text:
    TITAN ATLANTIC CONSTRUCTION COMPANY, Appellant, v. QUALITY ELECTRIC SERVICE, INC., Appellee.
    No. ZZ-385.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.

      John M. Fite of Barron, Redding, Boggs, Hughes & Fite, P. A., Panama City, for appellant.
    Robert B. Staats, P. A., Panama City, for appellee.
   PER CURIAM.

This cause is before us on appeal by Titan Atlantic Construction Company from a final summary judgment entered against it on the ground that a previously executed Mutual Release Agreement barred its present action against Quality Electric Service, Inc. for conversion. We reverse.

The complaint alleged that Quality was subcontracted by Titan to perform electrical work on a 600 unit family housing project, which Titan was under contract to construct for the United States Navy Department. The complaint further alleged that a dispute had arisen between the United States Department of Labor and Quality concerning Quality’s failure to comply with the federal wage and hour law. Funds payable to Titan on its general contract with the Navy were retained by the Navy in order to cover the alleged back wage liability of Quality. On September 20,1979, Quality satisfied that liability by paying $24,315.32 to the Department of Labor. The Department of Labor then informed the Navy to release the retained funds to Titan. On October 30, 1979, the Navy released the funds to Quality, who thereafter, despite numerous demands, refused to return same to Titan, the rightful owner.

In its answer, Quality alleged as its second and fourth defenses that Titan was either estopped or barred from asserting its present claim against Quality because Titan failed to include that claim as a compulsory counter-claim in a previous suit between the parties and/or because the present claim was released by a mutual release agreement previously executed by the parties on October 16, 1979. A copy of that agreement was made a part of the pleadings.

The prefatory language of the Mutual Release Agreement sets forth Quality’s claim against Titan for monies allegedly owed for work performed and labor provided and Titan’s counter-claim against Quality for damages caused by alleged breaches of contract. It was also noted that Titan had made claims for payment from the Navy and that said claims involved work performed by Quality. The Agreement then reads, in pertinent part, as follows:

NOW THEREFORE, the parties to this agreement, for and in consideration of the following, wish to settle the disputes and differences described above, as well as any other disputes and differences, which have arisen or may arise, between Quality and Titan and between Quality and Safeco arising out of or related to the construction of the Naval housing project at Mayport/Cecil/Jacksonville, Florida, and accordingly the parties agree to the following:
1. In consideration of the mutual relinquishment of their respective legal rights with reference to the above-mentioned disputes and differences, in consideration of the execution of this mutual release, and in consideration of the immediate payment by Titan, for itself and on behalf of Safeco, by certified check in the amount of $144,251.26 issued jointly to Quality and Trotter, Bondurant, Griffin, Miller & Hishon, Quality, for itself and its legal representatives, successors and assigns, expressly releases Titan, individually, Safeco, individually, and the owner, the United States of America Naval Facilities Engineering Command, individually, and their legal representatives, successors, and assigns from all liability from claims and demands arising out of or relating to the construction of the Naval Housing project at Mayport/Ce-cil Field/Jacksonville, Florida, and Titan and Safeco, for themselves and their legal representatives, successors and assigns expressly release Quality and its legal representatives, successors and assigns from all liability from claims and demands arising out of or relating to the construction of the Naval Housing project at Mayport/Cecil Field/Jacksonville, Florida.

On the basis of that document, Quality moved for summary judgment. Attached to that motion was the sworn affidavit of B. D. Blackman, President of Quality Electric, who alleged, in part, that Quality paid, under protest, the amount of $24,315.32 to the Department of Labor in order to resolve its wage dispute with the Department and to facilitate final payment under the subcontract. The affiant further alleged that at the time the parties executed the Mutual Release Agreement, Titan had knowledge of the unresolved status of Quality’s wage dispute with the Department. The affiant therefore contended that under the general terms of the Mutual Release Agreement, Titan surrendered any claims which it may have had to the $24,315.32.

Robert Kleiner, Vice President and corporate counsel for Titan Atlantic Construction Company, averred, in part, that the release of any claim involving the wage dispute was not within the contemplation of the parties when the Mutual Release Agreement was executed because it was believed that said dispute had already been settled by Quality’s payment of funds to the Department and the Department’s letter to the Navy advising it to release the retained funds to Titan. The affiant further averred that at the time the agreement was executed, Titan had no suspicion that Quality would thereafter be paid the retained funds which rightfully belonged to Titan.

The court granted Quality’s motion for summary judgment on the ground that the terms of the Mutual Release were such as to bar Titan’s claim against Quality for conversion of funds. We conclude, however, that the terms of the agreement are sufficiently unclear and ambiguous so as to create a genuine issue of material fact respecting the correct interpretation of the scope of the contract. Summary judgment is, therefore, precluded. Griffin Builder’s Supply, Inc. v. Jones, 384 So.2d 265 (Fla. 2nd DCA 1980).

Accordingly, the summary judgment is REVERSED, and the cause REMANDED for further proceedings.

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


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Willie James JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AB-65.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.

      Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

The appellant contends in part that his sentencing by a substitute judge was improper in the absence of any showing of necessity therefor, and that he was improperly adjudicated guilty of twc counts of aggravated assault. We agree that the trial judge erred in these respects and reverse.

Appellant was tried by Judge Wayne M. Carlisle on an information charging one count of attempted robbery, one count of aggravated assault, one count of aggravated battery, one count of burglary, and one count of possession of a firearm by a convicted felon. He was sentenced by Judge R. A. Green, Jr., on one count of attempted robbery, two counts of aggravated battery, and one count of possession of a firearm by a convicted felon.

There is merit in appellant’s contention that he was improperly sentenced by Judge Green instead of by Judge Carlisle, who conducted the trial. The record reflects no unusual or exigent circumstances necessitating sentencing by anyone other than the trial judge. Accordingly, we reverse and remand for resentencing under the guidelines set forth in Lawley v. State, 377 So.2d 824 (Fla. 1st DCA 1979). The court also improperly sentenced the appellant on two counts of aggravated battery instead of one count of aggravated assault and one count of aggravated battery. At resentencing, the trial judge should correct these errors in the judgment and sentence and should determine how much, if any, credit the appellant should receive for jail time served prior to sentencing.

It is also contended that the trial judge erred in respect to certain evidentiary rulings and in finding that the aggravated assault and aggravated battery committed by the appellant were not category IV lesser included offenses of the attempted robbery. Although proof of an assault is a necessary element of proof of the attempted robbery charge, the appellant in this case was guilty of two additional separate and distinct assaults against the victim and his wife. These additional distinct assaults are a proper basis for the aggravated assault and aggravated battery convictions and sentences and do not, under the circumstances of this case, constitute lesser included offenses of the attempted robbery. We find no error in the evidentiary rulings of the trial court.

Affirmed in part, and reversed and remanded with instructions.

MILLS and WENTWORTH, JJ., concur.


author: PER CURIAM,

text:
    FLORIDA ROCK INDUSTRIES, INC. and Underwriters Adjusting Co., Appellants, v. Joan B. BEACH, Appellee.
    No. AD-85.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Ronald S. Webster, of Whittaker, Pyle, Stum & Webster, Orlando, for appellants.
    Ronald H. Watson, of Merritt & Watson, P. A., Eustis, for appellee.
   PER CURIAM,

The deputy erred in awarding workers’ compensation disability benefits based on physical impairment to the body as a whole under section 440.15(3)(u), Florida Statutes (1978 Supp.), because there is no substantial competent evidence of any permanent injury to any unscheduled part of the body. Accordingly, the deputy’s award must be limited to the scheduled benefits under section 440.15(3)(s) for lost use of a leg, based on the highest impairment rating testified to by any physician, 7 percent of the left leg. Baird-Ray Datsun v. Butler, 400 So.2d 1038 (Fla. 1st DCA 1981); section 440.25(3)(b), Fla.Stat. (1978 Supp.).

Claimant’s average weekly wage also was erroneously calculated on the basis of claimant’s 1978 annual income reported to the federal government and unreported earnings. Because claimant worked “substantially the whole” of the 13-week period preceding her injury, her average wage should be one-thirteenth of the wages she actually earned during this period. Section 440.14(1), Fla.Stat. (1977).

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    Millard WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. AF-36.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appealed order denying appellant’s motion to correct an illegal sentence is reversed and remanded to the lower court with directions to grant appellant’s motion and resentenee appellant as a youthful offender under Section 958.05, Florida Statr utes (1979) as mandated by the Florida Supreme Court in State v. Goodson, 403 So.2d 1337 (Fla.1981).

REVERSED and REMANDED.

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Marcus HOLMES, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-33.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Marcus Holmes, pro se.
    No response by appellee,
   PER CURIAM.

The petition for writ of mandamus has been treated as an appeal from an administrative order. The action of the Florida Parole and Probation Commission in this case is affirmed.

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    John William MORRIS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.
    No. AI-225.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.

      John William Morris, pro se.
    No response for respondent.
   PER CURIAM.

Petitioner alleges that his gain time has been improperly calculated, in violation of Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). However, he has not shown that he has exhausted his administrative remedies and timely filed for review of final agency action in this Court, pursuant to § 120.68(1), Fla.Stat. (1979). Rule 33-3.07, Fla.Admin.Code, dictates a two-step review process within the Department of Corrections, prior to judicial review of the order of the Secretary or his representative. This Court has no jurisdiction over petitioner’s case because he fails to show that he filed this petition within 30 days of the Secretary’s response to an inmate grievance appeal. See Fla.R.App.P. 9.110. This Court stated in Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA, 1981), that “[i]f the date of final agency action is included in a petition and if that date is within 30 days of the filing of the petition, this Court can treat the petition as a notice of appeal, see Fla.R.App.P. 9.040(c), and ultimately consider the cause on its merits.”

We hold that the above rule applies to inmate grievances against the Department of Corrections. Accordingly, the petition for writ of mandamus is denied for failure to allege and show exhaustion of administrative remedies.

JOANOS, BOOTH and SHIVERS, JJ., concur.


author: PER CURIAM. BASKIN, Judge

text:
    Mercedes DUVALLON, Appellant, v. Rolando DUVALLON, Appellee.
    Nos. 80-2240, 80-2241.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Mercedes Duvallon, in pro. per.

      James C. Burke, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Appellant, respondent below, appeals an order of the trial court of Dade County denying her motion to vacate an order of injunction. Appellant also appeals an order of the court adjudicating her guilty of willful and intentional contempt and sentencing her to serve a term of thirty days in jail. The appeals have been consolidated for appellate purposes.

Appellant urges reversal on the following grounds. First, the trial court erred in denying her motion to vacate the orders appealed. Second, the court erred in adjudicating her guilty of willful and intentional contempt when the rules of criminal procedure had not been complied with by the petition and the petitioner. Finally, appellant contends that the evidence was insufficient to support the orders appealed.

Wide discretion rests in the trial court in granting, denying, or modifying injunctions. An appellate court will not interfere with the exercise of this discretion unless some abuse thereof is clearly made to appear, or unless the trial court’s ruling is clearly improper. A presumption exists as to the correctness of the ruling of the trial court, and the burden is on the appellant to make error appear.

We have carefully considered appellant’s points on appeal in the light of the record, briefs and arguments of appellant (in person) and counsel for appellee, and we have concluded that no reversible error has been demonstrated. Therefore the orders appealed are affirmed.

Affirmed.

BASKIN, Judge

(concurring in part, dissenting in part).

I concur in the majority opinion insofar as it denies appellant’s motion to vacate the injunction. With regard to the adjudication of contempt, however, I must dissent. I would reverse the Order because appellant was sentenced for indirect criminal contempt, Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977), and was entitled to due process of law, including those matters enunciated in Florida Rule of Criminal Procedure 3.840(a). The order lacks a recital of facts constituting the contempt of which appellant was found guilty and was entered without affording appellant an opportunity to present matters in mitigation. While I recognize that appellant’s repeated appearances before the court may have suggested these requirements were somewhat superfluous, I nevertheless believe appellant should have been afforded the letter of the law. I would therefore reverse the Order of Contempt.


author: SCHWARTZ, Judge.

text:
    Willie LEE, Appellant, v. RISK MANAGEMENT, INC., Appellee.
    No. 81-519.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.

      Hawkesworth & Schmick and J. Arthur Hawkesworth, Jr., Miami, for appellant.
    Miller, Hodges & Kagan and H. Jack Miller, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

The plaintiff Willie Lee appeals from an order which determined the amount of a workers’ compensation lien under Section 440.39(3)(a), Fla.Stat. (1979). Lee was injured in an on-the-job accident as a result of which he has been paid and will receive future compensation benefits from his employer’s carrier, the appellee Risk Management, Inc. He also sued a negligent third party for the injuries and recovered a jury verdict of $120,000, as reduced from $150,-000 because of a finding of 20% comparative negligence. In the order now before us, the trial court similarly reduced the carrier’s lien on that judgment to 80% of the benefits — subject to a cap of the plaintiff’s net of $57,436.45, representing the total recovery less $62,563.55 in attorney’s fees and costs. We affirm.

Addressing the appellant’s primary contentions, we first find no error in the failure to allocate the attorneys’ fees and costs of the third party action between the plaintiff and the carrier. In sharp and significant contrast to previous versions of Sec. 440.39(3)(a), which specifically so stated, there is nothing in the present statute which provides for such an apportionment. To the contrary, by amending the apportionment requirements out of existence, see 30 Fla.Jur. Statutes § 142 (1974), and by instead stating only that the lien is to be based upon the amount of the “judgment after attorney’s fees and costs ... have been deducted [emphasis supplied]” — in other words, taken off the top as the trial court did below — the legislature has clearly evinced its intention that the burden of these charges is now to be placed on the plaintiff, and conversely that the carrier’s reimbursement is not to be diminished by any share of those expenses. In Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 100 S.Ct. 925, 63 L.Ed.2d 215 (1980), the Supreme Court came to the same conclusion under the Longshoremen’s and Harbor Workers’ Compensation Act, because of statutory language and a legislative history similar to Florida’s. With great force and persuasiveness, the appellant claims that the result is unwise and unjust. We do not say because it does not matter if we agree with these views. Only the legislature has authority in this field. It has made its policy decision and that conclusion must and will be followed.

Lee’s challenge to the pro rata award of 80% of the benefits is similarly without merit. Assuming arguendo that the trial court may exercise any discretion at all on the matter under the new statute, there has been no showing that it was an abuse of that discretion to reduce the recovery of benefits by the exact extent to which Lee’s full recovery was itself diminished. United States Fidelity & Guaranty Co. v. Harb, 170 So.2d 54, 56 (Fla.3d DCA 1964), and cases cited; see, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The appellant’s remaining contentions have been examined and do not present error.

Affirmed.

      . (3)(a) In all claims or actions at law against a third-party tortfeasor, the employee, or his dependents or those entitled by law to sue in the event he is deceased, shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid, and such suit may be brought in the name of the employee, or his dependents or those entitled by law to sue in the event he is deceased, as plaintiff or, at the option of such plaintiff, may be brought in the name of such plaintiff and for the use and benefit of the employer or insurance carrier, as the case may be. Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party.... [emphasis supplied]
      The emphasized portion is an addition to and amendment of the previous statute, Sec. 440.-39(3)(a) (1975), which stated in this respect:

        The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility, [emphasis supplied]

      . 1. The Court finds, in accord with the Special Jury verdict, the full value of Plaintiffs third party claim against the Defendant herein was in the amount of $150,000.00, reduced by comparative negligence to the amount of $120,000.00, or a reduction of 20% from full value because of comparative negligence.
      2. The compensation claim herein is reduced in the same ratio by the factor of comparative negligence, that is to say, reduced by 20%.
      3. The total lien is, therefore, 80% of benefits paid by the employer, through its service office, and the same amount as to those to be paid in the future. The attorney’s fees and costs incurred by the Plaintiff/employee, are in the amount of $62,563.55, leaving a net recovery by the plaintiff in the amount of $57,436.45. Considering all the evidence presented and argument, the compensation service office will probably be called upon to pay compensation benefits and medical care to the claimant in the future, and therefore, future reimbursement figures would change from time to time in accordance with the continuing payments.
      4. Based on the evidence presented at the January 12, 1981 hearing, I find the amount of past medical and disability benefits paid was in the amount of $19,799.18, and consequently the value of the lien as of that date was $15,839.34, which sum the Plaintiff, through his attorney, is ordered to reimburse, directly to Risk Management Services, Inc.
      5. Future payments which may be paid are unliquidated. Rather than escrow the monies which are now due the Plaintiff out of his third party recovery, the Court finds the most equitable schedule for distribution of future reimbursement payments would be to reduce any future workers’ compensation benefits which may be paid by Risk Management Services, Inc., to, or on behalf of the Plaintiff, on account of his injuries by 80% of each such payment. And it is therefore ordered accordingly. The alternative would require the retention of the net proceeds of the Plaintiff in an escrow account for reimbursement of the lien as compensation benefits are made in the future, and at best such determination would be speculative.
      6. The Lien herein is limited by the net proceeds of the Plaintiff in the third party action and can never exceed $57,436.45. Should Risk Management Services, Inc., be required by the Workers’ Compensation Act to pay future benefits to the extent that their lien becomes equal to the net proceeds of the Plaintiff, there is to be no further reduction or offset.

      . See Sec. 440.39(3), Fla.Stat. (1953) (lien subject to carrier’s pro rata share of plaintiffs “court costs ... including attorney’s fees”); Sec. 440.39(3)(a), Fla.Stat. (1961) (same).

      . We note also that, in discussing the previous “50% statute” in Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla.2d DCA 1977), the court stated at p. 548, n. 1:
      The new statute apparently envisions an employee will be able to sustain his attorney’s fee and costs incurred in an action against a third party tortfeasor from the 50% of the proceeds he is permitted to retain.
      In this light, the increase of the carrier’s entitlement to 100% can be regarded only as a requirement that the fees and costs be taken from the amounts recovered by the employee— as for pain and suffering — in excess of those for which also he recovered compensation benefits.

      . We need and do not determine whether the trial court is precluded from reducing a lien beyond the extent that full recovery is limited by uncollectibility or comparative negligence or whether, if either is shown to any degree, “all bets are off’ and the court may then make an “equitable distribution” of the proceeds. The fact that the latter was the rule under the “50% statute,” Fireman’s Ins. Co. of Newark v. Phillips, 368 So.2d 98 (Fla.3d DCA 1979); National Ben Franklin Ins. Co. v. Hall, 340 So.2d 1269 (Fla.4th DCA 1976), may not be determinative since the present provision is significantly different both in letter and spirit.


text:
    FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. Ada ROJAS, Appellee.
    No. 81-656.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellant.
    Carlos B. Fernandez, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The sole issue presented by this appeal focuses on when the statute of limitations begins to run on an insurer’s indemnity claim against a motorist whose negligence resulted in damage to its insured. We hold that an insurer’s indemnity claim accrues and the statute of limitations begins to run when the indemnity liability is satisfied.

On July 16, 1975, Marcelino Perez and members of his family were involved in an automobile accident with the appellee Ada Rojas. Appellant Fireman’s Fund, Perez’s insurer, paid over $15,000 in personal injury protection benefits, uninsured motorist benefits, and property damage benefits to the Perezes on June 29, 1976. On July 17, 1979, Fireman’s filed this suit against Rojas seeking recovery of the monies paid. Following discovery, the court below entered judgment on the pleadings for Rojas on the basis that appellant’s complaint was barred by the statute of limitations because suit was not instituted within four years from the date of the injuries.

Appellant contends that in an indemnification action, the statute of limitations begins to run on the date of payment by the party seeking indemnification, rather than the date of injury. We agree and reverse.

As a general rule, an insurer which has paid its insured’s claim or loss becomes subrogated to the insured’s cause of action against the tortfeasor, and may file suit to recover the amount paid. Holyoke Mutual Insurance Co. v. Concrete Equipment, Inc., 394 So.2d 193 (Fla.3d DCA), pet. for rev. denied, 402 So.2d 609 (Fla.1981). Prior to the time the insurer has settled, or been held liable on its insured’s claim, the insurer has no cause of action for subrogation against the alleged tortfeasor. Quinones v. Florida Farm Bureau Mutual Insurance Co., 366 So.2d 854 (Fla.3d DCA), cert. denied, 376 So.2d 71 (Fla.1979).

Appellee’s reliance upon Carter v. Cross, 373 So.2d 81 (Fla.3d DCA 1979) for her contention that any cause of action arising from the accident must accrue from the date of the accident is misplaced. Carter held only that an action for personal injury accrues and the statute of limitation begins to run against the injured party from the time the injury was first inflicted, not from the time the full extent of such injuries has been ascertained. The Carter opinion did not decide when the statute of limitations begins to run on an insurer’s indemnity claim, the controlling issue sub judice.

Common sense dictates that the statute of limitations cannot begin to run on a cause of action before the right to bring such action exists. Precluded by Quinones, supra, from bringing an action for indemnification prior to satisfying its insured’s claim, appellant made its last payment of benefits to Perez in June, 1976 and filed this action in July, 1979, clearly within the four year limitations period. See Employers’ Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177 (Fla.1976) (suit by insurer for indemnification arose only when payment or other satisfaction was made on judgment or debt, and since the date of commencement of the action was within the appropriate limitations period, action not barred by the statute of limitations); Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.2d DCA), cert. denied, 234 So.2d 122 (Fla.1969) (cause of action for indemnity predicated on breach of warranty does not accrue until litigation against third party plaintiff has ended or liability, if any, has been settled or discharged by payment).

Accordingly, the judgment under review is reversed and the cause is remanded to the trial court with instructions to reinstate the complaint.

Reversed and remanded.

      . Uninsured motorist benefits were paid because Rojas was denied liability coverage by her carrier, Fidelity & Casualty Company of New York. See Fidelity & Casualty Co. of New York v. Fonseca, 358 So.2d 569 (Fla.3d DCA), cert. denied, 365 So.2d 711 (Fla.1978).

      . The parties and the court below agree that a four year statute of limitations governs this litigation although disagreement exists as to precisely which paragraph of Sec. 95.11(3), Fla. Stat. is applicable. Since each of the provisions under subsection (3) defines a four year limitation period, the distinction is not crucial.

      . Since appellant’s indemnification claim was filed within the four year period, we do not decide what effect, if any, Sec. 627.736(3)(d), . Fla.Stat. (1975) has on this litigation. Sec. 627.736(3)(d), (repealed for all intents and purposes by Ch. 76-266, § 4, Laws of Fla., effective October 1, 1976) created an indemnification action separate and distinct from that which ordinarily derives from the contract of insurance. Under the terms of this statute, the insurer is precluded from filing suit for indemnification until one year and thirty days after the final payment of benefits to its insured. Thus, whether this section would or would not toll the existing four year limitations period, the outcome here is the same.


text:
    Jerry West GRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 81-787.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and JOR-GENSON, JJ.
   PER CURIAM.

The judgment below is affirmed without prejudice to the filing of a Fla.R.Crim.P. 3.850 motion to credit the defendant with time previously served in jail as a condition of the probation which was revoked in the present proceeding and while awaiting disposition of the probation violation charge. Since the record is uncertain as to whether full allowance for these periods has already been given, the issue should be initially addressed as a factual matter in the trial court. Clinton v. State, 389 So.2d 1082 (Fla.3d DCA 1980).


text:
    Dorothy Martucci CLARK, Appellant, v. Dudley C. CLARK, Appellee.
    No. 81-834.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Edward C. Yining, Jr. and Richard A. Burt, Miami, for appellant.
    Genet & Milner and Sandor F. Genet, North Miami Beach, for appellee.
    Before NESBITT and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Vincent Michael DOYLE and Daniel Jeffrey Vaughan, Appellees.
    No. 81-859.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.

      Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellant.
    Philip Carlton, Jr. and Thomas Wills, Miami, for appellees.
    Before NESBITT and DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

We concur in the trial court’s conclusion that the stop and consequent search of the 26-foot formula boat occupied by the defendants, Doyle and Vaughan, were unlawful. The trial court found that the only reason the United States Customs Officer stopped the vessel was to search for contraband and that he did not stop the vessel for any purpose authorized by Title 19, United States Code, Section 1581(a) (1980). This finding, amply supported by the testimony, precludes the State from relying upon the statute and makes it unnecessary for us to attempt to resolve from the imprecise record whether the stop occurred inside or outside the coastline of the United States.

Our inquiry instead is confined to whether the stop was otherwise justified because supported by evidence that the vessel occupied by the defendants had crossed the border, or evidence giving rise to a reasonable suspicion that the defendants were engaged in illegal activity, see State v. Zafra, 408 So.2d 745 (Fla.3d DCA 1982); Morales v. State, 407 So.2d 321 (Fla.3d DCA 1981). The State concedes, as it must, that there is not a scintilla of evidence indicating a border crossing. It does not concede, but it should, that the Customs Officer’s observation of “two males aboard a 26 foot boat coming in at 3:00 o’clock in the morning” falls well short of the reasonable suspicion required for a lawful stop. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Villamonte-Marquez, 652 F.2d 481 (5th Cir. 1981).

Despite our agreement with the trial court that the stop and search of the vessel occupied by the defendants were unlawful, we cannot affirm its suppression order. The State correctly points out that, apart from the fact that Doyle and Vaughan were the only persons on board the searched vessel, no evidence was adduced that either or both had any reasonable expectation of privacy which was invaded by the search. This challenge to the defendants’ standing to complain of the search, although first made here, must be considered by us. Morales v. State, supra; see Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972); State v. Hutchinson, 404 So.2d 361 (Fla.2d DCA 1981); St. John v. State, 400 So.2d 779 (Fla. 1st DCA 1981); Coster v. State, 392 So.2d 16 (Fla.3d DCA 1981). But as we said in Morales:

“Although the challenge does not come too late, we are precluded by law from deciding the issue in the state’s favor without first remanding the cause to the trial court for the purpose of developing a complete record on the standing issue— the theory being that the issue was not fully litigated below, absent a proper state challenge, and that the defendants may have standing evidence which they were lulled into not presenting below and could present upon remand.” 407 So.2d at 326 (footnote omitted).

Accordingly, we reverse the order suppressing the seized evidence and remand the cause to the trial court to conduct a hearing in which Doyle and Vaughan will have the opportunity to establish that the unlawful search invaded a reasonable expectation of privacy of either or both of them.

Reversed and remanded with directions.

      . Title 19 U.S.C. § 1581(a) provides, in pertinent part:
      “Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters ... and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle and use all necessary force to compel compliance.”
      Despite its broad language, the statute has been construed to authorize a stop and boarding for the limited administrative purposes of routine documentation and safety checks, not general searches. Morales v. State, 407 So.2d 321 (Fla.3d DCA 1981), and cases cited therein.

      . Jordan, the Customs Officer, accompanied by two agents of the Drug Enforcement Administration, was on patrol at 3:00 a. m. in an unmarked boat. He unequivocally testified that his full intention in stopping the vessel was to “see if there was any contraband they might have” and that his “only interest was to get inside the cabin and see if there was any marijuana or other contraband in there.”

      .If the stop had been based on Section 1581, then it would not have been authorized if made inside the United States coastline, Morales v. State, supra; United States v. Villamonte-Marquez, 652 F.2d 481 (5th Cir. 1981); United States v. Guillen-Linares, 643 F.2d 1054, 1056 (5th Cir. 1981); United States v. D’Antignac, 628 F.2d 428, 433 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Serrano, 607 F.2d 1145, 1147-48 (5th Cir. 1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980), unless the vessel was initially seen in Customs waters, United States v. Alfrey, 620 F.2d 551 (5th Cir.), cert. denied, 449 U.S. 938, 101 S.Ct. 337, 66 L.Ed.2d 160 (1980).

      . The Officer testified that these innocuous activities fit his “own personal profile” for illegal activity. Such a self-fulfilling prophecy is nothing more or less than a hunch which is hardly sufficient for a stop. His observation, after the vessel stopped at his command, that the bow of the vessel went down, even if a suspicious circumstance, but see Romanello v. State, 365 So.2d 220 (Fla. 4th DCA 1978), and his detection of the smell of marijuana derive from and are tainted by the stop, Cacace v. State, 379 So.2d 1306 (Fla. 4th DCA 1980); Romanello v. State, supra.

      . The trial court’s suppression order refers to the stopped vessel as “the defendants’ vessel.” There is simply no evidence to support that conclusion.


text:
    Eugenio R. CASTANEDA, Appellant, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, Appellee.
    No. 81-904.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.

      Lewison, Rayvis & Donovan and Robert J. Lewison, Miami, for appellant.
    Ligman, Martin, Shiley & McGee, Jeanne Heyward, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Substantial competent evidence supports the Final Judgment entered by the trial court. Atkins v. Keller, 400 So.2d 168 (Fla. 3d DCA 1981). The court denied insurance coverage for an automobile accident which occurred during the short period of time that the car involved in the accident was uninsured.

Affirmed.


text:
    Gilbert L. O’NEAL and Marta O’Neal, his wife, Appellants, v. Stella BOLLING, Appellee.
    No. 81-931.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Anthony J. Scremin, Miami, for appellants.
    Alfred Manheim, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Whether Mrs. Bolling, as she asserted, made a loan of $22,800 to Gilbert O’Neal in 1972 or, as O’Neal asserted, Mrs. Bolling gave him this money as a gift, was most clearly an issue which could not be resolved by a summary judgment where the sole undisputed fact is that O’Neal received the money. Even if, arguendo, the trial court premised the summary judgment on the theory that any gift was presumptively invalid because O’Neal occupied some fiduciary relationship with Bolling, see, e.g., Crane v. Stulz, 136 So.2d 238 (Fla. 2d DCA 1961), the material facts concerning the relationship were in dispute; and, in any event, this presumption of invalidity may be overcome by showing the fairness and validity of the gift, matters which were also in dispute.

Accordingly, we must reverse that part of the judgment in Bolling’s favor which awarded her $2,800 with interest at seven per cent commencing December 13, 1972, and $20,000 with interest at seven per cent commencing December 26, 1972. We affirm that part of the judgment, conceded by O’Neal to be based on an unrepaid loan, which awards Bolling $5,000 with interest at seven per cent per annum commencing December 4, 1972, and which denies Bolling attorneys’ fees on her claim.

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

      . Since the case is remanded for trial, we note for the future guidance of the trial court that Mrs. Bolling’s recently-fashioned typed likenesses of the $2,800 and $20,000 promissory notes are not duplicates as defined by Section 90.951(4), Florida Statutes (1981). See Law Revision Council Note (1976) (manually reproduced copies, as by typing or handwriting, are excluded from the definition [of duplicate]). The Advisory Committee Note to Federal Rule of Evidence 1001(4) provides that: “Copies subsequently produced manually, whether handwritten or typed, are not within the definition [of duplicate].” (emphasis supplied). If the trial court is satisfied with Bolling’s predicate proof that the originals are lost and no duplicates ever existed, it may allow Bolling to establish the contents of the notes in the manner provided in Section 90.954, Florida Statutes (1981), which may be by oral testimony. See United States v. Standing Soldier, 538 F.2d 196, 203 (8th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976); Klein v. Frank, 534 F.2d 1104, 1107 (5th Cir. 1976); see also Action Fire Safety Equipment, Inc. v. Biscayne Fire Equipment Company, Inc., 383 So.2d 969 (Fla. 3d DCA 1980).


text:
    TATRA, INC., a Florida corporation, Appellant, v. William H. SPENCER and Bernice Spencer, husband and wife, Appellees.
    No. 81-1030.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Michael H. Cates, Key West, for appellant.
    E. Nelson Read, Key West, for appellees.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the judgment of the trial court in this boundary dispute since the record contains ample substantial and competent evidence to support the trial court’s determination that the plaintiffs below, ap-pellees here, established an adverse possession to the three-foot strip of land in question or, alternatively, established a boundary by acquiescence.

Appellant suggests that the Spencers failed to carry their burden on the issue of color of title. Section 95.16, Florida Statutes (1977).

As we stated in Moore v. Musa, 198 So.2d 843 (Fla.3d DCA 1967), “[t]o be effective as color of title, an instrument must purport to convey the land involved and contain a proper description by which the property may be identified. Color of title means only an apparent or semblance of title as opposed to actual title.” Id. at 847.

The trial court found, in the alternative, that there was substantial competent evidence to support judgment for the Spencers on á theory of boundary by acquiescence. Testimony showed that usage of the strip in dispute dated back to 1921. We agree with the well-reasoned special concurrence of Judge Mills in Laurendine v. Markham, 408 So.2d 839 (Fla. 1st DCA 1982) that substantial evidence of past acquiescence should override the determinativeness of surveyors’ findings. This is particularly true where the surveyor’s point of origin is the central issue.

No error having been demonstrated, the judgment below is affirmed.


text:
    Orquidia MARTINEZ, Appellant, v. PAN AMERICAN HOSPITAL and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 81-1457.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Orquidia Martinez, in pro. per.
    James Parks and Robert Whaley, Tallahassee, for appellees.
    Before SCHWARTZ and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Perez v. State, Department of Labor and Employment Security, 377 So.2d 806 (Fla.3d DCA 1979); Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827 (Fla. 4th DCA 1973). Compare Mueller v. Harry Lee Motors, 334 So.2d 67 (Fla.3d DCA 1976). See also Slusher v. State of Florida, Department of Commerce, 354 So.2d 450 (Fla. 1st DCA 1978).


text:
    Roberto Aristides BARO a/k/a Robert Baro, Appellant, v. Martha B. BARO a/k/a Marta F. Baro, Appellee.
    No. 81-1537.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Roberto Aristides Baro, in pro. per.

      Spear & Hoffman and L. Joseph Hoffman, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the order under review which, inter alia, required the appellant to pay an arrearage at the rate of $100 per month, without prejudice, of course, to the appellant’s right to apply to the trial court for relief from the order based on his asserted current financial inability to comply with its terms.

Affirmed.


text:
    Sergio GOMEZ, Appellant, v. Esther COUVERTIER, Appellee.
    No. 81-1586.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Albert G. Siegel, Miami Beach, for appellant.
    Clark, Dick & Lancaster, South Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Gomez, a general contractor, appeals from a $8,538.00 judgment entered after a non-jury trial in an action based on alleged construction defects in the residence he built for the plaintiff-appellee.

Since there was no evidence that Gomez was either expressly or impliedly obliged to do so, we agree with his claim that the court incorrectly awarded $1,500 expended for refacing non-defective steel patio columns with brick, which was accomplished simply because the plaintiff preferred that surface. Home Development Co. of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965).

The appellant’s other contention is that the plaintiff’s expert witness, also a general contractor, was erroneously permitted to rely upon the estimate of his tile subcontractor to establish the cost of repairing defective tile work at the home. This point is without merit. Section 90.704, Fla. Stat. (1979) (“If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.”).

For these reasons, the judgment below is reduced by $1,500 and is otherwise affirmed.

Affirmed as modified.


text:
    Richard BLOUNT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1671.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender and Kathleen Mahoney, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Johnson v. State, 293 So.2d 71 (Fla.1974); Sharp v. State, 328 So.2d 503 (Fla. 3d DCA 1976); Gaynor v. State, 196 So.2d 19 (Fla. 4th DCA 1967).


text:
    Russell Steven VARNADOE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1730.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Diane R. Tolbert, Key West, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Melendez, 392 So.2d 587 (Fla. 4th DCA 1981); State v. Roker, 290 So.2d 525 (Fla.3d DCA 1974); New York v. Belton, 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838 (1981); Adler v. State, 382 So.2d 1298 (Fla.3d DCA 1980).


text:
    Juan C. GIL a/k/a Pedro Salazar, Appellant, v. The STATE of Florida, Appellee.
    No. 82-11.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.

      Juan C. Gil, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Michael SWAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-177.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Michael Swain, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Petitioner Michael Swain, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R. Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: COBB, Judge. DAUKSCH, C. J.,

text:
    George E. ADAMS and G. Bruce Hill, d/b/a Adams & Hill, a partnership, Appellants, v. Herbert L. FREEL, Appellee.
    No. 81-488.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.

      Jeffrey C. Fulford, of Adams & Hill, Orlando, for appellants.
    Carl W. Hartley, Jr., of Thomas and Thomas, P. A., Orlando, for appellee.
   COBB, Judge.

This case raises the question of the extent of the discretion of a trial judge to allow the delinquent filing of requests for admissions. The plaintiffs, Adams and Hill, a law partnership, sued a corporate defendant, Sunny Hill South, Inc., and its president, Herbert Freel, for attorney fees. On December 12, 1980, the plaintiffs served a request for admissions on both the corporate and individual defendants. These requests were not answered within 30 days.

Florida Rule of Civil Procedure 1.370(a) provides that matters to which an admission is properly requested are

admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow. . . .

Subsection (b) of the rule states that

-any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to Rule 1.200 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved bv it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the'merits.

On January 13, 1981, Sunny Hill South served a suggestion of pendency of bankruptcy. There was a scheduling conference on February 9, 1981. At the scheduling conference, it was argued whether the bankruptcy code stayed the entire proceeding or only stayed the proceeding with regard to the bankrupt party, Sunny Hill South. The trial court ruled that the case could proceed against Freel and Freel hand-delivered his answers to the request for admissions that day.

Plaintiffs moved to strike Freel’s answers to the request for admissions on the ground that Freel’s answers were not timely. The motion was argued prior to trial and the trial court denied the motion.

The case was tried without a jury and the trial court found in favor of Freel. Adams and Hill moved for rehearing and the trial court denied the motion. Plaintiffs are appealing the final judgment that was rendered in favor of Freel, primarily on the basis that the trial court erred in allowing Freel’s late answers to the request for admissions.

Since Florida Rule of Civil Procedure 1.370 is based on Federal Rule of Civil Procedure 37, federal cases interpreting the federal rule dealing with requests for admissions are highly persuasive. McKean v. Kloeppel Hotels, Inc., 171 So.2d 552 (Fla. 1st DCA 1965). Under the federal rule dealing with requests for admissions, a trial court may allow a party to file untimely answers to a request for admissions, even though the party has not moved for such an allowance. French v. United States, 416 F.2d 1149 (9th Cir. 1968); Herrin v. Blackman, 89 F.R.D. 622 (W.D.Tenn.1981). Other states that have rules patterned after the federal rules have followed this federal case law. Yunghans v. O’Toole, 224 Kan. 553, 581 P.2d 393 (1978); Farmers Elevator Co. of Horace v. Nagel, 307 N.W.2d 580 (N.D.1981).

In the case at hand, both defendants were relying upon the filing of the suggestion of bankruptcy by Sunny Hill South as a stay of the proceedings. Once the trial court ruled that the suggestion of bankruptcy only stayed the proceedings with regard to Sunny Hill South and not with regard to Freel, then Freel filed his answers to the request for admissions. There was no prejudice to the plaintiff in this situation. Although we do not suggest that the trial court has unfettered discretion to allow a party to file untimely answers to a request for admissions, we do not believe there has been a showing that such discretion was abused in this case.

Since the second point raised on this appeal is patently without merit, involving a simple conflict in the evidence resolved by the trier of fact, the judgment below is

AFFIRMED.

COWART, J., concurs.

DAUKSCH, C. J.,

concurs specially with opinion.

I agree with the majority’s opinion regarding the late filing of the answers to requests for admissions. I also agree that the trial judge, sitting without a jury, could have found for the appellee, but I disagree with the majority’s statement that the “second point raised on this appeal is patently without merit.” In my opinion that point on appeal has merit even though we must decide the point against appellants. In fact, and under the law, if the trial judge had found for appellants at trial, there was an abundance of evidence to support that decision, and we would have been bound to affirm the judgment.


author: PER CURIAM. DAUKSCH, C. J.,

text:
    Robert J. LEE, Appellant, v. James LEE, Orie Lee, Louise Lee, Laura Hill and Harris Hill, Appellees.
    No. 81-825.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.
    Joseph E. Foster of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Frank M. Townsend of Townsend & Townsend, Kissimmee, for appellee James Lee.
    No appearance for appellees, Orie Lee, Louise Lee, Laura Hill and Harris Hill.
   PER CURIAM.

AFFIRMED.

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

DAUKSCH, C. J.,

dissents with opinion.

I respectfully dissent.

In my opinion there is a genuine issue of fact as to whether James Lee knew, or under the circumstances should have known, that the property in question was partnership property. As the law requires, I have resolved all doubts and inferences in favor of the non-movant and am left convinced this case should not have been decided by summary judgment. I would reverse the summary judgment and have the case returned for trial. In that event, all the facts could be brought before a jury to determine the matter after resolving the conflicts in the evidence.


author: SHARP, Judge.

text:
    In re the ADOPTION OF Bridgett Danielle BRAITHWAITE, John R. POMEROY, Jr., Appellant, v. Ronald Charles BRAITHWAITE, Appellee.
    No. 81-848.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.

      Blaise Picchi, of Blaise Picchi, P.A., Fort Lauderdale, for appellant.
    William 0. Boyd, Mount Dora, for appel-lee.
   SHARP, Judge.

Pomeroy appeals from a judgment approving the adoption of his child by a stepparent, and severing his parental relationship with her. We reverse and remand for the reasons stated in this opinion.

The severance of a parent-child relationship is an extreme and harsh judicial act, and it should not be done unless the trial judge is convinced that the statutory basis for this remedy has been clearly established. The applicable statute provides the only grounds for an adoption in this context:

The court may excuse the consent of the following individuals to an adoption:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;

In this case the only possible statutory basis for granting an adoption without Pomeroy’s consent is abandonment because there was no evidence of desertion. The trial court here merely found the adoption was in “the best interest of the child” and that the stepparent was a “fit and proper person to adopt the minor child.”

Our review of the record shows that the facts tending to show abandonment are in conflict. Although the contacts between Pomeroy and his child were infrequent during the two years prior to filing the petition, this could have been largely caused by the nature of the father’s job (a worker on an off-shore oil rig), the long distances between the parent and child (Texas — Florida), adverse economic circumstances experienced by the father, and a conscious effort on the part of the custodial parent to extinguish the relationship between the child and her natural father. She returned his Christmas presents, did not allow a requested summer visitation, and did not keep Pomeroy informed of the child’s current address.

As an appellate court we did not hear the testimony, and we cannot resolve the conflicts in the record, nor determine credibility of witnesses. Therefore, we reverse the judgment and remand this cause to the trial court for entry of findings of fact and conclusions of law as to whether this petition should be granted. Because of the lapse of time between the trial (May 4, 1981) and this court’s opinion, the trial court may, in its discretion, take additional testimony on the relevant issues.

REVERSED AND REMANDED.

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

      . Roy v. Holmes, 111 So.2d 468 (Fla. 2d DCA 1959).

      . The relationship between a parent and child is also constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

      .§ 63.072(1), Fla.Stat. (1979); see Solomon v. McLucas, 382 So.2d 339 (Fla. 2d DCA 1980).

      . The custodial parent of a child also owes an obligation to the non-custodial parent, to encourage and nurture the parent-child relationship. It is often only too easy for the custodial parent to undermine and starve the non-custodial parent’s contacts and relationships with the child, particularly where the parties are separated by long distance. There is some suggestion in the record that this (in part) occurred here.


text:
    Stephen BLAUSTEIN, Appellant, v. Carla BLAUSTEIN, Appellee.
    No. 81-675.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Richard A. Bolton of Bolton & Bolton, P.A., North Miami Beach, for appellant.
    Ira M. Krauss of Bauman & Wurtenber-ger, Plantation, for appellee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1980); and Davidson v. Davidson, 410 So.2d 943 (Fla. 4th DCA 1982).

AFFIRMED.

BERANEK, HERSEY and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    Marion E. PEARSON, Appellant/Cross-Appellee, v. Paul R. PEARSON, Appellee/Cross-Appellant.
    No. 81-276.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.

      Ronald Sales, and Edna Caruso, West Palm Beach, for appellant/cross-appellee.
    Joseph Kuharcik, Riviera Beach, for ap-pellee/cross-appellant.
   HERSEY, Judge.

The former wife brings this appeal from a final judgment of dissolution of marriage asserting error in the trial court’s disposition of property and award of alimony. The former husband’s cross-appeal seeking to reduce the amount of permanent, periodic alimony payments was withdrawn during oral argument.

As in so many of these cases the trial court was hard pressed to achieve equity between the parties because of the limited assets and resources available to establish and maintain two separate households. It appears that the trial judge did an admirable job. Even so, we determine that the amount of periodic alimony payments is inadequate, even applying the liberal test of correctness postulated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). It is our view that the amount should be increased to $400.00 per month. The trial court is directed to amend the final judgment in that regard and as so modified we affirm the final judgment.

AFFIRMED WITH INSTRUCTIONS TO MODIFY.

BERANEK and DELL, JJ., concur.


text:
    Jay CEDRONE, a/k/a Jay Mark Cedrone, Appellant, v. STATE of Florida, Appellee.
    No. 81-935.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Michael D. Gelety of Damore & Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged by information with trafficking in cocaine, in violation of Section 893.135, Florida Statutes (1979). He entered a plea of no contest, reserving the right to appeal the constitutionality of the statute.

Appellant presents several arguments for holding the statute unconstitutional. The Florida Supreme Court has considered the statute and has held it to be constitutional. State v. Benitez, 395 So.2d 514 (Fla.1981); State v. Yu, 400 So.2d 762 (Fla.1981); State v. Leicht, 402 So.2d 1153 (Fla.1981); and State v. Werner, 402 So.2d 386 (Fla.1981). We are surprised that the appellant did not point these cases out to the Court and distinguish them if he felt they are distinguishable.

AFFIRMED.

BERANEK, HERSEY and DELL, JJ., concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Joe GERRY, Individually and in his capacity as a General Contractor, and Joe Gerry d/b/a Gerry Construction, Appellants, v. Armand Marc ANTONIO, a/k/a Marc Anthony, and Mr. Land, Inc., Appellees.
    No. 80-2018.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.

      R. Patrick Beatty and Robert G. Udell of Saylor & Beatty, Stuart, for appellants.
    James D. McFarland, Stuart, for appel-lees.
   GREEN, OLIVER L., Jr., Associate Judge.

This is a timely appeal from a final judgment determining that the statute of frauds rendered the oral contract sued upon unenforceable. We reverse.

In 1973, the appellant-plaintiff and appel-lee-defendant, entered into an oral agreement under which appellant was to perform the services of a working general contractor. The appellee, developer of the residential housing project, was to pay appellant $1,500.00 per home when and if each individual home was sold and closed. In June, 1977, the business relationship between the parties was terminated. At that time, eight to ten houses were in various stages of construction, five of which were “under roof.” Appellant testified that after the parties’ relationship was terminated, it was agreed that he would receive $750.00 for each of the five homes which were already “under roof.” In return, appellant agreed to waive any monies due him for any of the other homes which had not reached that stage of construction. Appellee denied the existence of such an agreement.

Subsequently, in September, 1978, appellant received a $1,500.00 check from , appel-lee, pursuant to the original agreement, for his work on the model home which was totally completed at the time the parties terminated their association. The check was marked, “Paid in Full” and, according to appellant, was the first indication that he was not going to be compensated pursuant to the oral modification, under which he was to be paid as the houses were completed and sold. Apparently these houses were completed and sold, but appellant never paid. Thus, the present lawsuit was instituted.

At trial, after both parties had testified but prior to the completion of appellant’s case, the judge requested memorandums of law on the applicability of the statute of frauds, indicating that he thought he had all the facts of the case, but, if necessary, would later conduct further proceedings. Neither party objected to this procedure. Thereafter, the court entered final judgment in favor of appellees, determining that the oral contract was in violation of the statute of frauds. Section 725.01, Florida Statutes (1979).

When an oral contract has been fully performed by one party, the statute of frauds may not be employed as a defense. The statute of frauds also may not be invoked where non-performance of a contract’s original terms has been occasioned by an oral modification and the contract as modified has been fully performed. W.B.D., Inc. v. Howard Johnson Co., 382 So.2d 1323 (Fla. 1st DCA 1980).

In the instant case appellant’s part of the contract as modified was fully performed. The subject houses were completed to the stage required by the modified contract. Accordingly, under the previously stated principle, the statute of frauds may not be invoked as a defense to the oral modification.

We reverse the final judgment and remand for a new trial.

REVERSED.

BERANEK, J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    Clementine WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 81-383.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    James 0. Walker, III, Pompano Beach, for appellant.
    Jim Smith, Atty. Gen., Bruce Barkett, Asst. Atty. Gen., F. Robert Santos, Certified Legal Intern, Tallahassee, for appellee.
   HERSEY, Judge.

The natural mother appeals an order of the circuit court finding her minor child to be a dependent of the state pursuant to Section 39.01(9)(a), Florida Statutes (Supp. 1980).

No useful purpose would be served by setting out the extensive history upon which the court’s finding was based nor are the facts necessary to an understanding of what we hold here.

In brief, appellant contends that the petition which resulted in the hearing and order appealed from was legally insufficient, and that the state failed to allege and prove that appellant was “financially able” as required by the applicable statute.

We find the petition adequate for due process purposes and therefore discuss only the second prong of appellant’s attack.

The pertinent sections of the statute in question are Sections 39.01(1), 39.01(9) and 39.01(27), Florida Statutes (Supp.1980), which provide as follows:

(1) “Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6-month period are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.
(9) “Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abused, or neglected by his parents or other custodians.
(27) “Neglect” occurs when a parent or other legal custodian, though financially able, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

Appellant’s position is that in order to find that a child has been “neglected” within the meaning of the statute, the state must allege and prove that the parent or other legal custodian was financially able to provide that which the state claims was not provided, or to prevent the harm which the state alleges befell the child.

The purpose of the phrase “financially able” in subsection (27) is to ensure that financially disadvantaged parents may not be divested of their children simply because they are poor. It does not, however, constitute a license for child abuse for either rich or poor. We need not draw that fine line which the circumstances of some future case will require of a court confronted with a deprivation of necessary food, clothing, shelter or medical treatment. The term “financially able” rather clearly applies in that situation and poverty, under appropriate circumstances, may be found to constitute a bar to a finding of dependency.

The present case does not stand or fall on such a determination. This minor child has been subjected to abuse by a custodian over some period of time without intervention by appellant, whom the record shows was fully cognizant of the situation. The “neglect” occurred when appellant permitted the “child to live in an environment (which) causes the child’s physical, mental, or emotional health to be significantly impaired.”

The minor child involved here was knowingly thrust into an environment that, for a period of almost eight years, endangered his physical, mental and emotional health. He was found to have been physically neglected, underdeveloped, undernourished and physically abused. For a parent to suggest that such a situation should be allowed to continue because of technicalities of pleading or proof is in itself inexplicable. In any event, we reject that suggestion as imputing to the legislature a ridiculous intention.

The statute used the disjunctive “or”. The term “financially able” modifies that provision which requires a showing of deprivation; it does not modify the provision which relates to environment. It was therefore not incumbent on the state to allege or prove that appellant was “financially able.”

That is not to say, however, that poverty could never constitute a defense to a charge of neglect bottomed upon an allegation of harm resulting from an unhealthy environment. We hold only that the burden is on the parent or other legal custodian to come forward with evidence that the condition was unavoidable because of poverty, under such circumstances.

Finding that the trial court correctly determined that the minor child was a dependent of the state, we affirm.

AFFIRMED.

BERANEK and DELL, JJ., concur.


text:
    Randy A. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 80-479.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Applying the “interlocking confession” rule we reject the defendant’s claim of harmful error in denying a severance and admitting the incriminating statement of his co-defendant. Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979); Damon v. State, 397 So.2d 1224 (Fla.3d DCA 1981). His challenges to the retention of jurisdiction over the first third of his fifteen year sentence for third-degree murder under Section 947.16(3), Florida Statutes (1979) are similarly without merit. Borden v. State, 402 So.2d 1176 (Fla.1981); Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981); Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1981). Because, however, grand theft was obviously the underlying felony which supported the finding that the appellant was guilty of third degree felony murder, the sentence, though not the conviction, for grand theft must be set aside. State v. Hegstrom, 401 So.2d 1342 (Fla.1981). The judgments under review are otherwise entirely affirmed.

DOWNEY and DELL, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Frank T. WALSH and American Motorists Insurance Company, Appellants, v. Neldys T. DIAZ f/k/a Neldys T. Lopez and Roberto Diaz, Appellees.
    No. 81-802.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    J. Burke Culler, Jr., and James A. Reynolds, Jr., of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellants.
    Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, and Jack E. Acker-man, West Palm Beach, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

The defendant-appellants’ sole contention on appeal is that the lower court reversibly erred in declining to submit a special interrogatory to the jury as to whether the plaintiff met the statutory no-fault threshold. The use of such a verdict form, however, is ordinarily for the trial judge alone to decide. Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Frank v. Ruwitch, 318 So.2d 188 (Fla. 3d DCA 1975). In Florida East Coast R. Co. v. Lawrence, 346 So.2d 1012 (Fla.1977), the supreme court adopted the only exception to this rule — and then only prospectively — by requiring special verdicts on the comparative negligence issue. We are neither empowered nor inclined to impose another such mandatory requirement in the present instance. Accord, Souto v. Segal, 302 So.2d 465, 467 (Fla. 3d DCA 1974).

AFFIRMED.

DOWNEY and DELL, JJ., concur.

      . Concededly, the jury was otherwise properly charged on the question in accordance with the standard jury instructions and verdict forms.


text:
    Henry T. MACKEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1982.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction is affirmed, State v. Miller, 313 So.2d 656 (Fla.1975), but the sentence is reversed because it is not in accordance with Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981) and Fresneda v. State, 347 So.2d 1021 (Fla.1977).

AFFIRMED IN PART, REVERSED IN PART.

DOWNEY and DELL, JJ., and ALAN R. SCHWARTZ, Associate Judge, concur.


text:
    Leonard BEAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1216.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment and sentence appealed from is affirmed in all respects except the assessment of costs in the amount of $12.00 is stricken.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Fred WEINFURT, Appellee.
    No. 81-1046.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    P. D. Aiken, Fort Lauderdale, for appel-lee.
   PER CURIAM.

Appellee’s defense to the charge of sale of a controlled substance was entrapment. He contended that a confidential informant employed and paid by the police enticed him into delivering the contraband and was present at the sale. Upon appellee’s motion the trial court ruled that appellee could take the deposition of the informant; however, appellee was unsuccessful in obtaining the deposition of the informant and sought sanctions against the State for its failure to divulge the informant’s whereabouts. It appears the State decided it would not comply with the court’s order to either produce the witness for deposition or give appellee his address. Since that left the court no alternative, it dismissed the information.

Oddly enough, on appeal the State contends the trial judge should have continued the case. That contention is rejected out of hand. The record reflects the State was in touch with the witness and simply refused to divulge his whereabouts. The sanction therefore was perfectly appropriate and the order of dismissal is affirmed.

AFFIRMED.

DOWNEY and DELL, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Stephen STERN, Appellant, v. Barbara Denise STERN, Appellee.
    No. 81-528.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Ivan S. Benjamin, Miami, for appellant.
    Richard A. Bolton of Bolton & Bolton, North Miami Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 4th DCA 1980).

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    ROY JORGENSEN ASSOCIATES, INC., Appellant, v. Hector J. DESCHENES, Appellee.
    No. 80-1588.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.

      David W. Trench of Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff, P.A., Miami, for appellant.
    Richard W. Smith of Johnson & Smith, P.A., Fort Lauderdale, for appellee.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Mr. Deschenes, alleging that his contract of employment with appellant for a fixed term had been wrongfully terminated, recovered a money judgment against appellant following a non-jury trial. We conclude that the trial court erred in construing the employment as one for a fixed term, and we therefore reverse the judgment for appellee.

Appellant (“Jorgensen”) is an engineering and management consulting firm working with ministries of highways in countries throughout the world. Deschenes, an engineer with prior experience in international trade and some background in the French and Spanish languages, was hired by Jor-gensen as an equipment maintenance specialist for a highway project in Ecuador. At Deschenes’ request, Jorgensen wrote a letter confirming the offer of employment. This letter, asserted by Deschenes to be the contract of employment, contained no express provision relating to the duration of the employment. However, it did state, “on or about October 31 you will be assigned to our Ecuador Highway Maintenance Technical Assistance Project in the capacity of Highway Maintenance Equipment Engineer for a period of 28 months,” language which appellee contended and the court held was intended to create a contract of employment for a definite period of not less than 28 months. Mr. Deschenes went to Ecuador to commence his duties, but almost immediately a representative of the Ecuadorian government requested appellant to withdraw Mr. Deschenes from the project because of his inability to effectively communicate in the Spanish language. Appellant complied with the request, and being unable to otherwise utilize Mr. Deschenes in its organization, discharged him.

Prior to trial the parties stipulated that the trial court should determine, as a matter of law, whether the contract of employment, i.e., the confirmation letter, was a contract of employment for a specific or definite term, or whether it was a contract of employment for an indefinite term (and thus terminable at will). Appellant contends that the trial court’s determination that the contract was one of employment for a specific term was error, and we agree.

Both parties agree that it is settled law in Florida that an employment contract which does not contain a definite term of employment is terminable at the will of either party without cause. Knudsen v. Green, 116 Fla. 47, 156 So. 240 (1943); Russell & Axon v. Handshoe, 176 So.2d 909 (Fla. 1st DCA 1965); Hope v. National Airlines, 99 So.2d 244 (Fla. 3d DCA 1957); 21 Fla.Jur. Contracts § 6. The parties are also in accord that the duty of construing an employment contract, as with other contracts, is that of the court. Russell & Axon v. Handshoe, supra; Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA 1963).

The only language in the contract which would conceivably sustain a finding of a definite term is the following:

On or about October 31 you will be assigned to our Ecuador Highway Maintenance Technical Assistance Project in the capacity of Highway Maintenance Engineer for a period of 28 months.

Although no Florida case has come to our attention in which the significance of this type language has been considered, appellant cites Buian v. J. L. Jacobson Company, 428 F.2d 531 (7th Cir. 1970) as a case involving an employment letter with strikingly similar language. There, a summary judgment in favor of the defendant employer was affirmed, the court stating, at p. 533:

Plaintiff relies on the wording of the January 27, 1964, agreement which provides that “It is scheduled that your assignment in Saudi Arabia will continue for a period of eighteen (18) months” to support his contention that the parties intended a contract of specific duration. We construe this phrase as merely one of expectation and not sufficient to insert any ambiguity into an otherwise customary employment relationship terminable at will.

We likewise view the quoted language of the contract in this case as being merely language of expectation, not as a definite period of employment. When we consider the meaning of the employment contract from a general view of the entire writing, as we should, Paddock v. Bay Concrete Industries, Inc., supra, we find elsewhere in the confirmation letter language stating, “In addition to monetary compensation, as a permanent employee of the firm, you will receive the following benefits ... ”, among which is reference to annual leave based on length of service which includes “. . . three weeks per year after the first five years.” The reference to Mr. Deschenes being a “permanent employee” and the reference to the amount of annual leave to which he would become entitled after five years’ service are totally inconsistent with a construction of the employment agreement being for a definite term of 28 months; rather, such provisions are entirely consistent with the construction which we place upon the contract, that is, it was a contract for permanent employment with no definite duration specified, the 28 month assignment to Ecuador being merely one of expectation of the initial assignment.

Our disposition of this point on appeal makes it unnecessary to consider the other points raised by appellant relating to whether the contract implied reasonable proficiency in the Spanish language as a condition of employment and whether, in fact, Mr. Deschenes demonstrated the necessary degree of proficiency in the Spanish language to fulfill all conditions precedent to his employment.

The judgment is reversed and this cause remanded with instructions to enter judgment for the defendant appellant.

REVERSED AND REMANDED.

BERANEK and HERSEY, JJ., concur.


text:
    HOME SAVINGS & LOAN ASSOCIATION OF FLORIDA, Appellant, v. TURTLE REEF ASSOCIATES, INC., a Florida corporation, W. R. Scott, Receiver, Hazen Kreis, Raymond Loveday, Jr., American Resort Management, Inc., Jensen Beach Bank, and Robert A. Epperson, et al., Appellees.
    No. 81-163.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Salter, Yeslow & Burnstein, Hollywood, and Richard L. Lapidus of Lapidus & Stet-tin, P.A., Miami, for appellant.
    Hubert R. Lindsey, West Palm Beach, for appellees Turtle Reef Associates, Inc. and American Resort Management, Inc.
   OWEN, WILLIAM G, JR., (Retired) Associate Judge.

Appellant seeks review of a judgment which not only held it in contempt of court and made it subject to punishment to be subsequently imposed, together with attorneys fees and costs, but also summarily adjudged it to be indebted to another party for the sum of approximately $113,000, the entitlement to which was an issue in the litigation. We reverse.

On December 11, 1980, the court entered its order directing appellant to file a certain accounting with the court and serve copies on all parties within one week. Although appellant did not meet the December 18th deadline, a Thursday, it did mail the accounting to the clerk with copies to all parties on the following Monday, December 22. On December 24, 1980, the court, acting on a motion for an order to show cause presented by the party for whose benefit the accounting had been ordered, entered an order directed to appellant requiring it to appear before the court on January 7, 1981, and show cause why it not be adjudged guilty of contempt of the court’s order of December 11. At the hearing on January 7, 1981, the court, with consent of the parties, received as evidence the oral statements of counsel for the parties. At the conclusion of the hearing the court made an oral ruling, later confirmed by written order and judgment, finding appellant in willful contempt of court, entering judgment against it as previously stated, and providing that punishment for the contempt together with attorneys fees and costs would be imposed by subsequent order of the court.

Notwithstanding appellees’ contention before this court that the contempt proceeding was for indirect criminal contempt under Rule 3.840, Florida Rules of Criminal Procedure, it is obvious that this was a civil contempt proceeding. It was instituted by motion of a party to the cause who sought to coerce appellant to file the accounting promptly. The order to show cause was entered for the private benefit of the moving party. This is the classic, textbook example of civil contempt. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977). A criminal contempt proceeding is one maintained solely to vindicate the authority and dignity of the court. Pugliese v. Pug-liese, supra. Here there was nothing before the court to show that the delay in filing the accounting was calculated to or did hinder, embarrass, delay, or obstruct the administration of justice. The record discloses no basis to conclude that the brief delay in filing the accounting was due to any obstinate or contumacious conduct nor that there was any effort on the part of appellant or its attorneys to cause any affront to the court or its authority whatsoever. Thus, the need to vindicate the court’s authority and dignity, the classic textbook requirement for criminal contempt proceedings, was not present here.

The rule in Florida is that one cited for civil contempt may purge himself by complying with the court’s order. Pugliese v. Pugliese, supra; Demetree v. State, 89 So.2d 498 (Fla.1956); Damkohler v. Damkohler, 336 So.2d 1243 (Fla. 4th DCA 1976); Faircloth v. Faircloth, 321 So.2d 87 (Fla. 1st DCA 1975). The converse of such a rule is that one who has, in fact, complied with the court’s order prior to a hearing on a motion for order of contempt or a hearing set in an order to show cause, being at that point in time no longer in contempt of the court’s prior order, should not at that point be subjected to an order of civil contempt.

The money judgment entered against appellant presented nothing more than a summary and punitive disposition of a substantive issue made by the pleadings. To determine that issue on the merits without a hearing is a violation of fundamental rights of due process. The trial court apparently viewed appellant’s failure to comply with its order the equivalent of a “default,” thereby justifying the summary disposition of this substantive issue. We do not find in this record evidence of a willful violation, much less the type of contumacious conduct which, under certain circumstances, could justify the court taking the drastic action of summarily entering a default against the offending party.

The judgment appealed dated January 9, 1981, holding appellant in contempt and entering a money judgment against it is reversed.

Appellant also raises an issue as to whether it is a proper party to this suit having been brought in as an additional party under Rule 1.170(h), Florida Rules of Civil Procedure. That issue is not properly raised on this appeal from the judgment of contempt and money judgment.

REVERSED.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

      . Although mailed December 22, the accounting was not received and filed in the clerk’s office until December 29. At the subsequent hearing on motion to show cause, the court found the delay to be willful.

      . The motion contains no certificate of service and was not filed in the clerk’s office until December 30, but obviously was before the court at the time the order of December 24 was entered.

      . Contrary to the court’s finding, the “evidence” before the court does not sustain the finding of willfulness.


author: HURLEY, Judge.

text:
    Betty Lou DAVIS, Appellant, v. Don P. JOYNER and Atlantic Las Olas, Inc., a Florida corporation, Appellees.
    No. 79-1254.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellant.
    J. Patrick Dyal of Rogers, Morris & Ziegler, Fort Lauderdale, for appellee Joyner.
   HURLEY, Judge.

At issue is whether the trial court abused its discretion by refusing to grant an injunction. We find no abuse of discretion and, accordingly, affirm.

This appeal emanates from a suit brought by Ms. Davis, the owner and landlord of two adjoining lots, against one of her tenants and a subtenant. Ms. Davis, appellant herein, attempted to invoke the trial court’s equity jurisdiction to obtain an injunction prohibiting the tenant and the subtenant of one lot, Mr. Joyner and Atlantic Las Olas, from trespassing on the adjoining lot. According to her complaint, the trespass is in the form of an encroachment by a building. Ms. Davis, however, does not want the encroachment removed; she merely wants to prohibit Mr. Joyner and Atlantic Las Olas, the appellees, from using it.

The encroachment consists of the supporting wall and a portion of the interior of a building. The building extends about one foot over the property line and occupies about 30 square feet. Because the appel-lees’ building abuts a building on the adjoining lot, which is leased to another tenant under a long term lease, Ms. Davis would have little or no use for the small strip of encroached upon property. By contrast, the encroaching portion of the building is essential to the subtenant’s business because it contains part of the restrooms and a staircase.

The unusual controversy in this case becomes more understandable when put in historical contéxt. Both lots were previously owned by Ms. Davis’ parents. In 1941 they executed a 95 year lease of one lot to Mr. Joyner’s predecessor in interest. As a result of the lease, Mr. Joyner pays Ms. Davis rent which is minimal by today’s standards.

In 1951 Mr. Joyner's predecessor subleased the lot to a subtenant, Mr. Leonard. Mr. Leonard constructed or renovated a building on the lot sometime prior to 1956. This resulted in the west wall of the building encroaching slightly across the boundary line onto the Davises’ other lot. Whether Mr. Leonard constructed the encroachment with the consent of Ms. Davis’ mother (Ms. Davis’ father having died before that time) is uncertain. But in any event, Ms. Davis’ mother did sanction the encroachment by executing an unrecorded lease in favor of Mr. Leonard allowing him to use the small strip of land underlying the encroachment. The latter lease expired in 1971, at the same time Mr. Leonard’s sublease expired, and was not renewed.

By 1972 the interested parties had changed. Ms. Davis had succeeded to her mother’s interests in both lots. Mr. Leonard had died, and Atlantic Las Olas had succeeded to Mr. Leonard’s interests as subtenant. When Mr. Leonard’s sublease expired, Atlantic Las Olas obtained a new sublease from Mr. Joyner.

In 1972 Ms. Davis notified Mr. Joyner and Atlantic Las Olas that they were trespassing on the lot adjoining theirs by using the encroaching portion of their building and requested that they stop. This was the first time Ms. Davis or her mother informed Mr. Joyner or his predecessors in interest that the building encroached. Previously, Ms. Davis’ mother had dealt directly with Mr. Leonard, the subtenant, concerning the encroachment, notwithstanding that the tenant was the one paying her the rent on the primary lot and that the tenant may have had a right to insist that Mr. Leonard keep the building within the boundaries of that lot.

When the appellees continued to use the encroachment, Ms. Davis filed suit. She sought damages and requested that the ap-pellees be enjoined from exercising use and possession of approximately the rear foot and one-half of the building and its rear wall. The trial court refused to enjoin future use of the building but awarded Ms. Davis damages in the amount of the reasonable rental value of the encroached upon property from October 1971 through March 1979. Neither party appealed the damages award, and therefore we are faced only with the question of whether the trial court erred in refusing to issue an injunction.

The decision to grant or deny injunctive relief rests largely in the sound judicial discretion of the trial court. State Road Department v. Newhall Drainage District, 54 So.2d 48, 50 (Fla.1951); Gasparilla Inn Inc. v. Sunset Realty Corp., 358 So.2d 234 (Fla. 2d DCA), cert. denied, 364 So.2d 893 (Fla.1978). Ordinarily, a trial court's decision to grant or deny an injunction will not be disturbed on review, unless the decision is contrary to some rule of equity or the result of an improvident exercise of judicial power. Baboun v. Royal Atlas Corp., 287 So.2d 407 (Fla. 3d DCA 1973).

In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. See Do Couto v. ITT Community Development Corp., 347 So.2d 1059 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978); Ortega Co. v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965). This well-settled maxim of equity jurisprudence is summarized in § 936 of the Restatement (Second) of Torts (1979):

(1) The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:
(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

The above passage accurately reflects the law in Florida.

Even this brief survey of the rules governing equitable injunctions reveals that the trial court properly exercised its discretion by denying injunctive relief. The totality of circumstances, especially the factors discussed below, indicates that injunc-tive relief would have been inappropriate in this case.

The first factor we consider particularly important in this case is the balance of the relative hardships to the parties. The proper measure is the harm the defendants will suffer by the issuance of an injunction balanced against the harm the plaintiff will suffer by a denial. See Restatement (Second) of Torts § 941 (1979). Intertwined in this balance are other factors, viz., the nature of the interest the plaintiff seeks to protect and the adequacy of other remedies.

In this case the plaintiff, Ms. Davis, does not want the encroachment removed. She owns all the underlying property and so it is to her advantage to have the building remain intact. Moreover, the appellees readily admit that Ms. Davis owns all the underlying property and thus she is in no danger of losing title by a claim of adverse possession. Furthermore, Ms. Davis does not assert that she should have the right to use the small portion of the interior of the building which encroaches. All she wants is to prevent the appellees from using it. We are at a loss to discover any legally cognizable harm that Ms. Davis will suffer because injunctive relief has been denied. By contrast, the appellees would suffer substantial inconvenience if they were forced to remodel the building.

The second factor, which we consider particularly important, is the lapse of time that has occurred since this encroachment was constructed and the prejudice the landlord and her predecessors have caused to the tenant’s rights. The primary tenant and his predecessors were not informed of the encroachment until sixteen years after the building’s construction. During that sixteen year period essential witnesses have died and evidence has disappeared. Surely the appellees have been prejudiced. Had thé landlord sought to prevent the use of the encroachment in 1956, a court might or might not have granted injunctive relief depending on the totality of the circumstances then existing. The proof of those circumstances has now disappeared. In addition, if the landlord had not chosen to deal directly with the subtenant and had not neglected to inform the tenant of those dealings, then the tenant might have been able to seek recourse against the subtenant that constructed the encroachment. That subtenant is now dead and gone.

To summarize, we hold that considering the totality of the circumstances in this case, and considering the balance of equities between the parties, the inescapable conclusion that follows is that the injunction sought by Ms. Davis would have been both unjust and unfair. Therefore, we affirm the trial court’s refusal to grant injunctive relief.

ANSTEAD and GLICKSTEIN, JJ., concur.