convict himself by his own testimony. However, there is no prohibition against requiring a probationer to testify in a revocation proceeding, subject to his privilege against self-incrimination with respect to specific conduct and circumstances concerning a separate criminal offense. State v. Heath, 343 So.2d 13 (Fla. 1977). In the instant case, the appellant cannot be subsequently prosecuted by virtue of having been forced to - testify as to his previous convictions. Therefore, Meehan has no application to this case, and we affirm the revocation of Hall’s probation.

Affirmed.

GRIMES, A.C.J., and CAMPBELL, J., concur.


text:
    The STATE of Florida, Appellant, v. Tommy BUSH, Appellee.
    No. 81-1833.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Deiches v. Kaney, 375 So.2d 584 (Fla. 5th DCA 1979); see State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981).


text:
    Gary STEVENSON and Samuel Avampato, Appellants, v. The STATE of Florida, Appellee.
    No. 81-2467.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Holmes & Holmes and James R. Holmes, Jr., Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWNE, Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Vetter v. State, 395 So.2d 1199 (Fla. 3d DCA 1981); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA), petition for review denied, 389 So.2d 1112 (Fla.1980).


text:
    CUSTOM HYDRAULICS, INC., a Florida corporation, Appellant, v. BORG-WARNER CORPORATION, a Delaware corporation, qualified to do business in the State of Florida, Sunshine Equipment Co., Inc., a Florida corporation, f/k/a Sunshine Fluid Power, a Florida corporation and Circuit Engineering, Inc., a Florida corporation, jointly and severally, Appellees.
    No. 81-2683.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Sciarretta, Jackvony & Buresh and Fredric C. Buresh and William D. Thompson, Fort Lauderdale, for appellant.
    Myers, Kaplan, Levinson, Kenin & Richards and William M. Grodnick, Smathers & Thompson and Douglas C. Broeker, Miami, Bunnell, Denman & Woulfe and Robert J. Cousins, Fort Lauderdale, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the trial court’s order granting appellees’ motion to dismiss pursuant to Florida Rule of Civil Procedure 1.420(e) for failure to prosecute. Appellant failed to show good cause in writing why the action should not be dismissed. No abuse of the trial court’s discretion is demonstrated by this record. See Bair v. Palm Beach Newspapers, 387 So.2d 517 (Fla. 4th DCA 1980); Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977).

Affirmed.


text:
    William A. BUSH and Marsha Bush, Appellants, v. DORAL COUNTRY CLUB, INC., a Florida corporation, Appellee.
    No. 82-200.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.

      Carey, Dwyer, Cole, Eckhart & Mason and Michael C. Spring, Miami, for appellants.
    Preddy, Kutner & Hardy and Howard K. Chema, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The summary judgment entered below in this negligence action is reversed because the defendant-movant did not conclusively demonstrate either its non-liability as a matter of law or that the plaintiff could not establish his right to recovery at trial. Holl v. Talcott, 191 So.2d 40 (Fla.1966); see Sims v. Helms, 345 So.2d 721, 724 (Fla.1977).


text:
    Jayson Bernstein NIARCHOS and Irving Roger Feldman, Appellants, v. CRYSTAL HOUSE, INC., Appellee.
    No. 82-1078.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Greenfield & DuVal and Harvie S. Du-Val, North Miami, for appellants.
    Becker, Poliakoff & Streitfeld and Edward S. Polk, Fort Lauderdale, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Trustees oí Cameron Brown v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980); In re Estate of Griffis, 399 So.2d 1048 (Fla. 4th DCA 1981), and cases cited therein,


text:
    Henry Alton WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1621.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Richard L. Jorandby, Public Defender, Allen DeWeese, Asst. Public Defender, and Eddie J. Bell, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

ANSTEAD, HURLEY and WALDEN, JJ., concur.


text:
    Cleveland ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1770.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Cleveland Arnold, Polk City, pro se, appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction for manslaughter is affirmed, but the sentence which included a mandatory three year minimum is vacated. See Akins v. State, 366 So.2d 1262 (Fla. 4th DCA 1979); Jones v. State, 356 So.2d 4 (Fla. 4th DCA 1977). Accordingly, the cause is remanded for resentencing. Appellant, however, need not be present at the resentencing.

Affirmed, but remanded for resentenc-ing.

HURLEY and DELL, JJ., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Natividad JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-128.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Natividad Jimenez, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for correction of sentence. See Zulla v. State, 404 So.2d 202 (Fla. 2d DCA 1981).

HURLEY and DELL, JJ., and DWIGHT L. GEIGER, Associate Judge, concur.


text:
    Joan BATT, Appellant, v. Nigel SMITH and Plantation Apparel Mart, Inc., Appellees.
    No. 82-436.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Keith J. Merrill of Straley & Merrill, North Miami, for appellant.
    Steven I. Greenwald of Suto & Green-wald, P.A., Boca Raton, for appellees.
   PER CURIAM.

The order appealed from here is neither a final order appealable under Rule 9.110, Florida Rules of Appellate Procedure nor a non-final order made appealable by Rule 9.130(a)(3), Florida Rules of Appellate Procedure. We therefore treat the application as one for review by writ of certiorari and we deny the writ.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


text:
    Muriel LORTIE and Marie Quimet, a majority of the last surviving Board of Directors of Two Brothers D’Arpino, Inc., a Florida corporation, Appellants, v. Bernard FORTIN, d/b/a Boardwalk Tavern and Samy Botton, Appellees.
    No. 82-720.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    John J. Murphy of Pallotto, Weir & Hay-son, Hollywood, for appellants.
    Daniel B. Bass, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

The final judgment appealed from here resulted after a directed verdict based upon the trial court’s determination that appellants appropriate remedy was by way of a stockholder’s derivative action rather than through an action brought by appellants in their capacities as trustees of a dissolved corporation. We agree. See, e.g., Carothers v. Patton, 288 So.2d 293 (Fla.3d DCA 1973). . We therefore affirm.

AFFIRMED.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


text:
    Rupert G. WILLIAMS, Appellant, v. Dennis J. FEUER, Appellee.
    No. 82-1482.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Rehearing Denied Nov. 30, 1982.
    John T. Milton of Edward E. Kuhnel, P.A., Palm Beach, for appellant.
    Joseph S. Karp of Bernstein, Narkier, Sharff, Monchick & Karp, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal from an order denying a motion to set aside a final judgment based on a default the record is clear that appellant knew the status of the proceedings at least ten months before filing his motion. Under the circumstances present here the trial court did not abuse its discretion in denying the motion. Sternberg v. Barnett Bank of Fort Lauderdale, 400 So.2d 200 (Fla.4th DCA 1981). See, also, Lacore v. Giralda Bake Shop, Inc., 407 So.2d 275 (Fla. 3d DCA 1982). Williams’ inaction, like Steinberg’s, was not legally excusable. We therefore affirm.

AFFIRMED.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Harold I. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 82-55.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1982.
    Walter 0. Hobbs of Harry M. Hobbs, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Reversed on the authority of Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979), and remanded for discharge of appellant.

HOBSON, A.C.J., and BOARDMAN and SCHEB, JJ., concur.


text:
    Keith GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2408.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender, and James C. Blecke, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the trial court’s denial of defendant’s motion to suppress upon a holding that the record affirmatively demonstrates that no exigent circumstances or recognized exception existed to justify the warrantless search and seizure in this case. See Martin v. State, 360 So.2d 396 (Fla. 1978). Our reversal makes it unnecessary to consider the other issue on appeal.

The conviction under review is reversed and the cause remanded to the trial court with directions to discharge the defendant.


text:
    Elvira Bruno COCCARELLO, individually and as Personal Representative of the Estate of Gio Batta Coccarello, Appellants, v. ROUND TABLE OF CORAL GABLES, INC. and Round Table Systems, Inc., individually and jointly, Appellees.
    No. 81-2692.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Horton, Perse & Ginsberg, Carroll, Hal-berg & Meyerson, Miami, for appellants.
    Richard E. Hardwick, Coral Gables, Daniels & Hicks and Patrice A. Talisman, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Where restaurant patron, in the presence of his wife and other customers, choked on food which caused his death the restaurant was not liable. A physician who was also a patron immediately treated the victim to no avail. Employees of the restaurant called a rescue team which arrived within five minutes.

A proprietor of a public place has a duty only to take reasonable action to give or secure first aid after he knows that a patron is ill or injured; he is not required to take any action beyond that which is reasonable under the circumstances. See Personal Representative of the Estate of John Edward Starling v. Fisherman’s Pier Inc., 401 So.2d 1136 (Fla. 4th DCA 1981), citing to Restatement (Second) of Torts § 314 A. The action taken by the proprietor under the circumstances herein was reasonable.

Summary Judgment is AFFIRMED.


text:
    Richard SWITLIK and Irene Switlik, Appellants, v. HARDWICKE’S NEW JERSEY PRESERVES, INC., a Delaware corporation and Great Adventure, Inc., a Delaware corporation, Appellees.
    No. 81-2744.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bailey & Dawes and Henry J. Whelchel, Miami, for appellants.
    Trenam, Simmons, Kemker, Seharf, Bar-kin, Frye & O’Neill and Harry Kemker, Miami, for appellees.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Rosenthal v. Largo Land Co., 146 Fla. 81, 200 So. 233 (1941); Smith v. Smith, 143 Fla. 159, 196 So. 409 (1940); Warner v. Watson, 35 Fla. 402, 17 So. 654 (1895); Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA), pet. for rev. denied, 407 So.2d 1103 (Fla.1981); Sharp v. Sharp, 185 So.2d 508 (Fla. 2d DCA 1966); Revell v. Crews, 97 So.2d 336, 339 (Fla. 2d DCA 1957), cert. denied, 101 So.2d 817 (Fla.1958).


text:
    Julio GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-76.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender and Randy S. Maultasch and John Lipinski, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Brown v. State, 124 So.2d 481 (Fla.1960); Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977); Castillo v. State, 308 So.2d 619 (Fla. 3d DCA 1975); Kimbrough v. State, 219 So.2d 58 (Fla. 1st DCA 1969); Section 924.33 Fla.Stat. (1981).


text:
    Ralph Garcia PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-228.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Henry Lee Morgenstern, Key West, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff and Calvin L. Fox, Asst. Attys. Gen., for appellee.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

In the absence of any evidence establishing defendant’s nonavailability for trial, we reverse the conviction herein and remand with directions to discharge the defendant. State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978); Fla.R.Crim.P. 3.191(f).

Reversed and remanded with directions.


text:
    Derrick TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 82-362.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See Borges v. State, 415 So.2d 1265 (Fla.1982) and cases cited; Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982).


text:
    Sandra COOK, Appellant, v. Phillip COOK, Appellee.
    No. 82-377.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Ress, Gomez, Rosenberg & Howland and Roland Gomez, North Miami, for appellant.
    Quinton, Lummus, Dunwody & Adams and James D. Adams, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. E.W. Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla. 2d DCA 1976); Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1965); see Bryant v. Small, 258 So.2d 459 (Fla. 3d DCA), cert. denied, 265 So.2d 51 (Fla.1972).


text:
    Ayrton H. SWEENEY, Appellant, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 82-394.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Jesse J. McCrary, Jr. and Michael J. Nei-mand, Miami, for appellant.
    Jim Smith, Atty. Gen. and Eric J. Taylor, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Wright v. State, 409 So.2d 1183 (Fla. 4th DCA 1982).


text:
    Ann FEIN, Appellant, v. Bernard SCHANDLER and Doris Schandler, Appellees.
    No. 82-761.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Weinstein & Zimmerman and E. Ross Zimmerman, Fort Lauderdale, for appellant.
    Breger & Breger and Richard P. Breger, North Miami Beach, for appellees.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. In re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977); Courshon v. Fontainebleau Hotel Corporation, 307 So.2d 901 (Fla. 3d DCA 1975); Oceanic International Corporation v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981).


text:
    Jose RAPPARD, a/k/a Jose Angel Rappard, Appellant, v. The STATE of Florida, Appellee.
    No. 82-773.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Jefferson v. State, 298 So.2d 465 (Fla.3d DCA 1974).


author: BARKDULL, Judge.

text:
    L.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-868.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender and Lane Abraham, Sp., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Scott A. Silver, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   BARKDULL, Judge.

The charging document in this juvenile proceeding alleges an attempt to commit a sexual battery and lists certain designated acts in an attempt to support the charge as follows:

This child, on or about February 9, 1982, in Dade County, Florida, did unlawfully and feloniously attempt to commit a sexual battery upon a person over the age of eleven (11) years, and in furtherance thereof did: TOUCH THE BREASTS, BUTTOCKS AND VAGINAL AREA OF AND RESTRAIN WHILE UNSNAPPING HER PANTS, without the consent of and in the process used physical force and violence not likely to cause serious personal injury, in violation of 777.04, 794.011(5), Florida Statutes. (Name of minor eliminated).

It is the appellant’s position that the alleged act spelled out in the charging document must in and of itself supply the requisite proof of the underlying intent. An attempt to commit a crime involves an in-completed act as distinguished from a completed act necessary for the crime. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Robinson v. State, 263 So.2d 595 (Fla.3d DCA 1972). An attempt involves two essential elements: specific intent to commit the crime and a separate overt, ineffectual act done towards its commission. Littles v. State, 384 So.2d 744 (Fla. 1st DCA 1980). The intent and the act must be such that they would have resulted, except for the interference of some cause preventing the carrying out of the intent, in the completed commission of the crime. Adams v. Murphy 394 So.2d 411 (Fla.1981). The crime herein is attempted sexual battery. Sexual battery is defined as the “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any object; ...” Section 794.011(1)(f) Fla.Stat. (1981). An attempt to commit such an act would certainly be facilitated by the overt act of attempting to remove the pants of the victim. Thus it appears that the charging document filed herein sufficiently alleges a separate overt act done towards the commission of the crime and the argument of the appellant herein that it was subject to a motion to dismiss is without merit.

The other point urged for reversal is also found to be without merit. Tibbs v. State, 397 So.2d 1120 (Fla.1981); Littles v. State, supra.

Therefore the adjudication is affirmed.

Affirmed.


text:
    Nicasio MIRABAL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-965.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Covington v. State, 302 So.2d 483 (Fla. 2d DCA 1974); see also, Tibbs v. State, 397 So.2d 1120 (Fla.1981); Thompson v. State, 397 So.2d 354 (Fla. 3d DCA 1981); Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA 1973), cert. denied, 277 So.2d 287 (Fla. 1973).