author: ANSTEAD, Judge.

text:
    Robert John HART and Charles Ray Hewitt, Appellants, v. STATE of Florida, Appellee.
    No. 81-1231.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.

      Alan Jay Braverman of Law Offices of Alan Jay Braverman, P. A., for appellant Hewitt.
    Jeffrey Mark Harris, Fort Lauderdale, for appellant Hart.
    Jim Smith, Atty. Gen., Tallahassee, Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION TO REVIEW ORDER DENYING BAIL

ANSTEAD, Judge.

Petitioners Charles Ray Hewitt and Robert John Hart were convicted of trafficking in cannabis in violation of Section 893.-135(lXa), Florida Statutes (1979). In accordance with the provisions of Section 903.133, Florida Statutes (1980), the judge refused to set bail after petitioners were sentenced.

At issue is the constitutionality of Section 903.133, which prohibits bail pending appellate review to all persons adjudged guilty of drug trafficking in violation of Sections 893.13 and 893.135, Florida Statutes (1979). Specifically, petitioners contend Section 903.133 conflicts with the provisions of Florida Rules of Criminal Procedure 3.130(a) and 3.691(a) and encroaches upon the rule-making authority granted to the Florida Supreme Court under Article V, Section 2(a) of the Florida Constitution which provides:

SECTION 2. Administration; practice and procedure.—
(a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

It is axiomatic, of course, that the rule-making power granted to the Florida Supreme Court under Article V, Section 2(a) is limited to the promulgation of rules of “procedure”; the prescription of “substantive” law is said to be the exclusive prerogative of the Legislature. State v. Garcia, 229 So.2d 236 (Fla.1969). As stated in Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975):

Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions. See In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973); In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.) amended 272 So.2d 513 (Fla.1973).

“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor, while procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” State v. Garcia, at 238. However, “in some instances it is difficult to determine whether a rule relates to a matter that is substantive or a matter that is procedural.” Id. The Florida Supreme Court has itself experienced this difficulty; in Benyard v. Wainwright, the court conceded that its own Florida Rule of Criminal Procedure 3.722, by providing that defendants convicted of two or more crimes were presumed to have been sentenced concurrently unless the trial judge specified differently, was substantive law and hence invalid since it conflicted with Section 921.-16, Florida Statutes, which specified that defendants in such situations were presumed to have been sentenced consecutively-

In the present case we must determine whether Florida Rules of Criminal Procedure 3.130(a) and 3.691(a), which provide for the discretionary post-trial release of defendants whose convictions were not for capital offenses and who do not have any previous felony convictions, should prevail over Section 903.133, Florida Statutes, which provides that defendants who are convicted of first degree felony violations of Sections 893.13 and 893.135 shall not be entitled to post-trial release under any circumstances.

Although Section 903.133, Florida Statutes, was not adopted by the legislature until 1980, a statute having a similar effect, Section 903.131, later 903.132, was passed by the legislature in 1969. In its original form, Section 903.131 prohibited bail on appeal to a convicted felon who had “previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights had not been restored.” In Greene v. State, 238 So.2d 296 (Fla.1970), the Supreme Court upheld the constitutionality of Section 903.131 upon an attack similar to the one raised here:

Defendants’ argument that the statute is unconstitutional under Article II, Section 3 of the Florida Constitution — in 1968 Revision because it represents a legislative encroachment upon the powers of the judiciary is without merit. Historically the trial court has exercised wide discretion in determining the severity of punishment meted out to the convicted criminal. Yet the limits of this discretion are altered whenever the Legislature increases or decreases the minimum or maximum fine or imprisonment allowable for a given offense. The Legislature long ago preempted judicial discretion when it set mandatory death or life imprisonment punishments for rape and murder in the first degree. The Legislature has gone no further in passing the statute here attacked. Section 903.131 does not suffer the infirmity of violating the separation of powers doctrine. (Footnotes omitted).

238 So.2d at 299. The statute, by then numbered Section 903.132, was again upheld in Palladino v. Turner, 263 So.2d 206 (Fla.1972).

Later in 1972, the Florida Supreme Court promulgated Florida Rule of Criminal Procedure 3.691. In Re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972). Rule 3.691 (and Rule 3.130(a)) appeared to be in conflict with Section 903.132 insofar as the rule made the denial of bail on appeal to convicts with prior felony convictions whose civil rights have not been restored discretionary, whereas the statute made the denial of bail to such individuals mandatory. In 1974 the Second District Court of Appeal acknowledged this conflict and held that “the legislature cannot deprive the court of its discretion to determine whether bail should be granted pursuant to a rule of criminal procedure.” Bamber v. State, 300 So.2d 269, 270 (Fla. 2d DCA 1974). Accord, Rolle v. State, 314 So.2d 624 (Fla. 1st DCA 1975), cert. den., 334 So.2d 608 (Fla.1976). In determining that the entitlement to bail on appeal was a procedural matter, the Bamber and Rolle courts relied on inferences drawn from the Florida Supreme Court’s earlier decision in Bernhardt v. State, 288 So.2d 490 (Fla.1974), in which it was held that, “insofar as (Florida Statute) § 949.10 purports to deprive the court of its discretion in determining whether bail should be granted (to a probationer subsequently arrested on a felony charge), this portion of the statute is superseded by Rule 3.790, Fla.Cr.P.R.” 288 So.2d 497.

The legislature reacted to the Bamber decision by enacting an amendment to Section 903.132 which specifically provided not only for the denial of bail on appeal to previously convicted felons but also provided:

Section 2. Rules 3.130(a) and 3.691(a), Florida Rules of Criminal Procedure, are hereby repealed insofar as they are inconsistent with the provisions of s. 903.132, Florida Statutes, as amended by section 1 of this act.
Section 3. This act shall take effect upon becoming a law, except that section 2 shall take effect only if passed by a two-thirds vote of the membership of each house of the Legislature.

In The Florida Bar Re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977), the Florida Supreme Court amended both Rules 3.691 and 3.130(a) to conform to to the legislature’s revision of Section 903.-132.

In Gallie v. Wainwright, 362 So.2d 936 (Fla.1978), it was held that Section 903.132 and the new Rule 3.691(a) did not unconstitutionally deny either due process or equal protection of the law by denying bail to those convicted felons whose records reveal an earlier felony conviction for which civil rights have not been restored. Although the outcome of Gallie suggests that the court has determined the right to bail to be a matter of substantive law rather than of procedure, this question is explicitly addressed only in two brief footnotes.

In 1980, the Florida Legislature further limited the right to post-conviction release by passing Section 903.133, which is the focus of the current dispute. Section 903.-133 provides:

903.133. Bail on appeal; prohibited for certain drug convictions.—
Notwithstanding the provisions of s. 903.-132, no person adjudged guilty of a first-degree felony for a violation of s. 893.13 or s. 893.135 shall be admitted to bail pending appellate review.
History. — s. 1, ch. 80-72.
Note. — Section 2, ch. 80-72, repeals Rules 3.130(a) and 3.691(a), Florida Rules of Criminal Procedure, “. . . to the extent that they are inconsistent with the provisions of ...” this section.

In our view the reasoning employed by the Supreme Court in Greene v. State, quoted, in rejecting a similar constitutional attack, is also applicable here. Upon conviction and adjudication of guilt the appellants no longer enjoy a constitutional right to bail. Greene v. State. Under the provisions of Section 893.135 the legislature has mandated that persons adjudicated guilty of violating its terms must, in most instances, serve minimum mandatory terms of imprisonment. Trial judges have virtually no discretion as to the imposition of this punishment. In State v. Benitez, 395 So.2d 514 (Fla.1981), the Florida Supreme Court upheld the constitutionality of § 893.135 against numerous constitutional attacks and commented upon the legislative purpose of the statutory scheme, of which § 903.133 is an integral part:

Section 893.135 is a unique response to a serious and growing concern of the legislature regarding illegal drug activities in the State of Florida. Subsection (1) of the new law establishes severe mandatory minimum sentences for trafficking in various types of illegal drugs. Subsection (2) prevents the trial court from suspending, deferring or withholding the adjudication of guilt or the imposition of sentence on a person convicted under the law, and it eliminates the defendant’s eligibility for parole during the minimum mandatory sentence. Subsection (3) provides an “escape valve” from the statute’s rigors, based on the initiative of the prosecuting attorney, by permitting the court to reduce or suspend a sentence if a convicted defendant is willing to cooperate with law enforcement authorities in the detection or apprehension of others involved in drug trafficking.
Section 893.135 was enacted to assist law enforcement authorities in the investigation and prosecution of illegal drug trafficking at all levels of distribution, from the importer-organizer down to the “pusher” on the street. The harsh mandatory penalties of subsection (1) ameliorated by the prospect of leniency in subsection (3), were clearly calculated to provide a strong incentive for drug violators to cooperate with law enforcement authorities and become informers.

This reasoning applies to the enactment of Section 903.133. The provision mandating no release on bail, after adjudication and pending appeal, in effect requires a defendant to immediately commence serving a mandatory sentence. This is simply another aspect of the punishment provisions of the statutory scheme. Under these circumstances, and since a defendant who has been adjudicated and sentenced no longer enjoys a constitutional right to bail, we do not believe the legislature has overstepped its bounds in acting to prohibit bail on appeal. See Greene v. State. The courts may be supreme in controlling the procedures by which a defendant’s right to bail may be exercised, but such procedural authority cannot be exercised to interfere with the legislature’s legitimate exercise of its authority to punish criminal offenders. We also reject, on the authority of State v. Benitez, the other constitutional arguments advanced by the appellants.

Accordingly, we deny the motion for review, affirm the denial of bail and uphold the constitutionality of Section 903.133.

LETTS, C. J., and BERANEK, J., concur.

      . Florida Rule of Criminal Procedure 3.130(a), provides:
      (a) Offenses Less Than Capital. All persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. After conviction bail may be granted by either the trial or appellate court.

      . Florida Rule of Criminal Procedure 3.691(a), provides:
      (a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principle enunciated in Younghans vs. State, 90 So.2d 308 (Fla. 1956), provided, that no person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous; provided that in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored, or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

      . The defendant in Bernhardt had not been adjudicated guilty and hence was apparently still entitled to a constitutional right to bail. The Supreme Court, however, did not address this issue.

      . 13. ... Gallie also asserts that these provisions violate the Eighth Amendment’s prohibition against excessive bail as applied to the states through the Fourteenth Amendment, and suggests that the statute represents an impermissible encroachment on the judicial power by the legislature in violation of Article II, Section 3, Florida Constitution. Even assuming, however, that the Eighth Amendment is applicable to the states, see Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479 [484], 30 L.Ed.2d 502 (1971), it is clear that “there is no absolute federal constitutional right to bail after a state conviction.” Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). See also Hamilton v. New Mexico, 479 F.2d 343 (10th Cir. 1973); Bloss v. Michigan, 421 F.2d 903 (6th Cir. 1970); United States ex rel. Fink v. Heyd, 408 F.2d 7 (5th Cir. 1969). In any event, we have previously considered and rejected both of these contentions in Greene v. State, 238 So.2d 296 (Fla.1970).
      362 So.2d at 939.
      21. § 903.131, Fla.Stat., enacted by Ch. 69-307, Laws of Fla., and codified as § 903.132, Fla.Stat. (1969), provided:
      “No person may be admitted to bail upon appeal from a conviction of a felony if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored.”

        The inherent conflict between this prohibitive statute and our Court rule, which made bail in such cases discretionary, resulted in rulings by the First and Second District Courts of Appeal that the rule took precedence over the statute because bail is a procedural matter. Rolle v. State, 314 So.2d 624 (Fla. 1st DCA 1975); Bamber v. State, 300 So.2d 269 (Fla. 2d DCA 1974). It was expressly in response to these decisions that the legislature enacted Chapter 76-138, which revised Section 903.132 into its present form and repealed Rules 3.130(a) and 3.691(a) “insofar as they are inconsistent with" the amended statute. We have since acted to conform those rules. The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1250, 1262 (Fla.1977).
      362 So.2d at 941.

      . Pursuant to Article V, Section 2(a) of the Florida Constitution, Section 903.133 was passed by the requisite 2h majority vote necessary to repeal rules promulgated by the Florida Supreme Court.

      . For a discussion of the sentencing scheme, see State v. Benitez, 395 So.2d 514 (Fla.1981).

      . In addition, we note that under our constitutional scheme of separation of powers, the legislature may repeal provisions of rules enacted by the Supreme Court upon a two-thirds vote. As noted, id., there was a two-thirds vote here. See Article V, Section 2(a), supra.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    Naomi WILKERSON and Carroll C. Hughes, Appellants, v. Ronald J. GIBBS, Personal Representative of the Estate of E. J. Gibbs, Sr. and Gibbs Sanitation Service, Inc., a Florida corporation, Appellees.
    No. VV-463.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Ronald W. Ritchie of Reeves, King & Ritchie, Pensacola, for appellants.
    Phillip A. Bates of Emmanuel, Sheppard & Condon, and Fletcher Fleming of Shell, Fleming, Davis & Menge, Pensacola, for appellees.
   ERVIN, Judge.

Wilkerson and Hughes bring this appeal from an order of the trial court barring their present cause of action in trespass for mesne profits, filed after a judgment entered in a former action for ejectment in which they had prevailed. We agree with the lower court that the former common law action for mesne profits has now merged with the statutory action of ejectment, thus precluding a separate cause directed to mesne profits.

In 1973, the now deceased husband of appellant Wilkerson, together with appellant Hughes, filed an action to quiet title and to eject appellees from the same real property that was involved in appellants’ later action for mesne profits. In their former complaint for ejectment, the appellants did not seek as damages mesne profits, consequently they were awarded only possession of the real property. After appellants had filed their later action seeking mesne profits, the court granted appellees’ motion to dismiss, holding that the former common law action for mesne profits had now merged with the statutory action for ejectment, and that because of appellants’ failure to seek such damages in the former suit, they were thereafter barred from later requesting them.

The resolution to the question of whether a plaintiff is now barred from pursuing an action only for mesne profits after one has recovered in ejectment rests upon an examination of the common law history of both actions, as well as the legislative history of Chapter 66, pertaining to ejectment.

At early common law, two kinds of estates in land existed: freehold and non-freehold. A freehold estate was a life estate, or any other estate greater than a life estate; a non-freehold estate was any estate less than a life’s duration. If the holder of a freehold estate was ousted from possession, he was originally afforded a number of remedies in the form of certain real actions entitling him to recover possession of the fee and establish his right of title. The tenant was considered to have only a chattel or personal interest in the land. As a result, the holder of such limited interest, if ousted, was permitted to recover only damages for the wrongful ouster — he was not permitted to recover possession of the term. So that the tenant might be provided also with the right to recover possession, the action known as trespass for ejectment (trespass quare ejectione firmae) was developed. In that form of action, in addition to recovery of the land, one was allowed nominal damages; however, any profits accruing during the defendant’s adverse occupancy were denied him because, although every ejectment involved a trespass, the continued withholding of the land was not a trespass; consequently, one could not in that action obtain mesne profits. No fictions were involved in this proceeding, and the tenant brought his action directly against the alleged disseisor.

Because this new action became such an effective tool for trying the right to possession, the owners of the fee began to seek means whereby ejectment might also be extended to them, without violating the common law rule that its remedies were available only to non-freeholders. This rule of preclusion was eventually circumvented by a declaration in ejectment which asserted the following fictions: (1) that a lease was executed by the lessor to the tenant (the nominal plaintiff), and (2) that the plaintiff was ousted from possession by another person (the nominal defendant). The latter, known as the “casual ejector”, did not defend the action, but notified the person holding adversely that it was not his intention to defend, and that if the adverse possessor wished to defend, it was his responsibility to appear before the court and do so. Through this procedure the competing interests of the actual parties were finally brought to controversy before a court of law.

Since the same remedies of ejectment as were formerly available only to tenants were now extended to freeholders, the latter were allowed to recover in ejectment only nominal damages resulting from the wrongful ouster. In order to compensate the owners for profits or rents accruing from the time of the disseisor’s wrongful occupation of the premises, the separate action of trespass for mesne profits was developed. In that action, it was necessary for the owner, who at his option could sue either in his own name as the holder of the freehold, or in the name of the nominal plaintiff, to regain possession of the premises by a lawful reentry, that is by a judgment entered for him in the action of ejectment. Having recovered possession, he was, by a legal fiction, presumed to have been in possession throughout the intervening period of dispossession, thus enabling him to allege that the wrongful occupation was a continuing trespass, thereby entitling him, now restored to possession, to all the profits obtained during the period of the adverse possession.

The common law procedure by which one sues in ejectment has undergone major statutory changes in Florida. In 1859, the legislature passed an act providing generally, as is presently provided by Section 66.-011, Florida Statutes (1979), that it is no longer necessary to have any fictitious parties to an action in ejectment, but that the suit may be brought directly against the party in possession, or by the one claiming adversely. Unlike the present statute, the Act of 1859 provided that “the declaration shall contain a plain statement of the cause of action to entitle the plaintiff to recover the land in controversy, together with mesne profits.” (e? s.) The Florida Supreme Court has consistently recognized that the legislative purpose in enacting the statute was to do away with the necessity of bringing two separate actions, “and to provide for a final settlement, both as to the land, and damages for the detention thereof, in one action.” The court has further observed that the statutory words “together with mesne profits” meant damages which were “merely incidental to the suit.” Finally, although the court has not been directly faced with the question of whether the failure to request mesne profits in an action for ejectment precludes a later demand for such damages, it, nevertheless, has clearly stated that the pleader should combine his demand for mesne profits with his request for possession in his action for ejectment, thereby concluding both recovery of the real property and damages in the same case.

The above opinions strongly suggest that there now exists only one single tort; that mesne profits are simply incidental to the alleged wrongful possession, and that such damages must be claimed in one action, or not at all. This is the effect given statutes similar to ours by certain courts in other jurisdictions. Other courts, however, hold that in the absence of statutory provision to the contrary, the right to join causes of action for possession and for mesne profits is merely a privilege, and the plaintiff in ejectment may, at his election, confine the relief sought in such action to the recovery of possession, and later resort to a separate action for damages.

It would appear that the answer to the question whether the separate common law action for mesne profits yet remains in Florida rests primarily upon the language of the statute in ejectment. We consider that Florida’s statute, which required the pleader to allege a simple statement seeking recovery of the real property and then to request mesne profits, which were simply damages incidental to the primary relief sought, was a tacit expression that there was only one unitary cause of action. Therefore, upon the entry of a judgment in ejectment, by operation of the doctrine of merger, the judgment entered in the earlier cause barred a later action for damages. The fact that a plaintiff bringing ejectment makes no demand for mesne profits is immaterial as to whether he retains the right thereafter to seek them. Florida has long recognized that if the defendant’s wrongful act is single, the law requires that all damages sustained or accruing to one as a result of that one act must be claimed and recovered in one action or not at all.

We would be remiss if we did not observe that in 1967 the legislature deleted Section 70.03(1), Florida Statutes (1965), which had provided, similar to certain provisions in the act of 1859, that the complaint shall state a plain statement of the cause of action to recover the land, together with mesne profits. Nevertheless, this deletion did not instanter revive the old common law action of trespass for mesne profits. Section 49 to Chapter 67-254 explains that it was the legislative intent to delete certain statutory provisions which were either obsolete, redundant or duplicative, or in conflict with the Florida Rules of Civil Procedure.

In 1968, the Florida Supreme Court approved Form 1.940, for use with the Rules of Civil Procedure, to become effective October 1, 1968. It prescribes what should be alleged in a complaint in ejectment, and generally follows the statutory language stating that the action is one “to recover [possession of] real property”, and concludes with a demand for “judgment for possession of the property and damages against defendant.” Although the approved form does not explicitly use the words mesne profits, mesne profits are commonly understood to mean damages. Additionally, the legislature left intact the provisions of former Section 70.01 of the 1965 Florida Statutes (renumbered in 1967 as Section 66.011), abolishing common law ejectment, which, as previously observed, requires the real plaintiff in interest to bring his action directly against the real defendant in interest. Because the fictions remain abolished, the statutory action in ejectment is not dependent, as was its common law counterpart as extended to freeholders, upon the limited remedies available in common law ejectment to tenants, whose interest in the realty was considered only personal. Therefore, once the common law requirement of naming nominal plaintiffs and nominal defendants in ejectment was repealed, the rule limiting the prevailing plaintiff to only nominal damages in the action as it now exists must also be considered no longer extant.

The above legislative and judicial changes leave little room for doubt that the common law action of trespass for mesne profits has had no separate existence in Florida since 1859. Accordingly, the lower court’s order of dismissal must be

AFFIRMED.

THOMPSON, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.

      . Koffler and Reppy, Common Law Pleading, 226 (1969).

      . These remedies, referred to as the ancient real actions, were 60 in number. They were highly dilatory, expensive and unduly technical. Or, as Sedgwick and Wait observed:
      The highest technical skill and learning were requisite to comprehend and define the nature and purposes of these various Writs, the distinctions between which were refined, abstruse and often scarcely perceptible. In Personal Actions, however, there were never many Writs at Common Law. This very scarcity made personal actions attractive in early times, the pleader being seldom at a loss to know which Writ to choose; while in Real Actions the most experienced practitioner, exercising the utmost care, frequently sued out a Real Writ of the wrong degree, class or nature, thereby rendering the proceeding of no avail, and frequently imperill-ing the demandant’s right to a proper writ or remedy.
      Sedgwick & Wait, Principles and Practices Governing the Trial of Title to Land, 3 (N.Y.1882).

      . Keigwin, Cases in Common Law Pleading, 123 (2d ed. Rochester, 1934).

      . Salmond’s Law of Torts, 177 (10th ed., London, 1945).

      . As Koffler and Reppy observed:
      The common law believed in an economy of remedies. Where the law supplied a remedy to a given group of litigants, like the owners of freehold estates, they were generally limited to that remedy. When therefore the new action of trespass for ejectment was created, there naturally followed a period of time during which the new remedy remained unavailable to the owners of freehold estates.
      Koffler and Reppy, supra, n. 1, at 227.

      . The creation of the final stage of the fictitious proceeding in ejectment was attributed by Blackstone to Lord Chief Justice Roll during the middle of the 17th century. 3 Blackstone, Commentaries on the Laws of England, 203 (Hammond ed., San Francisco, 1890).

      . Shipman, Handbook on Common-Law Pleading, 175 (3d ed. by Ballantine, St. Paul, 1923).

      . Chitty advances an additional reason why only nominal damages were attainable in the fictitious proceeding of ejectment:
      The action in ejectment, ... being altogether a mere fiction, it being brought by a nominal plaintiff against a nominal defendant for a supposed ouster, merely nominal damages are given; and satisfaction for the injury the real plaintiff has sustained by being kept out of the mesne profits, & c. is not, in general included in the verdict in the ejectment.
      1 Chitty, Treatise on Pleading and Parties to Actions With Precedents and Forms, 192, 193 (14th Am. ed. by Perkins, Springfield 1866).

      . Chitty explains that the action in trespass for mesne profits was not affected by the fictions which were required in ejectment, so that it was to the advantage of the lessor to bring the action in his own name as plaintiff, as he could recover damages for the rents and profits received by the defendant prior to the demise alleged in the declaration in ejectment, to which he would have been denied if brought in the name of the nominal plaintiff. Id. at 194.

      . Blackstone, supra, n. 6, at 210.

      . Koffler and Reppy, supra, at 240.

      . Section 1, Ch. 999, Act of December 20, 1859 (McClellan’s Digest at 480).

      . Ashmead v. Wilson, 22 Fla. 255, 261 (1886). See also Norman v. Beekman, 58 Fla. 325, 50 So. 876 (1909); Wismer v. Alyea, 103 Fla. 1102, 138 So. 763 (1932); Kester v. Bostwick, 153 Fla. 437, 15 So.2d 201 (1943).

      . Wismer v. Alyea, supra, n. 13, 138 So. at 765.

      . Kester v. Bostwick, supra, n. 13, 15 So.2d at 205.

      . See Raymond v. Andrews, 60 Mass. 265 (6 Cush.) (1850), and Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493 (1952).

      . See Coburn v. Goodall, 72 Cal. 498, 14 P. 190 (1887); Texas Co. v. Wax, 226 Mo.App. 850, 36 S.W.2d 122 (1931).

      . See Sessions v. Stevens, 1 Fla. 233 (1847); Campbell v. Kauffman Mill. Co., 42 Fla. 328, 29 So. 435 (1900).

      . Gaynon v. Statum, 151 Fla. 793, 10 So.2d 432 (1942); Mims v. Reid, 98 So.2d 498 (Fla.1957); Goldman v. Kent Cleaners and Laundry, Inc., 110 So.2d 50 (Fla. 3d DCA 1959).

      . See § 49, Ch. 67-254 (Laws of Fla. 1967).

      . See In re: Florida Rules of Civil Procedure, 211 So.2d 174, 187 (Fla.1968).

      . See Kester v. Bostwick, supra, n. 13, 15 So.2d at 205.


author: PER CURIAM.

text:
    Eugene Frank ZILKA, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-397.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Nancy A. Daniels, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

The judgment and sentence are AFFIRMED. However, the cause is REMANDED for the purpose of correcting the record so that it clearly reflects the proper amount of credit for time previously served by appellant.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Everett L. BRADLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-684.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.

      Bennett H. Brummer, Public Defender and Richard L. Katz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Bradley v. State, 374 So.2d 1154 (Fla.3d DCA 1979); State v. Smail, 346 So.2d 641 (Fla.2d DCA 1977); State v. Belien, 379 So.2d 446 (Fla.3d DCA 1980).


text:
    Dario PEDRAJO, Appellant, v. Stanton SLOANE and the City of Miami Beach, a municipal corporation, Appellees.
    No. 80-1407.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Jepeway & Jepeway and Louis M. Jepe-way, Jr., Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Bernard S. Yedlin, Miami, for ap-pellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

We reverse the judgment entered for the defendants upon a directed verdict at the conclusion of the plaintiff’s case in an action for false arrest and imprisonment and malicious prosecution. Our review of the record in the required light most favorable to the appellant discloses the existence of a prima facie case and therefore of jury issues as to both theories. See e. g., Donner v. Hetherington, 399 So.2d 1011 (Fla.3d DCA 1981), and cases cited; Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla.3d DCA 1981); Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla.3d DCA 1980).

Reversed.

      . Marks v. Delcastillo, 386 So.2d 1259 (Fla.3d DCA 1980), review denied, 397 So.2d 778 (Fla.1981).


text:
    Joseph I. CASILLAS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1654.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Bennett H. Brummer, Public Defender and William A. Jongeward, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Percznski v. State, 366 So.2d 863 (Fla. 4th DCA 1979); Durcan v. State, 350 So.2d 525 (Fla.3d DCA 1977); Corbo v. State, 347 So.2d 133 (Fla.3d DCA 1977); McCloud v. State, 335 So.2d 257 (Fla. 1976); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1970); Section 787.02(1)(a), Florida Statutes (1977); Rule 3.190 Fla.R.Crim.P.


text:
    Anne Perry BLACK, Appellant, v. ORTHO PHARMACEUTICAL CORPORATION, a New Jersey Corporation, Appellee.
    No. 81-673.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    L. Burke Lewis, Los Angeles, Cal., for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Warriner v. Ferraro, 177 So.2d 723 (Fla.3d DCA 1965), cert. denied, 188 So.2d 319 (Fla. 1966).


text:
    K. R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-866.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. In the Interest of M.E., a child, 370 So.2d 795 (Fla. 1979); Addison v. State, 95 Fla. 737, 116 So. 629 (1928).


text:
    LIBRA ENTERPRISES, INC., Appellant, v. UTOTEM OF MIAMI, INC., Appellee.
    No. 81-902.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Earl H. Galitz, Miami Lakes, for appellant.
    Robert L. Roth, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Park Benziger & Co. v. Southern Wines & Spirits, Inc., 391 So.2d 681 (Fla. 1980); § 672.309, Fla.Stat. (1979).


text:
    CALMAQUIP ENGINEERING CORP., a Florida Corporation, Appellant, v. AA LAUNDRY MACHINERY COMPANY, an Illinois corporation doing business in Florida, Appellee.
    No. 81-1097.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Mark E. Fried, Key Biseayne, for appellant.
    Gary R. Gromet, Fort Lauderdale, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. North Shore Hospital, Inc. v. Barber 143 So.2d 849 (Fla. 1962); B. C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla.3d DCA 1981), and cases cited.


text:
    Manuel SERER, Sara Serer, and Serma Corporation, a Florida Corporation, Appellants, v. Maximo CAMBIASO, Appellee.
    No. 81-1245.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Byron G. Petersen, Miami, for appellants.
    Herbert A. Warren, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Ponce v. Demos, 159 Fla. 117, 31 So.2d 58 (1947); World Security Fund v. Schmidt, 406 So.2d 511 (Fla.3d DCA 1981); Hackley v. Oltz, 105 So.2d 20 (Fla.3d DCA 1958).


text:
    Barnett CHASKIN, Appellant, v. FIRST & MERCHANTS NATIONAL BANK, a Virginia banking corporation, Appellee.
    No. 81-1349.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.

      Batchelor, Brodnax, Guthie, Armstrong & Freyer and Timothy J. Armstrong, Miami, for appellant.
    Spear & Hoffman and L. Joseph Hoffman, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Newton v. Newton, 245 So.2d 45 (Fla. 1971); Slatcoff v. Dezen, 72 So.2d 800, 801 (Fla. 1954); Taylor v. Taylor, 258 So.2d 500 (Fla.3d DCA 1972).


text:
    James A. KIKIS, Appellant, v. FORD MOTOR COMPANY, Appellee.
    No. 79-197.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    Walter R. Moon and Edward Casoria, Jr. of Rush, Marshall, Bergstrom & Robison, P. A., Orlando, for appellant.
    Monroe E. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for appel-lee.
   PER CURIAM.

Based upon the mandate of the Supreme Court in its case no. 59,634, 401 So.2d 1341, we withdraw our previous decision and mandate herein and affirm the order of the trial court in so much as it orders a new trial.

IT IS SO ORDERED.


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

text:
    Clyde E. MEREDITH, Appellant, v. LOWE’S OF FLORIDA, INC., Heaton Construction, Inc., Keller Building Products of Orlando, Inc., L&M Builders Supplies, Inc., Scotty’s Home Builders Supply, Inc. of Orlando, William David Kimmons, d/b/a Classic Plumbing, Bobby Swindle d/b/a West Orange Roofing, A&B Heat & Air, Inc., Jose Arreseigor, Sunniland Corp., Chase & Company, Security First Federal Savings and Loan Association, Mitchell Gordon, d/b/a Gordon Construction Co., Richard L. Ghent and Phil Osborn, partners, d/b/a Mark ’76 Homes, Appellees.
    No. 80-1131.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.

      John H. Rhodes, Jr., of Rhodes & Hatch-er, P. A., Orlando, for appellant.
    Frederick W. Jones of Turnbull, Abner & Daniels, Winter Park, for appellee Security First Federal Sav. & Loan Ass’n.
    J. Gary Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellee Keller Building Products of Orlando, Inc.
    John R. Gierach of Edward & Ewald, P. A., Orlando, for appellee Heaton Construction, Inc.
    No appearance for appellees Lowe’s, L&M, Scotty’s, William Kimmons, Bobby Swindle, A&B Heat & Air, Jose Arreseigor, Chase & Co., Mitchell Gordon, Richard L. Ghent, Phil Osborn and Sunniland Corp.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Clyde E. Meredith contracted with Mitchell Gordon, a general contractor, to build his home. Gordon abandoned construction leaving several sub-contractors unpaid. Appellant sought suit for declaratory relief to determine how much, if anything, the various sub-contractors were entitled to receive from undisbursed construction funds. The court entered judgment in favor of several of the lienors. Appellant appeals contending that the court failed to adjust the contract price by his reasonable costs of completion.

The parties stipulated that the pre-aban-donment contract price was $39,629.50 and that there had been proper payments under section 713.06, Florida Statutes (1979), in the sum of $20,570.15. The difference remaining was $19,059.35. Appellant contends that section 713.06 limits liability of an owner and his land under the Mechanic’s Lien Law to the contract price and that the reasonable cost of completing the construction contract must be deducted from the contract price.

Section 713.06(1) provides in relevant part:

The total amount of all liens allowed under part I [Mechanic’s Lien Law] for furnishing labor, services, or material covered by any certain direct contract shall not exceed the amount of the contract price fixed by the direct contract except as provided in subsection (3). (emphasis added)

In Alton Tower, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla. 1972), the Florida Supreme Court declared that under our mechanics’ lien law, where a contractor on the general contract defaults prior to completion of work, the owner’s reasonable cost of completing the contract diminishes the balance of the contract price. Id. at 672.

Appellant introduced evidence establishing his cost of completion at $19,900 to $22,288.80 and therefore nothing remained for distribution because the difference between the pre-abandonment contract price and proper payment was $19,059.35 and the cost of completion $19,900, at the least.

The limited liability section of 713.06(1), however, applies “except as provided in subsection (3).” Here, the trial court determined that section 713.06(3Xh) was applicable and therefore the limited liability protection was unavailable. Section 713.-06(3)(h) provides:

When the owner has properly retained all sums required in this section to be retained but has otherwise made improper payments, the owner’s real property shall be liable to all . . .subcontractors. . .and materialmen complying with this chapter only to the extent of the retentions and improper payments, notwithstanding the other provisions of this subsection. . . . (emphasis added)

The parties stipulated that appellant had made improper payments of $3,420. Appellees contend that under Tamarac Village, Inc. v. Bates & Daly Co., 348 So.2d 23 (Fla. 4th DCA 1977), once improper payments are made, then the reasonable cost of completion cannot be considered.

In Tamarac, the court stated:

If an owner fulfills all the duties the Mechanics’ Lien Law places upon him, his liability for all mechanics’ lien claims cannot exceed the contract price.... However, if the owner makes improper payments, then he has failed to comply with the Mechanics’ Lien Law, and his liability for mechanics’ lien claims may exceed the contract price.

348 So.2d at 25.

The court held that because improper payments were made, “Tamarac could not deduct the pre-notice of commencement payments. . .nor the reasonable cost of completion from the adjusted contract price.” Id.

A close reading of the Tamarac opinion does not support appellees’ theory. In Ta-marac the reasonable costs of completion were themselves improper payments because Tamarac had failed to file a notice of recommencement.

Brea v. MPS Industries, Inc., 372 So.2d 212 (Fla.3d DCA 1979), however, does support appellees’ position. There the Third District Court of Appeal held that in an action to foreclose a mechanic’s lien, the landowner could not defend on the ground that the original contract price was exceeded by the amount of proper payments made and the reasonable cost of completion, where improper payments are made. The court cited Tamarac as authority for its holding though failed to note that there the reasonable costs of completion were themselves improper payments.

In the case before us, the contract price was $39,629.50. Payments made, both proper and improper, totaled $23,990.15, leaving a balance of $15,639.35 owed on the contract. As to the lienors, though, $3,420 was improperly paid so the balance remaining for completion of the work and payment of the lienors was $19,059.35. However, the reasonable cost to complete was $19,900 making the total cost to the owner $43,-890.15. These calculations reflect that the owner had been penalized 100% of the improper payments.

We reject the holding implicit in Brea that once a landowner makes improper payments, the reasonable costs of completion cannot be considered. Rather, we hold that the liability of the owner and his lands is limited to the contract price remaining after deducting therefrom payments properly made. Alton Towers. Payments reasonably necessary to complete the work, if made as required under chapter 713, Florida Statutes, are proper payments.

We REVERSE and REMAND for entry of judgment for appellant.

COBB and COWART, JJ., concur.

      . “Contract price” is defined in section 713.-01(3), Florida Statutes (1979), as meaning:
      The amount agreed upon by the contracting parties for performing all labor and services and furnishings all materials covered by their contract and shall be increased or diminished by the price of extras or change orders as herein defined, or by any amounts attributable to changes in the scope of the work or defects in workmanship or materials or any other breaches of the contract....

      . If appellees’ position were correct, this extreme example could result. A contractor on a $30,000 construction job abandons construction and the perfected liens total $10,000. Proper payments of $10,000 have been made, but it will take $20,000 to complete the work. Owner has made $1,000 in improper payments. If the improper payments would prevent consideration of the cost to complete, the lienors would be paid in full and the owner would be left with nothing to complete the work, a high price to extract for paying $1,000 incorrectly for had the owner not paid it, he would get his building completed and the lienors would get nothing.


author: COBB, Judge. SHARP, Judge,

text:
    Frank J. SCARFO and Mildred Scarfo, his wife, Appellants, v. Nicholas J. PEEVER, Jacqueline H. Peever, and Lindsay C. Peever, Appellees.
    No. 81-69.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    William H. Corbley, Orlando, for appellants.
    Robert W. Olsen, Orlando, for appellees.
   COBB, Judge.

This appeal challenges the trial court’s denial of acceleration by the mortgagees in a foreclosure action. This denial was based on a finding by the trial court that the conduct of the mortgagees “constituted a waiver by estoppel without first giving notice or some manifestation of plaintiffs’ intention to declare the whole payable, unless such payments due are paid within the time allowed. . . . ” We reverse.

The mortgagors (hereinafter referred to singularly as Peever) sent a check to the mortgagees (hereinafter Scarfo) for the payment due on April 9, 1980, on the last day before expiration of a thirty-day grace period. The record does not clearly reflect when Scarfo received the check, only that he did not present the check for payment immediately upon receipt. He testified that he did not immediately present the check for payment because he had the flu. When the check was presented it was dishonored, not once but twice. Peever testified that if Scarfo had cashed the check on May 9th, the last day of the grace period (and apparently the day of receipt), he believed the check would have been honored. Scarfo filed suit to accelerate and foreclose on June 5, 1979; Peever tendered in cash the in-default April payment and the late-but-not-yet-in-default May payment the day after suit was filed.

Trial testimony revealed that Peever never paid on the mortgage due date, the ninth of every month, but always paid before the thirty-day grace period had run. Scarfo would also take partial payments, and payments in the form of building materials. Peever testified that Scarfo never gave any indication that he would accelerate the balance of the mortgage for failure to timely pay.

The issue on appeal is whether there is substantial competent evidence to support this finding of the trial court. Scarfo argues no evidence exists to support the trial court’s findings, for while he accepted payments made during the thirty-day grace period, he never acquiesced to payments outside the grace period. He contends he cannot be estopped to accelerate when payment was attempted outside the grace period because Peever had always previously paid within the grace period. Peever relies on the rule of Treasure, Inc. v. White Star Realty Co., 101 So.2d 866 (Fla.1958): a trial court’s findings of fact will not be disturbed by an appellate court where there is substantial competent evidence to support its findings.

Refusal by a trial court to enforce an acceleration provision denies a mortgagee a contractual right; therefore, the provision should be effectuated unless it would be unconscionable to do so. Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929); Campbell v. Werner, 232 So.2d 252 (Fla.3d DCA 1970); Althouse v. Kenney, 182 So.2d 270 (Fla.2d DCA 1966). As discussed in Campbell, case law holds that acceleration is properly denied when waived, or when the mortgagee is estopped to assert it. Campbell outlined the situations where a mortgagee has been estopped to assert acceleration:

(1) where the mortgagee’s conduct causes the mortgagor to reasonably assume that upon a certain kind of default, the mortgagee would not exercise his right to accelerate;
(2) where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned;
(3) where the mortgagor tenders payment after default but before notice of the mortgagee’s election to accelerate;
(4) where there was intent to make timely payments, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period.

232 So.2d at 256-257.

In the present case, the trial court found that Scarfo’s conduct led Peever into a reasonable belief that he would not accelerate if payment was made outside the grace period. As the Scarfos contend, however, the evidence does not support his finding. The evidence established that payment was never timely, i. e., paid on the due date, and that Scarfo always accepted payments made during the thirty-day grace period. Sometimes Peever would make partial payments during the course of the month, but Scarfo testified that the entire payment due would always be paid by the end of the thirty-day period. Nothing in the record suggests that Scarfo would not have accelerated had Peever, as he ultimately did, failed to pay within the thirty-day grace period. As Scarfo suggests, the fact that Peever always utilized the grace period but always paid before it expired indicates he was aware that payment made outside the grace period would be unacceptable.

Jaudon v. Equitable Life Assurance Society of United States, 102 Fla. 782, 136 So. 517 (1931), cited by Peever, is unavailing. Jaudon stated the principle that a mortgagee by his conduct may induce the mortgagor to believe and act upon the belief that the mortgagee will not enforce the mortgage, and that in such case, the mortgagee must first notify the mortgagor of his intent to hold the mortgagor to strict compliance. Since Scarfo did not commit any acts that could have reasonably induced Peever into believing the mortgage would not be accelerated if payment was tendered after the grace period expired, the Jaudon principle does not apply to the present case. Northside Bank of Miami v. LaMelle, 380 So.2d 1322 (Fla.3d DCA 1980), also cited by Peever, does not apply to the present case. Northside Bank affirmed a summary judgment in favor of the mortgagors where the mortgagors pleaded the affirmative defenses of estoppel and unconscionability, alleging that the bank had a long history of accepting late monthly installments. As previously illustrated, Scarfo never accepted a payment tendered outside the thirty-day grace period; therefore, the mortgagee’s course of conduct that the Northside Bank court found to constitute unconsciona-bility and to require estoppel does not exist in the instant case.

Peever argues that he should be excused from default on the basis that he believes the check he mailed to Scarfo on May 8th would have been good had it been immediately deposited. The check was presented twice and dishonored twice. On May 22, 1979, Peever received notice from the bank that the check had been dishonored. He still failed to make a valid tender of the amount in default prior to initiation of suit by Scarfo. Since Peever elected to pay his mortgage obligation by personal check, it was his responsibility, not that of Scarfo, to insure that sufficient funds were available for payment where, as here, the check was presented within a reasonable time. Scarfo’s conduct in this respect does not support a finding of estoppel.

As stated in Campbell v. Werner, 232 So.2d 252 (Fla.3d DCA 1970), a contract for acceleration of a mortgage indebtedness should not be abrogated or impaired, or the remedy applicable thereto denied, except upon defensive pleading and proof of facts or circumstances which are regarded in law as sufficient grounds to prompt or support such action by the court. No such facts exist in the present case, and therefore the trial court’s finding was not supported by substantial competent evidence.

REVERSED.

FRANK D. UPCHURCH, Jr., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I agree with the majority that the finding of the trial court of waiver by estoppel was clearly erroneous. However, the ultimate question for this court is not whether the trial court’s reasoning was correct, but whether or not it reached the right conclusion. If the trial court’s decision denying acceleration and foreclosure can be justified on other grounds it should be affirmed. See Escarra v. Winn Dixie Stores, Inc., 131 So.2d 483, 485 (Fla.1961); Green v. Bruns, 102 So.2d 610 (Fla.1958).

The evidence before the trial court showed that after the complaint was filed but before service upon Peever, he made a valid tender of the delinquent payments without actual notice of an election by the mortgagee to accelerate. The mortgagor who tenders payment without notice of an election to accelerate is entitled to make past due payments and if he does so the right of the mortgagee to accelerate is defeated. Clay v. Girdner, 103 Fla. 135, 138 So. 490, 493 (1931).

In order to defeat the effect of a valid tender the decision of the mortgagee to accelerate must be disclosed to the mortgagor before the tender in some effective manner. While I recognize the established rule that the filing of a complaint is an election to accelerate and notice thereof, none of the eases articulating that rule involved a valid tender without actual notice and before service of process.

I do not believe that the mere filing of a complaint without service upon a mortgagor who does not have actual notice of an acceleration election is sufficient to defeat the effect of an otherwise valid tender. I would affirm on that ground.

      . Peever properly pled and argued the defense of a valid tender without actual notice.

      . River Holding Co. v. Nickel, 62 So.2d 702, 704 (Fla.1952).

      . See August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla.1953); Murray v. Stalnaker, 154 Fla. 64, 16 So.2d 650 (1944); Seligmann v. Bisz, 123 Fla. 493, 167 So. 38 (1936); Van Huss v. Prudential Ins. Co., 123 Fla. 20, 165 So. 896 (1936); Liles v. Savage, 121 Fla. 83, 163 So. 399 (1935); Douglas Properties v. Stix, 118 Fla. 354, 159 So. 1 (1935); Stegemann v. Emery, 108 Fla. 672, 146 So. 650 (1933); Jaudon v. Equitable Life Assur. Soc. of United States, 102 Fla. 782, 136 So. 517 (1931); Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929); Corlett v. Wood, 81 Fla. 510, 88 So. 268 (1921); Prince v. Mahin, 73 Fla. 525, 74 So. 696 (1917).


author: SHARP, Judge.

text:
    William Peter JANSEN and Sharon Rose Jansen, d/b/a Jansen Land Company, Appellants, v. Clifton R. DAVIS and Lillian V. Davis, Appellees.
    No. 81-212.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    R. Wm. Lyng, III, Kissimmee, for appellants.
    Addison E. Walker, St. Cloud, for appel-lees.
   SHARP, Judge.

The Jansens appeal from a summary final judgment in a mortgage foreclosure action.

After a review of the record we find no error committed by the lower court except that there was no affidavit or testimony to support the two hundred three dollar and three cent ($203.03) cost award to the plaintiff. This was conceded in oral argument.

Accordingly, the judgment is affirmed, except the cost item which is stricken.

AFFIRMED IN PART; REVERSED IN PART,

DAUKSCH, C. J., and ORFINGER, J., concur.


author: DAUKSCH, Chief Judge.

text:
    Beulah CALHOUN, Appellant, v. E. T. LEE, et al., Appellees.
    No. 81-245.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.

      Edward A. Nagel, Winter Park, for appellant.
    No appearance for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an order dismissing a complaint with prejudice. As a final order, it is appealable under Florida Rule of Appellate Procedure 9.030(b)(1)(A). The complaint alleged fraud and deceit in regard to appellee’s, and other’s, home improvement business. Various defendants were served process and their cases were disposed of by the court in a default judgment.

One defendant, appellee John Franta, had not been served when the default judgment was rendered so the cause of action against him was not terminated by the judgment. He was later served and sought to have the case dismissed because he said the court no longer had any jurisdiction over the subject matter of the lawsuit since it had been settled and a release had been executed as to one defendant and it was terminated by the default judgment as to the other served defendant. The court dismissed the complaint as to John Franta, in accordance with Franta’s request.

We must reverse the order dismissing the complaint as to John Franta because neither the release in favor of E. T. Lee solely, nor the default judgment as to Robert Franta, were effective to terminate the action against John Franta. In fact, John Franta had not even been served with process at the time the release was executed and the judgment rendered. Although appellee has not favored us with a brief we can tell from his motions in the trial court that he is of the opinion that the release of one tortfeasor is the release of all. That is not so and section 768.041(1), Florida Statutes (1979), is applicable. Additionally, the release is explicit in its terms as being applicable only to E. T. Lee.

REVERSED AND REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . “A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.”


text:
    Vern Anthony BLACK, Appellant, v. Kathleen TEEL and Nationwide Insurance Company, Appellees.
    No. 81-277.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    R. David Ayres, Jr. of R. David Ayres, Jr., P. A., Winter Park, for appellant.
    S. Lindsey Holland of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a personal injury suit. Because we find the trial judge erred in directing a verdict for the defendant when there was evidence at trial which could have supported a verdict against the defendant we must reverse the judgment and remand this case for a new trial. Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla.3d DCA 1979); Laird v. Potter, 367 So.2d 642 (Fla.3d DCA), cert. denied, 378 So.2d 347 (Fla.1979); Newsome v. St. Paul Fire and Marine Insurance Co., 350 So.2d 825 (Fla.2d DCA 1977). This decision applies to both reasons given by the trial judge in his order directing a verdict. We find no error in the judge’s order denying the motion in limine regarding the blood alcohol test results.

REVERSED AND REMANDED.

ORFINGER and SHARP, JJ., concur.


text:
    Gary John MEISTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-681.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED. Marshall v. State, 381 So.2d 276 (Fla. 5th DCA 1980); Fitzgerald v. State, 227 So.2d 45 (Fla.3d DCA 1969).

ORFINGER, COBB and SHARP, JJ., concur.


author: COWART, Judge.

text:
    Gael Lynn KING, Appellant, v. Kenneth Michael RODA, Appellee.
    No. 81-860.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    Thomas R. Hess of Ossinsky, Krol & Hess, Daytona Beach, for appellant.
    Ronald A. Nour, Daytona Beach, for ap-pellee.
   COWART, Judge.

The appeal of the trial court’s order denying appellant’s motion to dissolve a temporary injunction and temporary custody order has been considered on its merits, Fla.R. App.P. 9.130(aX3)(B), and is affirmed. The appeal of the trial court’s order denying rehearing as to its order invoking subject matter jurisdiction under section 61.1308, Florida Statutes (1979), and the appeal of the trial court’s order denying appellant’s suggestion of disqualification of the trial judge under section 38.10, Florida Statutes (1979), have both been treated as if each was a petition for prohibition, Fla.R.App.P. 9.040(c), and, as such, are denied.

AFFIRMED in part; DENIED in part.

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


author: COBB, Judge.

text:
    Stuart TAYLOR and Sarah Taylor, his wife, Appellants, v. HARTFORD ACCIDENT AND INDEMNITY CO., a foreign corporation, and Publix Super Markets, Inc., a Florida corporation, Appellees.
    No. 81-1182.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    William H. Roundtree* Cocoa, for appellants.
    Robert C. Barrett of Cooper & Rissman, P. A., Orlando, for appellees.
   ON MOTION TO DISMISS

COBB, Judge.

The appellants, Stuart and Sarah Taylor, were plaintiffs below and suffered a dismissal of their complaint for failure to pay costs taxed against them for a previous voluntary dismissal. The second dismissal was entered on July 25, 1980, and resulted from a “Motion For Dismissal With Prejudice.” The order of dismissal did not state that the cause was dismissed with prejudice, but it did adjudicate that “this cause is hereby dismissed.” It was not simply an order that granted the motion. Therefore, the order was final and appealable. Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980). Just as occurred in the Gries case, more than thirty days elapsed and, thereafter, on September 24, 1980, the trial court entered an amended order allowing plaintiffs fifteen days to pay the delinquent costs, which were then paid. A “final judgment” was then entered on August 19, 1981, and the plaintiffs undertook an appeal, which includes the order of July 25, 1980. The appellees have moved to dismiss on the basis that the appeal is untimely, since the final order of dismissal dated July 25, 1980, was not appealed within thirty days. See Fla.R.App.P. 9.110(b). We agree. See Gries, 388 So.2d at 1283; Napp v. Dieffenderfer, 364 So.2d 534 (Fla. 3d DCA 1978).

Accordingly, this appeal is

DISMISSED.

ORFINGER and SHARP, JJ., concur.


author: JOANOS, Judge.

text:
    Clarissa MAHAFFEY (formerly Clarissa Harper), Appellant, v. William L. HARPER, Appellee.
    No. ZZ-28.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.

      Ralph E. Elliott, Jr., Jacksonville, for appellant.
    Floyd G. Yeager, Jacksonville, for appel-lee.
   JOANOS, Judge.

Appellant appeals an order denying her motion to have appellee adjudged in contempt for his failure to make child support payments and to pay certain medical and dental expenses or, in the alternative, to enforce the “Final Judgment of Divorce” as amended. We affirm in part, reverse in part, and remand for enforcement of the “Final Judgment of Divorce” as amended in accordance with this opinion.

Under the terms of a “Final Judgment of Divorce,” as amended in 1968, appellee was required to pay $100 per month, per child, for the two children of the marriage until such time as each child reached majority, died, married or became self-supporting. Appellant, who was granted custody of the children, was required to use medical or dental facilities of the military services, when available, for the care of the minor children. In turn, the appellee, a career serviceman, was required to pay medical and dental expenses for the children over and above the portion provided by the military services, and, when military facilities were not available, to pay all reasonable medical and dental expenses incurred by the minor children.

We first address the question of medical and dental expenses incurred by the minor children. In the proceeding below, appellee denied responsibility for the expenses incurred, contending that appellant had failed to use available military facilities as required by the amended final judgment. On this factual dispute, the court below found that the appellant had failed to establish by competent evidence that military facilities were not available. Thus, under the terms of the amended final judgment, appellee was not responsible for the claimed expenses. We find no error by the trial judge in this regard and so affirm that portion of the order.

On the issue of child support, it is uncontroverted that appellee ceased paying support as each child reached 18 years of age. It is also clear from the record and appellee’s brief that he did not petition the court in accordance with Section 61.14, Florida Statutes (1980) for a modification of the child support order based on either changed circumstances or the financial abilities of the parties. Rather, appellee simply ceased paying the child support under the theory that the children were no longer minors and, thus, were not entitled to such support. The court below agreed, finding that appellee was not required to pay child support after the children reached 18 years of age. We disagree and so reverse that portion of the order.

The age of disability in Florida was reduced from 21 years to 18 years, effective July 1, 1973, by Chapter 73-21, Laws of Florida. In Finn v. Finn, 312 So.2d 726 (Fla.1975) the court noted that Section 3 of Chapter 73-21 provided that the act was to operate prospectively and included a positive disclaimer of any intent to affect obligations existing prior to July 1, 1973. The court then concluded that a “court order previously rendered would not be modified solely by the statute going into effect.” Id. at 730.

In Crumpton v. Crumpton, 333 So.2d 539 (Fla. 1st DCA 1976), on remand from the Florida Supreme Court for reconsideration in light of Finn v. Finn, supra, this Court receded from its previous holding that the obligation to pay child support ceased when the child in question reached the age of 18 years. See also Gilman v. Dozier, 388 So.2d 294 (Fla. 1st DCA 1980) where this Court approved the statement of law in Burgdorf v. Burgdorf, 372 So.2d 988 (Fla. 2nd DCA 1979) that Section 743.07, Florida Statutes (1973), lowering the age of majority to 18 years, did not affect divorce decrees entered prior to July 1, 1973, when the age of majority was 21 years. Id. at 296.

By this opinion, we are not ruling that child support orders entered prior to July 1, 1973 may not be modified. Nor are we saying that the age of children and their demonstrated need for support are not proper factors to consider in regard to a petition for modification. These factors could be considered in a petition for modification prior to July 1, 1973. The reduced age of majority did not reduce the relevance of these factors. A court receiving a petition for modification under Section 61.-14, Florida Statutes (1980), based on changed circumstances or the financial abilities of the parties, might well consider the age of the children and their attendance of college along with other factors in arriving at its decision. However, in this case there was no such petition. Appellee merely urged that since the children were over the age of eighteen, he was not required to pay child support. The order is AFFIRMED in part, REVERSED in part, and REMANDED with directions to enforce the Final Judgment of Divorce as amended in accordance with this opinion, and with a separate order provisionally granting appellant’s petition for attorney fees.

ERVIN and WENTWORTH, JJ., concur.


text:
    Joseph GARRANTANO, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-129.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

We agree with appellant that an illegal general sentence was entered, Gonzalez v. State, 367 So.2d 1008 (Fla.1979). Appellant’s other point was waived.

The judgment is affirmed and the sentence is vacated. The cause is remanded for resentencing.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    A. A. C. OF MIAMI, INC. and American Casualty Co., Appellants, v. James C. LANIUS, Appellee.
    No. ZZ-362.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.

      H. B. Yandle, Law Offices of Joel R. Teague, Coral Gables, for appellants.
    Ronnie K. Witlin, Miami, for appellee.
   PER CURIAM.

The deputy’s order for the payment of compensation for permanent disability due to loss of wage earning capacity does not satisfy familiar requirements for findings concerning claimant’s work search. E. g., Southeastern Pub. Serv. Co. v. Allen, 395 So.2d 306 (Fla. 1st DCA 1981). There is no substantial competent evidence on which claimant’s work search could be found adequate. The order is REVERSED and the case remanded to award permanent partial disability benefits payable for claimant’s physical impairment rated at 15 percent of the body as a whole.

ROBERT P. SMITH, Jr., C. J., and MILLS and SHIVERS, JJ., concur.


text:
    Mark Allen BIR, Appellant, v. STATE of Florida, Appellee.
    No. AB-470.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Theodore E. Mack, Asst. Public Defender, and Mark Allen Bir, pro se, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Pursuant to his pleas of nolo contendere, appellant was adjudicated guilty of armed robbery and sexual battery. The public defender filed an Anders brief, and in addition, appellant filed a brief raising several points. Upon due consideration of the briefs filed and the record, we find that reversible error has not been shown. However, this affirmance is without prejudice to appellant raising his argument of ineffective assistance of counsel, a point which was not ruled upon by the trial court, by way of a motion for post conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. Williams v. State, 350 So.2d 1140 (Fla. 1st DCA 1977), and Brumbley v. State, 350 So.2d 827 (Fla. 1st DCA 1977).

Finally, it has come to our attention that the judgment and sentence incorrectly recites that appellant pled guilty to the crimes of armed robbery and sexual battery whereas the record reflects that he pled nolo contendere to these charges. Accordingly, we remand the cause to the trial court for correction of the judgment and sentence. Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980).

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Linda Diana DEAL, Appellant, v. STATE of Florida, Appellee.
    No. AC-242.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.

      Nancy A. Daniels, Asst. Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

After due consideration of the Anders brief filed on behalf of Appellant and the record, we affirm the revocation of her probation, but we remand the case for correction of the written revocation order.

The order is ambiguous because it first indicates that Appellant was found guilty of violating conditions I, III, V, and IX but later states she was found not guilty of violating condition V. Further, the order does not state that Appellant was found not guilty of condition IX. Since at the hearing the court only found that Appellant had violated conditions I and III and had not violated conditions V and IX, it should correct the written revocation order to conform to its oral pronouncement. Rusu v. State, 370 So.2d 79 (Fla. 2nd DCA 1979); and Towson v. State, 382 So.2d 870 (Fla. 5th DCA 1980).

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: BOARDMAN, Acting Chief Judge. GRIMES, Judge,

text:
    In re the GUARDIANSHIP OF Lucile K. JANSEN.
    No. 80-2314.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.

      Carleton L. Weidemeyer of Wightman, Weidemeyer & Maynor, H. H. Baskin, Jr., Clearwater, and Jack F. White, Jr., St. Pe-tersburg, for appellant Lucile K. Jansen.
    No appearance for appellees Sun First National Bank of Dunedin, Gregory D. Gra-cy, and Mary Lou Wagstaff.
   BOARDMAN, Acting Chief Judge.

Lucile K. Jansen appeals orders requiring her to pay attorney’s fees to the voluntary guardian of her property, Sun First National Bank of Dunedin (Sun Bank); Sun Bank’s counsel, Gregory D. Gracy; and her guardian ad litem, Mary Lou Wagstaff. We affirm in part and reverse in part.

On February 6, 1979, Mrs. Jansen, then seventy-two years old, filed a petition for voluntary guardianship for reasons of physical infirmity only, requesting that Sun Bank be appointed guardian of her property. This petition was granted immediately in an order describing Mrs. Jansen as “a physically incapacitated person”; no adjudication of incompetence was made, however.

In October 1979, Mrs. Jansen’s sister filed a petition for determination of Mrs. Jansen’s physical and mental competency. The ultimate outcome of this petition, following several examinations and re-examinations of Mrs. Jansen, was the entry on March 5, 1980, of an order finding her to be both mentally and physically competent and dismissing her sister’s petition.

Meanwhile, on December 6, 1979, Sun Bank filed a petition for appointment of a guardian ad litem to represent Mrs. Jansen in a federal court proceeding she had instituted against it. At a hearing held on February 7, 1980, the trial court agreed that due to the conflict between Jansen and Sun Bank, the guardian of her property, posed by the federal suit, a guardian ad litem should be appointed. Three people were recommended by the several counsel present, and Wagstaff was ultimately agreed upon. Counsel for Mrs. Jansen, who were present at this hearing, made no objection to the appointment of a guardian ad litem and expressly stated that Wag-staff was acceptable to them as guardian ad litem.

Accordingly, on February 25, 1980, an order was entered which, inter alia, appointed Wagstaff “to act as guardian ad litem to represent the financial interests of Lucile K. Jansen in that litigation,” “that litigation” being identified in the order as “that certain action styled Lucile K. Jansen v. Honorable Charles W. Burke, Circuit Judge, et al., in the United States District Court for the Middle District of Florida, Tampa Division, numbered 79-119-Civ.T.H.” The oath to faithfully perform her duties as guardian ad litem, taken by Wagstaff on March 12, 1980, also expressly delineates the specific parameters of her appointment.

On March 26, 1980, Sun Bank filed its resignation as guardian of Mrs. Jansen’s property and petition for discharge. On the same date, Mrs. Jansen filed a petition to terminate her voluntary guardianship, relying on the March 5,1980, order finding her competent and alleging that there had never been any need for this guardianship and that she had been improperly influenced to request the guardianship by Sun Bank and her previous attorney.

Inasmuch as Mrs. Jansen had been formally declared to be neither mentally nor physically incompetent not even three weeks prior to the filing of these two petitions, Mrs. Jansen’s voluntary guardianship should have been immediately terminated, thereby sparing her the financial and emotional strain of unnecessary and protracted litigation. However, it was not. Instead, at a hearing on April 9, 1980, called to dispose of the petitions for termination of Sun Bank’s guardianship and other matters relating to payment by Sun Bank of certain bills incurred by Mrs. Jansen, Wagstaff appeared and injected herself into the proceedings over the objection of Mrs. Jansen’s attorney. In addition, she requested clarification from the court concerning her duties as guardian ad litem. In response, notwithstanding its findings of March 5, 1980, the court (Judge William L. Walker) expressed concern as to whether Mrs. Jansen was in fact physically disabled and said that was one thing Wagstaff should look into.

Over the repeated objection of Mrs. Jansen’s attorney that such an inquiry on Wag-staff’s part was beyond the scope of her authority as guardian ad litem and was unnecessarily running up expenses that Mrs. Jansen could ill afford to pay out of her meager assets, which had dwindled to less than $14,000, Wagstaff vigorously pursued her inquiry. She sought discovery of medical records, to which Mrs. Jansen’s attorneys objected on grounds of her right to privacy and confidentiality, and physical examinations to which Mrs. Jansen also objected. Six more months of extensive (and expensive) litigation ensued.

Hearing on the petitions for termination of the voluntary guardianship was finally held by a different judge on October 1, 1980. At that hearing, Wagstaff recommended against termination. Her sole basis for this recommendation was the fact that Mrs. Jansen has epilepsy and would not be able to care for herself if she had a grand mal seizure, which she has had in the past. Notwithstanding Wagstaff’s recommendation, the voluntary guardianship was terminated in an order entered October 17, 1980, the court retaining jurisdiction to award fees to Sun Bank, Sun Bank’s attorney, and/or Wagstaff.

Fees were, of course, sought by all concerned. Mrs. Jansen objected to an award of fees to Wagstaff for any activities other than those related to the federal litigation, which appear to account for no more than ten per cent of the total time expended by Wagstaff. However, the trial court refused to so limit Wagstaff’s fee entitlement.

Nevertheless, the trial court did take Mrs. Jansen’s limited assets into account in awarding fees, awarding to all petitioners far less than the court considered the value of their services to be. In separate orders, the court awarded Sun Bank, Gracy, and Wagstaff each $1500. Mrs. Jansen appeals all three of these fee awards.

Mrs. Jansen first contends that the trial court did not have jurisdiction to award any fees because the March 5, 1980, order declaring her competent was a final order, and it did not reserve jurisdiction to award any fees. This description of the March 5, 1980, order is accurate, but that order was dispositive only of Mrs. Jansen’s sister’s petition to have her declared incompetent; it in no way pertained to termination of Mrs. Jansen’s voluntary guardianship, which had not yet been requested. The October 17, 1980, order, which did terminate the voluntary guardianship, did reserve jurisdiction to award fees, and we see no basis for reversal of the orders awarding fees to Sun Bank and Gracy.

Wagstaff’s fee award, however, is another matter. Wagstaff was clearly and expressly authorized to represent Mrs. Jansen’s financial interests in the federal litigation; i. e., the scope of her authority was expressly limited. This was properly done in accordance with Section 744.391, Florida Statutes (1979), which provides in pertinent part: “If an action is brought by the guardian against the ward, or vice versa, or if the interest of the guardian is adverse to that of his ward, a guardian ad litem shall be appointed to represent the ward in that particular litigation.” (Emphasis added.) The appointment was also in accordance with section 744.102(2), which defines “guardian ad litem” as follows: “A ‘guardian ad litem’ is one appointed by a court in which particular litigation is pending to represent a ward in that litigation.” (Emphasis added.)

We agree that the statutes give little guidance as to precisely what duties a guardian ad litem has. Nevertheless, we think the statutes and the order appointing Wagstaff guardian ad litem clearly limit her duties and authority; and we believe it is equally clear that Wagstaff’s investigation of Mrs. Jansen’s physical competency for purposes of advising the state court as to the advisability of terminating a voluntary guardianship, termination of which was sought by both ward (who was represented by able counsel of her own choosing) and guardian, when the ward had not only never been adjudicated incompetent but had very recently been adjudged competent, was beyond the scope of her authority.

A guardian’s fee must be reasonable, § 744.108, and legal services, in order to be compensated for, must have been rendered “to the ward, or to the guardian in the ward’s behalf.” § 744.424; Lucom v. Atlantic National Bank, 97 So.2d 478 (Fla.1957). We fail to see how Wagstaff’s activities in the state court concerning this ease can by any stretch of the imagination be considered to have benefitted Mrs. Jansen. Indeed, they have clearly economically injured her by further dissipating her estate to pay additional fees to Sun Bank for administration of her estate while termination of its guardianship was unjustifiably delayed and to Gracy for his attendance at several hearings during the period of delay which should not have been necessary. Moreover, these activities cannot be said to have been done on Mrs. Jansen’s behalf where Mrs. Jansen, who was legally competent to handle her own affairs, and her personally chosen counsel strenuously opposed Wagstaff’s efforts every step of the way. Compensation to a guardian who has seriously breached his or her duty is not justified. American Surety Co. v. Hayden, 112 Fla. 17, 150 So. 114 (1933); see Poling v. City Bank & Trust Co., 167 So.2d 52 (Fla.2d DCA 1964).

Accordingly, we hold that appellee Wag-staff is not entitled to a fee for any of her activities in connection with her investigation of Mrs. Jansen’s physical condition. She is entitled to a fee only for her activities in connection with the federal suit involving Mrs. Jansen and Sun Bank, since those were the only activities within the scope of her appointment as guardian ad litem to Mrs. Jansen.

Accordingly, the orders awarding fees to Sun Bank and Gracy are affirmed, but the portion of the order of November 21, 1980, awarding Wagstaff a fee for her services as guardian ad litem is reversed and the cause remanded for further adversary hearing for determination of the nature and extent of Wagstaff’s services in connection with the federal litigation and award of an appropriate fee for those services.

AFFIRMED in part, REVERSED in part, and REMANDED.

OTT, J., concurs.

GRIMES, J., concurs specially.

GRIMES, Judge,

concurring specially.

I concur in all aspects of the opinion except for any implication that Ms. Wag-staff may have breached her fiduciary obligations.

I regret that we do not have the benefit of a brief on behalf of Ms. Wagstaff which might explain why she believed that contesting the termination of the voluntary guardianship was within the scope of her duties as guardian ad litem. I am satisfied that she was not trying to run up her fee because it was evident that Mrs. Jansen’s assets were never going to be enough to justify an award commensurate with the reasonable value of her services.

      . From October 1979 on Mrs. Jansen has employed attorneys H. H. Baskin, Jr., and Jack F. White, Jr., as her legal counsel.

      . Wagstaff knew nothing of any of this until she was formally appointed guardian ad litem. She neither volunteered for nor solicited this appointment.

      . Wagstaff seems to have overlooked the fact that Mrs. Jansen’s epilepsy has been controlled with appropriate medication for over thirty years. Only when a physician without knowledge of her epileptic condition took her off this medication did she suffer the recent seizures which gave rise to Wagstaff s concern.


author: CAMPBELL, Judge.

text:
    Charles MAGGIO, Appellant, v. Judith A. MAGGIO, Appellee.
    No. 81-296.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    John R. Newcomer, Jr., of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P. A., Tampa, for appellant.
    Joseph F. McDermott, St. Petersburg, for appellee.
   CAMPBELL, Judge.

Charles Maggio appeals from the final judgment of dissolution which awarded his former wife special equity in property no longer owned by either of the parties.

Prior to this marriage, Mrs. Maggio owned a home in Florida which she subsequently sold; the proceeds were used both to purchase a car for the husband and to help pay off a loan obtained by the husband to apply to the purchase of a New Jersey home. At the dissolution hearing, the trial judge determined that Mrs. Maggio was entitled to special equity in the following:

4. The Wife shall be awarded the following special equities:

A. $6,000.00 representing one-half of her cash contribution ($12,000.00) to the marriage, used to purchase the Husband’s car and pay the Husband’s accountant.
D. $7,000.00 representing one-half of the excess proceeds of the sale ($14,-000.00) of the jointly held New Jersey marital domicile which the Husband placed in a separate account and was used in the purchase of the Brown Derby [a restaurant].

Special equity is a vested interest which a spouse acquires because of contribution of funds, property or services made over and above the performance of normal marital duties. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The trial court may award a special equity when those ownership rights are reasonably ascertainable. Lawless v. Lawless, 362 So.2d 302 (Fla. 2d DCA 1978). However, it is error for the trial judge to award a special equity without specifying the res in which it vests. Veiner v. Veiner, 364 So.2d 834 (Fla. 3d DCA 1978).

The $6,000 and $7,000 special equities awarded here cannot be upheld because the final judgment does not award those special equities in a specified res, or a specific fund. Though the final judgment states that “the Wife shall be entitled to a lien in said amount to secure payment against the Brown Derby,” that is not sufficient to comply with the finding of a special equity in a particular res. In addition, the lien language of the judgment is too ambiguous to be enforceable against the husband. The final judgment finds the wife entitled to a special equity in four separate and distinct amounts without specifying a total and yet the lien language awards a lien “in said amount.”

Inasmuch as we find the special equities of $6,000 and $7,000 improper, we reverse the final judgment and remand to the trial court. Because our finding of error in the two specified special equities may be disruptive to the trial court’s plan of doing equity between the parties, upon remand, the trial judge may rehear and reconsider the equities and the parties’ needs and abilities to pay to insure a proper judgment is entered. In doing so, upon a proper showing and finding, a distribution of these same sums could be effected through the use of lump sum alimony.

REVERSED and REMANDED for treatment consistent with this opinion.

HOBSON, A. C. J., and OTT, J., concur.


text:
    Warren Edward HULL, Appellant, v. STATE of Florida, Appellee.
    No. 81-881.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence. However, we remand for clarification of the order relating to the trial judge’s statement that he retain jurisdiction for armed robbery, inasmuch he did not state with individual particularity the basis for retaining such jurisdiction as required by section 947.-16(3), Florida Statutes (1979).

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