text:
    The STATE of Florida, Appellant, v. Julio VALDES, a/k/a Julio Valdez, Appellee.
    No. 82-398.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 12, 1983.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellant.
    John M. MacDaniel, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

This is the State’s appeal from a trial court order suppressing a firearm seized from Valdes’s automobile. The defendant was lawfully arrested for driving under the influence of an intoxicating liquor. He was removed from his vehicle, searched and placed in the back seat of the nearby police cruiser, and the passenger compartment of his vehicle searched. Two or three minutes elapsed from the time the vehicle was stopped to the time the firearm was found therein.

We reverse the order under review upon a holding that (1) the search of the passenger compartment of the vehicle, and the examination of the contents of any containers found therein, were justified as contemporaneous incidents of the lawful custodial arrest of the defendant, a recent occupant of the vehicle, notwithstanding the defendant’s removal therefrom, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Allen, 407 So.2d 369 (Fla. 2d DCA 1981); Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981); and (2) contrary to the trial court’s belief, the validity of the search as incident to the arrest is unaffected by the fact that the police officers classified their actions as an inventory search, cf. Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981) (where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arguably unsupportable arrest was made on another charge).

Reversed and remanded.


source: Caselaw Access Project

author: JORGENSON, Judge.

license: Public Domain

text:
    Mary ZELDER, Appellant, v. DELTA AIRLINES, INC., and Delta Family Care Disability and Survivorship Plan, Appellees.
    Nos. 81-583, 81-2688.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 14, 1983.
    Fred A. Harrison, Jr., South Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Joseph W. Wom-ack, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Mary Zelder, plaintiff below, is the mother of Robert E. Zelder, now deceased, who was a former employee of Delta Air Lines. Robert was originally employed by Northeast Air Lines in 1957. As a result of the merger between Delta and Northeast, Robert became an employee of Delta in 1972. His employment was not subject to a written contract, nor was he covered by a collective bargaining agreement.

Robert Zelder’s work record with Delta was poor, primarily because of an alcohol problem. Notwithstanding counselling sessions and an alcoholic rehabilitation program in South Miami Hospital, Robert continued to drink. Delta made a decision to terminate Robert’s employment. Delta’s policy is to permit an employee under these circumstances to resign. If a resignation had not been forthcoming, Robert would have been fired. Robert Zelder’s resignation was received by a Delta supervisor on July 20,1979. He was initially notified that his resignation would be effective July 23, 1979. Robert entered an alcohol rehabilitation program at a local hospital on July 25th and was subsequently notified that the effective date of his resignation would be changed to July 27, 1979, in order that a portion of his hospital and medical costs would be covered under the Delta Family Care Medical Plan.

By virtue of his employment with Delta, Robert Zelder was a participant in the Delta Family Care Disability and Survivorship Plan (hereinafter D & S Plan). The D & S Plan provided for a lump sum death benefit funded by a group insurance policy issued to the trustees of the plan by the Aetna Insurance Company. Participation in the plan ceases upon the employee’s termination; however, there is a thirty-one-day grace period which provides coverage and also provides for conversion to an individual whole life insurance policy should the employee so elect. Notice of the conversion privilege was contained in the Delta benefits handbook provided to Robert Zelder in 1979. Mary Zelder was named as beneficiary of the lump sum death benefit provided for under the plan. Robert Zelder did not exercise his right to convert to an individual whole life policy. Delta Air Lines provides no death benefits for employees. Any death benefits are covered under the D & S Plan, which is governed by ERISA. Robert Zelder died on September 9, 1979, apparently by his own hand. Thereafter, Mary Zelder made a claim for death benefits against Delta and, by way of an amended complaint, joined the D & S Plan. Both Delta and the D & S Plan moved for summary judgment, which was granted. It is from those orders that Mary Zelder appeals. We affirm.

A.

Summary Judgment as to Delta

Delta is not a proper party to this lawsuit, and summary judgment in its favor was correct. Barrett v. Thorofare Markets, Inc., 452 F.Supp. 880 (W.D.Pa.1978); accord Boyer v. J.A. Majors Co. Employees Profit Sharing Plan, 481 F.Supp. 454 (N.D.Ga.1979) (employer not a proper party defendant where company has an ERISA plan in place); Carter v. Montgomery Ward & Co., 76 F.R.D. 565 (E.D.Tenn.1976).

Mrs. Zelder’s alternative theory of liability is likewise unavailing. Where, as here, the employee is governed by an oral agreement terminable by either party, there can be no wrongful discharge. DeMarco v. Publix Supermarkets, Inc., 360 So.2d 134 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1123 (Fla.1979), aff’d, 384 So.2d 1253 (Fla.1980), and cases cited therein. Mrs. Zelder has failed to establish any facts which would create liability on the part of Delta.

B.

Summary Judgment as to the D & S Plan

Mrs. Zelder contends that the D & S Plan had a duty to notify Robert Zelder of his conversion rights at the time of his termination. She also alleges that the D & S Plan breached a fiduciary duty owed to her as a named beneficiary by failing to provide her with a copy of the summary plan description which presumably would have put her on notice of Robert’s conversion rights. These alleged obligations were enhanced, Mrs. Zelder contends, because of Robert’s physical and mental condition at the time of his termination. As authority for the foregoing proposition, appellant relies on Denton v. Connecticut General Life Insurance Co., 323 So.2d 17 (Fla. 1st DCA 1975), and Moore v. Peninsular Life Insurance Co., 213 So.2d 721 (Fla. 1st DCA 1968), cert. denied, 222 So.2d 746 (Fla.1969). We find those cases inapposite to the facts before us. Nor do we read Section 627.566, Florida Statutes (1979), to require the special handling to which Mrs. Zelder suggests she is entitled.

Appellant has not furnished, nor has our independent search disclosed, any case which would create on the part of an employer or insurer an extraordinary duty owed to an employee whose diminished mental or physical condition is a result of voluntarily-induced alcoholism.

The summary judgments are accordingly affirmed.

      . Under the rules of the medical plan, an employee is covered for an illness which commences while still employed and continues beyond the termination date.

      . The Delta Family Care Disability and Surviv-orship Plan is governed by the provisions of the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1381 (1979).

      . The conversion rights for group life insurance are described on pages D-4 and 5 of the 1979 Handbook:
      Are there any other provisions relating to basic lump sum death benefits of which I should be aware?
      You should be aware of the following provisions of the group insurance contract providing basic lump sum death benefits:
      Your insurance will cease upon termination of employment. However, if your death should occur within 31 days after termination, or after your insurance has reduced due to retirement, the full benefit will be payable. During the 31-day grace period, you may elect to convert the terminating insurance to permanent insurance. Contact Group Insurance — Dept. 840 — ATL for an application during the 31-day period. A policy for the converted insurance will be issued at regular rates without a medical examination.

      . § 104(b)(4) of ERISA (29 U.S.C. § 1024(b)(1)) requires that the summary plan description be furnished to participants and those beneficiaries who are actually receiving benefits under the Plan.


author: BASKIN, Judge.

text:
    HIGHLANDS INSURANCE COMPANY, Suez Motel, Inc. and Richard Vincent, Appellants, v. Michael LUCCI, Appellee.
    No. 81-1762.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 12, 1983.
    Leland E. Stansell, Jr., Greene & Cooper and Robyn Greene and Joan M. Bolotin, Miami, for appellants.

      Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Lucci, a motel bar patron, sued the doorman, Vincent, the Suez Motel and its insurer, Highlands Insurance Company, alleging that the doorman committed an assault and battery upon him and that, as a result, he suffered a broken nose and other injuries. Vincent responded that he acted in self-defense. After considering Vincent’s deposition, as well as the deposition of another hotel employee (Tabb), the trial court granted summary judgment as to liability in favor of Lucci. A subsequent jury trial resulted in an award of $190,000 compensatory damages.

Appellants present several challenges to the final judgment: the grant of summary judgment, evidentiary rulings by the trial court, and the court’s failure to excuse for cause a prospective juror who did not think she could be impartial. Upon review, we find that genuine issues of material fact remain to be decided and, accordingly, the trial court erred in granting summary judgment. Devcon (Panama) International Corp. v. Sheffield Steel Products, 409 So.2d 214 (Fla. 4th DCA 1982); Squitieri v. Aetna Casualty & Surety Co., 382 So.2d 730 (Fla. 5th DCA 1980); accord Hull & Company v. McGetrick, 414 So.2d 243 (Fla. 3d DCA 1982); Perez v. Universal Engineering Corp., 413 So.2d 75 (Fla. 3d DCA 1982); Ultra Marine Corp. v. Bryant, 375 So.2d 613 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 634 (Fla.1980); see Holl v. Talcott, 191 So.2d 40 (Fla.1966). We therefore reverse the final judgment.

The record discloses that doorman Vincent asked Lucci to stop annoying two girls inside the disco. A short time later, Vincent received another complaint and asked Lucci to leave. As he started to leave, Lucci mumbled words indicating that he would “get even” or would “get” Vincent. In response to a signal from Lucci, Vincent walked toward him. As Vincent walked through the doorway, Lucci pulled on his left shoulder or arm. Vincent responded with a “shot” or punch to Lucci’s nose and allegedly continued to punch Lucci before going back inside the disco. In his deposition, Vincent testified that he didn’t like to have anyone touch him. He stated that he struck Lucci because he believed that Lucci was preparing to “swing” at him. Tabb, the other employee, stated during his deposition that he had heard that Lucci was a “wiseguy.” These statements served as the basis for Vincent’s assertions that he acted in self-defense.

A movant for summary judgment must conclusively refute affirmative defense asserted by the non-movant. First Independent Bank, N.A. v. Stottlemyer & Shoemaker Lumber Co., 384 So.2d 952 (Fla. 2d DCA 1980); Spear v. Martin, 330 So.2d 543 (Fla. 4th DCA 1976); accord Proprietors Insurance Co. v. Siegel, 410 So.2d 993 (Fla. 3d DCA 1982); General Development Utilities, Inc. v. Davis, 375 So.2d 20 (Fla. 2d DCA 1979). Whether Vincent believed he was acting in self-defense and whether his belief was reasonable, Price v. Gray's Guard Service, Inc., 298 So.2d 461 (Fla. 1st DCA), cert. denied, 305 So.2d 208 (Fla.1974); accord Byrd v. Isgitt, 338 So.2d 374 (La.Ct.App.1976), are questions of material fact precluding disposition by summary judgment.

Our reversal necessitates a new trial, not only as to liability, but to damages as well. The trial court’s refusal to excuse for cause a prospective juror who stated she could not be impartial deprived appellants of a fair trial; appellants had exhausted their peremptory challenges. Peek v. State, 413 So.2d 1225 (Fla. 3d DCA 1982); see Peri v. State, 412 So.2d 367 (Fla. 3d DCA 1981); §§ 913.03, 913.12, Fla.Stat. (1979); Fla.R. Civ.P.1.431. Furthermore, issues pertaining to liability and to damages became inextricably interrelated during the trial when the trial court permitted appellee to read portions of Tabb’s deposition to the jury but denied appellants’ request to introduce complementary portions. American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981); King v. Califano, 183 So.2d 719 (Fla. 1st DCA 1966); Fla.R.Civ.P.1.330(a)(4), thereby preventing Vincent from supporting his contention that the assault had been provoked, a matter to be considered in the assessment of damages.

Reversed and remanded for a new trial as to liability and damages.

       A punitive damage claim had been abandoned.


author: DANIEL S. PEARSON, Judge.

text:
    Acceus ST. PIERRE, Appellant, v. PUBLIC GAS COMPANY, a domestic corporation, Appellee.
    No. 81-2025.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 12, 1983.
    Keyfetz, Poses & Halpern and L. Barry Keyfetz, Miami, for appellant.
    Conroy & Simberg, Hollywood; Daniels and Hicks and Sam Daniels, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We are called upon to decide whether a trial court is authorized to order a new trial on liability conditioned on the plaintiff remitting fifty per cent of the amount of damages awarded by the jury based on the trial court’s conclusion that the plaintiff’s negligence was fifty per cent of the cause of plaintiff’s damages, not, as the jury had found, twenty per cent.

Jacqueline St. Pierre, married and the mother of five children, was killed when she lit a match causing the stove in her home to explode. Her husband, Acceus, and her son Karl were injured by the explosion. The stove had been serviced and repaired by the appellee, Public Gas Company, which also supplied gas to the St. Pierre home. Ac-ceus St. Pierre, as next friend of Karl; as personal representative of the estate of his wife; and on his own behalf and on behalf of the children, Madeline, Laveline, Youse-line, Nancy and Karl, brought a negligence action against Public Gas Company.

After a five-day trial, the jury found Public Gas negligent, awarded the plaintiffs damages of $308,806.16, and found Jacqueline “and/or” Acceus twenty per cent negligent. The trial court entered judgment for the plaintiffs for $247,046.52 (the total damages awarded reduced by twenty per cent). Thereafter, on Public Gas’s motion for new trial, the questioned remittitur was entered.

It is clear from the record before us that the total damages awarded by the jury were not excessive, a fact which, at least implicitly, was recognized by the trial court. Despite this, the trial court conditioned the denial of a new trial on the plaintiffs’ acceptance of a remittitur of damages based on an increase of the comparative negligence factor from twenty per cent to fifty per cent. In our view, the trial court’s action was unauthorized.

In the strikingly similar case of Akermanis v. Sea-Land Service, Inc., 688 F.2d 898 (2d Cir.1982), the court addressed the question “whether a trial judge may use the device of a new trial order conditioned on a remittitur to increase a jury’s determination of the percent of responsibility for an injury that is attributable to a plaintiff’s contributory negligence.” At trial, the jury had found that Sea-Land, the operator of a vessel on which Akermanis was employed as an engineer, was negligent when, despite rolling seas and a deck slippery from the ocean’s spray, its agents instructed Akermanis to work on deck. The jury further found the negligence of Akermanis, a man of thirty years maritime experience, was a four per cent cause of Akermanis’ fall, which resulted in a disabling spinal injury. The trial court concluded that the jury’s selection of this percentage was against the weight of the evidence and ordered a new trial on liability, but with the condition that a new trial would be denied if Akermanis would accept a “remittitur” of damages based on an increase of the contributory negligence factor from four to twenty-five per cent.

The Second Circuit Court of Appeals, analyzing the theory upon which a court’s authority to order a remittitur is founded, held that remittitur could not be used to adjust the jury’s finding in respect to the extent to which a plaintiff’s own negligence contributed to his injury. The court stated:

“Remittitur is a limited exception to the sanctity of jury fact-finding. It allows trial judges to reduce damages, but only when an award is grossly excessive. As the Supreme Court has stated, this exception is justified because, ‘[w]here the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess — in that sense that it has been found by the jury — and the remittitur has the effect of merely lopping off an excrescence.’ Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935). But in Dimick, the Supreme Court made clear that remittitur was not an expansive doctrine: ‘Maintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.’ Id.
“In giving that scrutiny to the use of remittitur in this case, this court notes a fundamental difference between the use of remittitur to decrease a determination of damages and its use here to increase a contributory negligence percentage. Though both have the same ultimate consequence of reducing the amount of the judgment that the plaintiff is invited to accept as the price of avoiding a new trial, the means by which the reduction is accomplished differ in a way that is critical to determining the lawfulness of the technique. A conditional reduction of a damage calculation leaves in the judgment a portion of what the jury awarded, a circumstance that the Supreme Court considered crucial to its willingness to permit remittitur while rejecting additur in Dimick. In this ease, however, the conditional adjustment of the contributory negligence percentage inserts into the judgment something beyond what the jury found: a conclusion that the plaintiff’s negligence was responsible for a greater share of the accident than the jury had thought.” Id. at 902.

In a long and unbroken line of cases, Florida courts have employed the same Dimick rationale in rejecting a trial court’s authority to impose an additur. See Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla.1961); Healy v. Atwater, 269 So.2d 753 (Fla. 3d DCA 1972); City of Fort Walton Beach v. Southern State Steel Corp., 249 So.2d 62 (Fla. 1st DCA 1971); Wohlfiel v. Morris, 122 So.2d 235 (Fla. 2d DCA 1960); State Road Department of Florida v. Cox, 118 So.2d 668 (Fla. 3d DCA 1960); Sarvis v. Folsom, 114 So.2d 490 (Fla. 1st DCA 1959). We share the Second Circuit’s view that the same rationale which prevents additur precludes any adjustment that extends a jury’s finding, even if that extension results, as it does here, in a reduced monetary judgment. The question of apportioning the negligence between the plaintiff and the defendant is one that is peculiarly within the province of the jury and is not subject to adjustment by remitti-tur. Accordingly, the order granting a new trial is

Reversed.

      . Had the damage award been so excessive as to shock the judicial conscience or to indicate some improper motive on the part of the jury, the remedy would be remittitur or new trial on the issue of damages only. See Gould v. National Bank of Florida, 421 So.2d 798 (Fla. 3d DCA 1982) and cases cited therein.

      . The case was brought pursuant to the Jones Act, 46 U.S.C. § 688, under which the plaintiff’s contributory negligence is not a bar to recovery, but rather is the functional equivalent of Florida’s comparative negligence rule.

      . The Legislature has since authorized additur in actions arising out of the operation of motor vehicles. See § 768.043, Fla.Stat. (1977). The statute has been held constitutional in the face of an attack that it intruded into the rule-making province of the judiciary. Adams v. Wright, 403 So.2d 391 (Fla.1981).

      . Public Gas Company concedes that there was ample evidence to support the jury’s finding that it was negligent to some degree. Even were remittitur a proper device for adjusting the percentages of negligence, we think the evidence clearly supported the jury’s finding and would reverse the order below on the separate ground that the trial court abused its discretion in granting a new trial. See Gould v. National Bank of Florida, supra.


text:
    Geraldine TALCOTT, individually and as Personal Representative of the Estate of Frank A. Talcott, II, Appellant, v. Leroy E. TALCOTT, Jr., individually and as Trustee under the Will of Leroy E. Talcott, Sr. and as sole surviving partner of Triple T, a dissolved Florida partnership, Frank A. Talcott, III, Leslie T. Hullett and Bruce E. Talcott, Appellees.
    No. 82-483.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 12, 1983.

      Julian M. Quarles and Charles F. Mills, South Miami, for appellant.
    Herbert A. Warren and Roger H. Edwards, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Geraldine Talcott, widow and personal representative of the estate of Frank Tal-cott II, sought a declaration of her rights under a trust agreement executed by Leroy E. Talcott, Sr., her father-in-law. Frank’s three children from prior marriages intervened in the action, seeking to obtain assets held by Leroy E. Talcott, Jr., as trustee under Leroy E. Talcott, Sr.’s trust. The intervenors contended that Frank had not exercised the power of appointment in his will in the manner required by the original trust agreement and that they were therefore entitled to the assets held by the residuary trust for Frank’s benefit.

Geraldine asserted that Frank intended to exercise the power of appointment when he executed his will leaving his property to his wife. If we accept her contention, the residuary trust corpus should have been distributed to Geraldine rather than to the intervenors. In support of her position, Geraldine relied upon several documents. One document consisted of a deed which purportedly conveyed property belonging to the trust from Leroy E. Talcott, Jr. and Frank to the Triple T partnership and to themselves. Geraldine argued that the deed evidenced Frank’s intent to exercise the trust’s power of appointment since it served to transfer trust property. The court, by virtue of the motion for summary judgment, was called upon to decide whether Frank exercised the power of appointment without expressly mentioning the power, as the trust agreement required, and whether his intent to do so could be gleaned from extrinsic evidence.

The trial court ruled that Frank had not exercised the power of appointment in accordance with the trust provisions and that his children, the intervenors, were therefore entitled to the assets held by the residuary trust for his benefit. The court also determined that the residuary trust for Frank’s benefit held a 39.85% interest in the assets of the Triple T partnership. We agree and affirm the final judgment.

In its final judgment, the trial court found:

1. LEROY E. TALCOTT, SR. executed a Trust Agreement, dated April 18, 1971. The corpus of this Trust consisted of Certificate No. 4 of L.E. TALCOTT & SONS, INC. for 6,431 shares of the capital stock of such corporation. The balance of 1,569 shares of the stock was owned by RUTH E. TALCOTT.
2. The Trust Agreement provided that upon the death of LEROY E. TAL-COTT, 50% of the assets would go into a marital trust for RUTH E. TALCOTT and 50% into a residuary trust. LEROY E. TALCOTT died in 1976. After administration of his estate and the payment of estate taxes, 2,563 shares of the stock of L.E. TALCOTT & SONS, INC. were allocated to the marital trust and 3,595 shares allocated to the residuary trust.

8. The 1,569 shares owned by RUTH E. TALCOTT were sold by her in August, 1975, to LEROY E. TALCOTT, JR., and FRANK A. TALCOTT, II, with the result that, prior to the death of RUTH E. TALCOTT, the ownership of the stock was as follows:

Marital Trust — 2,563 shares — 33.17%
Residuary Trust — 3,595 shares — 46.53%
Leroy E. Talcott, Jr. — 784V2 shares— 10.15%
Frank A. Talcott, II — 784V2 shares— 10.15%

4.In November, 1975 the stockholders of L.E. TALCOTT & SONS, INC. adopted a plan of liquidation and dissolution with the result that the assets of the corporation were distributed to the stockholders in the following percentages:

Leroy E. Talcott Marital Trust 33.16%
Leroy E. Talcott Residual Trust 46.54%
Leroy E. Talcott, Jr. 10.15%
Frank A. Talcott II 10.15%

The assets of the corporation at the time of liquidation consisted of the realty described as:

Lots 1, 2 and 3 South Miami Industrial, according to the Plat thereof recorded in Plat Book 51 at Page 52 of the Public Records of Dade County,

and certain stocks traded on the national exchanges. A deed was executed by the surviving directors of the corporation on June 30, 1978, reflecting the conveyance of the real property to LEROY E. TAL-COTT, JR. — 10.15%, FRANK A. TAL-COTT II — 10.15%, and Triple T, a partnership — 79.7%. There was no consideration paid for this conveyance and was solely to reflect the percentage ownership of the individual and trust interests.

5.After the liquidation of L.E. TAL-COTT & SONS, INC. federal partnership tax returns were filed under the name of TRIPLE T, a partnership. These returns reflected the receipt of income from the assets formerly held by L.E. TALCOTT & SONS, INC. and, the returns for 1975 and 1976 reflected the percentage ownership of the assets as follows:

Leroy E. Talcott Marital Trust 33.17%
Leroy E. Talcott Residual Trust 46.53%
Leroy E. Talcott, Jr. 10.15%
Frank A. Talcott II 10.15%

The partnership returns for 1977 and 1978 reflected the percentage ownership as:

Leroy E. Talcott, Jr. 10.15%
Frank A. Talcott II 10.15%
L.E. Talcott Marital Trust 33.16% Residual Trust for the benefit of
Leroy E. Talcott, Jr. 23.27% Residual Trust for the benefit of
Frank A. Talcott II 23.27%

6.RUTH E. TALCOTT died February 13, 1978. Her Will provided for certain minor specific bequests and then devised and bequeathed all of the rest and remainder of her estate to the trustees of the LEROY E. TALCOTT, SR. Revocable Trust to be added to and become a part of the residuary trust estate. The LEROY E. TALCOTT, SR. Trust Agreement provided that upon the death of RUTH E. TALCOTT the trustees shall divide the residuary trust, including any amounts which may be added thereto from the marital trust, into two shares, one of which to be delivered to FRANK A. TAL-COTT II for the use and benefit of LEROY E. TALCOTT, JR. and the other equal share to LEROY E. TALCOTT, JR. for the use and benefit of FRANK A. TALCOTT II. Thus, after the death of RUTH E. TALCOTT, the beneficial ownership of the assets of TRIPLE T, which consisted of the land and stock formerly owned by the corporation was as follows:

Leroy E. Talcott, Jr. 10.15%
Frank A. Talcott II 10.15%
Residual trust for benefit of Leroy E. Talcott, Jr. 39.85%
Residual Trust for benefit of Frank A. Talcott II 39.85%

7.FRANK A. TALCOTT II died June 4, 1980, after his death the respective interests in the assets of TRIPLE T were:

Leroy E. Talcott, Jr. 10.15%
Geraldine Talcott, as personal representative of the Estate of Frank A. Talcott II 10.15%
Residual Trust for benefit of Leroy E. Talcott, Jr. 39.85%
Residual Trust for benefit of Frank A. Talcott II 39.85%

8.The Court finds that LEROY E. TALCOTT, JR., as Trustee for the Benefit of FRANK A. TALCOTT, II, owned a 39.85% interest in the assets of TRIPLE T., a partnership, at the time of the death of FRANK A. TALCOTT, II; that such 39.85% interest in the assets of TRIPLE T constituted trust assets and not a personal asset of FRANK A. TALCOTT, II; and that such 39.85% interest is distributable to the intervenors, FRANK A. TALCOTT, III, LESLIE T. HULLETT, and BRUCE E. TALCOTT, in equal shares, pursuant to the provisions of the Trust Agreement of April 18, 1971.

9. In addition to the interest of the Marital Trust in TRIPLE T which became a part of the Residuary Trust upon the death of RUTH E. TALCOTT, there are other assets which are still in the Estate of RUTH E. TALCOTT, deceased, and which were distributable at the time of her death 50% to the trust for the Benefit of LEROY E. TALCOTT, JR. and 50% to the Trust for the benefit of FRANK A. TALCOTT II. The interve-nors are entitled to receive the 50% interest which was distributable to the Trust for the Benefit of FRANK A. TALCOTT, II. The ultimate determination of the assets of the Estate of RUTH E. TAL-COTT (other than the interest of the Marital Trust in TRIPLE T) must await completion of the probate proceedings in such Estate.

10. The real property hereinabove described which was initially owned by L.E. TALCOTT & SONS, INC., and which was later put into the names of TRIPLE T., LEROY E. TALCOTT, JR. and FRANK A. TALCOTT, II, was sold in January, 1981, to Gerald F. Bean and Richard A. Raffo, as Trustees. The sales price was One Million Two Hundred Thousand Dollars ($1,200,000.00), with the Purchasers executing a purchase Money Mortgage and Note in the amount of One Million Dollars ($1,000,000.00). This Note and Mortgage has been assigned to the following parties in the following percentages:

Leroy E. Talcott, Jr. 10.15%
Geraldine Talcott as Personal Representative of the Estate of
Frank A. Talcott, II, deceased 10.15%
S.R. Barnett, as Trustee for Leroy E.
Talcott, Jr. 39.85%
R.W. Rivenbark, as Escrow Agent 39.85%
Also, an Escrow Agreement was entered into on January 5, 1981, whereby 39.85% of the cash proceeds of sale and 39.85% of the payments made under the Purchase Money Mortgage are being held in escrow by R.W. Rivenbark, Esquire, pending a determination by this Court as to the parties entitled to such proceeds.

Based upon these findings, the court ordered:

1. That 39.85% of the proceeds derived from the sale of the real property herein-above described, including a 39.85% interest in the Purchase Money Note and Mortgage, constitute trust assets which are distributable to the intervenors under the provisions of the Trust Agreement of LEROY E. TALCOTT, SR., dated April 1971. Further, 39.85% of all remaining assets of TRIPLE T, a partnership, and 50% of the net distributable assets of the estate of RUTH E. TALCOTT, deceased are likewise trust assets which are distributable to the intervenors under the provisions of the Trust Agreement of April 18, 1971.
2. The intervenors, FRANK A. TAL-COTT, III, LESLIE T. HULLETT, and BRUCE E. TALCOTT, are entitled to receive immediate payment from R.W. Rivenbark, Escrow Agent of all funds, plus interest, heretofore deposited with such Escrow Agent pursuant to the Escrow Agreement dated January 5, 1981.
3. The intervenors are the equitable owners of a 39.85% interest in that certain Note and Purchase Money Mortgage given by Gerald F. Bean and Richard A. Raffo, as Trustees, to LEROY A. [sic] TALCOTT, JR., individually and as sole surviving partner of TRIPLE T, a partnership, and GERALDINE TALCOTT, as Personal Representative of the Estate of FRANK A. TALCOTT, II, which Purchase Money Mortgage is recorded in the Public Records of Dade County, Florida in Official Records Book 10984 at Page 1142. Such 39.85% interest is presently held by R.W. Rivenbark, Escrow Agent, pursuant to an assignment by the mortgagees. The intervenors are entitled to an immediate assignment to them of such 39.85% interest in the said Note and Purchase Money Mortgage.
4. That the intervenors are the equitable owners of a 39.85% interest in all other assets of the TRIPLE T partnership, in addition to the proceeds derived from the sale of the real property herein-above described, and LEROY A. [sic] TALCOTT, JR. and GERALDINE TAL-COTT, as Personal Representative of the Estate of FRANK A. TALCOTT, II, are hereby required to wind up the affairs of the partnership and to account to the intervenors for such assets and to make prompt distribution to the intervenors accordingly.
5. That the intervenors are entitled to receive 50% of the distributable assets of the Estate of RUTH E. TALCOTT, deceased (other than the assets previously held as a part of the Marital Trust) when such assets are determined and distributable in the probate proceedings. The remaining 50% of such net assets are distributable to the trust for the benefit of LEROY A. [sic] TALCOTT, JR.
6. The respective interest of LEROY E. TALCOTT, JR. and GERALDINE TALCOTT, as Personal Representative of the Estate of FRANK A. TALCOTT, II, in the proceeds of the sale of said real property and the remaining assets of TRIPLE T partnership are as follows:
Leroy E. Talcott, Jr. 10.15%
Geraldine Talcott as Personal
Representative of the Estate of
Frank A. Talcott, II 10.15%
Trust for the Benefit of Leroy E.
Talcott, Jr. 39.85%

The court reserved jurisdiction to resolve any remaining disputes and to award attorneys’ fees called for under the trust agreement.

Directing our attention first to the summary judgment in which the court decided that Frank failed to exercise the power of appointment granted to him under the trust agreement, we refer to the trust agreement itself. The trust agreement provided:

Upon the death of FRANK A. TAL-COTT, II, before complete distribution of his share, the remainder thereof plus any accrued or undistributed income shall be paid over and distributed to or in trust for such appointee or appointees, in such manner and proportions as FRANK A. TALCOTT, II may have appointed in and by his valid Last Will making specific reference to this power of appointment.

Frank died testate on June 4, 1980, leaving his entire estate to his wife, Geraldine. He made no mention of the power of appointment provided by the original trust. His will provided:

ARTICLE II.
I hereby give, devise, and bequeath all of my estate whether real, personal or mixed, of every kind, description and character, or to which I may be in any manner entitled, or in which I may be interested at the time of my death to my wife, GERALDINE TALCOTT.

When a method for executing a power of appointment is stated by the donor of a power, the donee must execute the power in the prescribed manner, Gorey v. Guarente, 303 Mass. 569, 22 N.E.2d 99 (1939); Applegate v. Brown, 168 Neb. 190, 95 N.W.2d 341 (1959); Republic National Bank of Dallas v. Fredericks, 274 S.W.2d 431 (Tex.Civ.App.1954), rev’d on other grounds, 155 Tex. 79, 283 S.W.2d 39 (1955); 72 C.J.S. Powers § 38 (1951); when the donor fails to specify the precise method for exercising the power, whether the donee’s acts constitute an exercise of the power becomes a question of intent. See Stewart v. United States, 512 F.2d 269 (5th Cir.1975). If the trust contains no specific limitation on the manner of executing the power, other evidence that the power had been executed may be considered to determine intent. See DePass v. Kansas Masonic Home, 132 Fla. 455, 181 So. 410 (1938); § 732.607, Fla.Stat. (1979); U.P.C. § 2-610 (1972). When the trust defines the manner in which the power must be exercised, noncompliance with the donor’s requirements defeats the appointment. In re Estate of Smith, 41 Colo.App. 366, 585 P.2d 319 (1978); Holzbach v. United Virginia Bank, 216 Va. 482, 219 S.E.2d 868 (1975); accord Lednum v. Barnes, 204 Md. 230, 103 A.2d 865 (1954); In re Estate of Schede, 426 Pa. 93, 231 A.2d 135 (1967); see Leidy Chemicals Foundation, Inc. v. First National Bank of Maryland, 276 Md. 689, 351 A.2d 129 (1976); Loring v. Karri-Davies, 371 Mass. 346, 357 N.E.2d 11 (1976); Shine v. Monahan, 354 Mass. 680, 241 N.E.2d 854 (1968). In Smith, the court stated:

Contrary to the ruling of the trial court, the question of whether a power of appointment has been validly exercised depends not on the intent of the donee of the power, but on whether the power was exercised in the manner prescribed by the donor, i.e., by making specific reference in her will to this power. Where the controlling requirements are clearly stated in the donor’s will, the donee’s intent is irrelevant if she fails to comply with those requirements.

41 Colo.App. at 368, 585 P.2d at 321.

The foregoing principles compel the rejection of evidence of intent to exercise the power of appointment because the method employed failed to comply with the donor’s requirements. We therefore hold that the court properly granted appellees’ motion for summary judgment.

Upon review of the trial court’s allocation of trust assets, we find that the evidence, which included tax returns and testimony, sustained the result.

For these reasons, we affirm the final judgment entered by the trial court.


author: GLICKSTEIN, Judge.

text:
    A.J. SPAGNOL LUMBER COMPANY, INC., Appellant, v. Carl R. TRAUGER and Rosann L. Trauger, Appellees.
    No. 81-624.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 11, 1983.
    Robert B. Dunckel of Adler, Tolar & Adler, Fort Lauderdale, for appellant.
    Julian R. Benjamin of Therrel, Baisden, Stanton, Wood & Setlin, Miami, for appel-lees.
   GLICKSTEIN, Judge.

Appellant/creditor, a Pennsylvania corporation, seeks reversal of a judgment on the pleadings entered by the trial court in favor of appellees/debtors, now Florida residents, based on the application of section 55.05, Florida Statutes (1977).

Appellant’s amended complaint alleged that it was a supplier of building materials to appellees, who were the principals of a corporate builder in Pennsylvania; that it loaned appellees $15,000 in 1967 for which appellees executed and delivered their promissory note; and that when appellees failed to pay the note, appellant obtained a judgment against them in 1971 for the principal and interest. It further alleged that immediately prior to the judgment, appel-lees removed themselves from Pennsylvania to Puerto Rico, where they concealed themselves; and that after being located there by appellant, they removed themselves to Florida where they fraudulently concealed themselves.

Attached to the amended complaint were a copy of the promissory note and an exemplified copy of the docket of the Court of Common Pleas of Allegheny County, Pennsylvania, which established the entry of a cognovit judgment in 1971 by the prothono-tary of that county. After denial of their motion to dismiss, appellees filed their answer, raising the affirmative defense that the “confession judgment” was obtained without personal service upon them and was null and void pursuant to section 55.05.

The trial court entered judgment on the pleadings in their favor based upon the foregoing affirmative defense.

There is no question about the legislature’s intent in the enactment of the present version of section 55.05. The title of Chapter 59-321, Laws of Florida expressly recites in part:

AN ACT amending Section 55.05, Florida Statutes, relating to confession of judgments by extending the coverage of said section to foreign judgments.

The question is whether the legislature can constitutionally eviscerate a foreign cogno-vit judgment by that section. We hold that it cannot and reverse the trial court’s judgment.

Our action is not lightly taken (although our research reveals a dearth of cases in Florida such as the present since 1959 when the foregoing amendment was enacted) because of our duty as recited in A.B.A. Industries v. City of Pinellas Park, 366 So.2d 761, 763 (Fla.1979).

When construing statutes, the courts must assume that the Legislature intended to enact an effective law. Statutes are presumptively valid and constitutional, and will be given effect if possible. All doubts will be resolved in favor of constitutionality. Bonvento v. Bd. of Public Instruction of Palm Beach County, 194 So.2d 605 (Fla.1967). Acts of the Legislature are presumed valid and an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. Knight and Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966).

Nevertheless, it is our conclusion that the statute, if applied in accordance with its title, (as opposed to a literal application of the body of the act to cases that do not involve foreign judgments), is violative of Art. IV, § 1, United States Constitution. The legislature’s plain intent was in disregard of the supreme court’s constitutional admonition in United Mercantile Agencies v. Bissonnette, 19 So.2d 466, 467 (Fla.1944) which said:

It is held in this jurisdiction that a judgment conclusive in a sister state where rendered is conclusive here, under the “full faith and credit clause” of the Federal Constitution, Art. 4, § 1, and applicable Federal Statutes. The fact that a judgment of a sister state is of a character or in a form which would not be permissible in a domestic judgment is not of itself a valid ground for refusing it recognition. In many states entry of judgments by confession without service of process is permissible. See 31 Am.Jur. pp. 109, 114, Secs. 465, 478. A judgment entered under the laws of a sister state permitting such entry of judgment, therefore, will not be denied enforcement in this jurisdiction merely because by our law the entry of such a judgment by our own courts would be unlawful.

See also Carroll v. Gore, 106 Fla. 582, 143 So. 633 (1932) and Pearson v. Friedman, 112 So.2d 894 (Fla. 3d DCA 1959). It also disregarded a number of governing decisions of the United States Supreme Court rendered prior thereto; and its action is inconsistent with subsequent governing decisions rendered by that court in 1972.

Based upon the decisions of the United States Supreme Court — and in light of the facts of this case which show all of the contacts to be in Pennsylvania and Florida’s apparent sole interest to be that of appellees’ place of financial refuge — we reverse and remand.

DOWNEY and DELL, JJ., concur.

      . Section 55.05 provides:
      All powers of attorney for confessing or suffering judgment to pass by default or otherwise, and all general releases of error, heretofore made or to be made hereafter by any person whatsoever within or without this state, before such action brought, shall be absolutely null and void.

      . The original complaint was filed in 1977.

      . The note provided:
      And to secure the payment of said amount we hereby authorize, irrevocably, any attorney of any Court of Record, to appear for us in such Court; in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this Note...
      Exhibit C attached to the amended complaint cited “12 Pa.Stat.Ann. Sect. 739. Judgment on note, bond, etc., confessing judgment; Philadelphia County,” to read as follows:
      It shall be the duty of the prothonotary of any cout [sic] of record, within this Commonwealth, on the application of any person being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person to confess judgment, to enter judgment against the person or persons, who executed the same for the amount, which, from the face of the instrument, may appear to be due, without the agency of an attorney, or declaration filed, with such stay of execution as may therein be mentioned, for the fee of one dollar, to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing, on which the judgment may be founded, which shall have the same force and effect, as if a declaration had been filed, and judgment confessed by an attorney, or judgment obtained in open court, and in term time; and the defendant shall not be compelled to pay any costs, or fee to the plaintiffs attorney, when judgment is entered on any instrument or writing as aforesaid.

      . Art. IV, § 1 provides:
      Full Faith and Credit shall be given in each State to the public Acts, Records and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

        See also 28 U.S.C.A. § 1738 which implements the full faith and credit clause, providing:
      The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
      The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
      Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. June 25, 1948, c. 646, 62 Stat. 947.

      . Morris v. Jones, 329 U.S. 545, 547, 67 S.Ct. 451, 454, 91 L.Ed. 488, 494 (1947) held:
      The Full Faith and Credit Clause and the statute which implements it (R.S. § 905, 28 U.S.C. § 687, 28 U.S.C.A. § 687) require the judgments of the courts of one State to be given the same faith and credit in another State as they have by law or usage in the courts of the State rendering them.

        Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278, 282 (1940) said:
      Where a judgment rendered in one state is challenged in another, a want of jurisdiction over either the person or the subject matter is of course open to inquiry. Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U.S. 287, 11 S.Ct. 92, 34 L.Ed. 670; Adam v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649. But if the judgment on its face appears to be a “record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.” Adam v. Saenger, supra, 303 U.S. at page 62, 58 S.Ct. at page 456, 82 L.Ed. 649. In such case the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based. Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039; Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365, 53 A.L.R. 1141; Titus v. Wallick, 306 U.S. 282, 59 S.Ct. 557, 83 L.Ed. 653. Whatever mistakes of law may underlie the judgment (Cooper v. Reynolds, [77 U.S.] 10 Wall. 308, 19 L.Ed. 931) it is “conclusive as to all the media concludendi”. Fauntleroy v. Lum, supra, 210 U.S. at page 237, 28 S.Ct. at page 643, 52 L.Ed. 1039.
      In Milwaukee County v. M.E. White Co., 296 U.S. 268, 275-76, 56 S.Ct. 229, 233, 80 L.Ed. 220, 226-27 (1935), the court held:
      A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action, the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis. Regardless of the nature of the right which gave rise to it, the judgment is an obligation to pay money in the nature of a debt upon a specialty. Recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; D’Arcy v. Ketchum, [52 U.S.] 11 How. 165, 13 L.Ed. 648; Tilt v. Kelsey, 207 U.S. 43, 28 S.Ct. 1 [52 L.Ed. 95], or that it has ceased to be obligatory because of payment or other discharge, Anderson v. Clark, 70 Ga. 362; Haggerty v. Amory, 1 Allen (Mass.) 458; First Nat. Bank v. Hahn, 197 Mo.App. 593, 198 S.W. 489; Revere Copper Co. v. Dimock, 90 N.Y. 33, or that it is a cause of action for which the state of the forum has not provided a court, Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373, 24 S.Ct. 92, 48 L.Ed. 225; compare Kenney v. Supreme Lodge, 252 U.S. 411, 40 S.Ct. 371, 64 L.Ed. 638, 10 A.L.R. 716, unless it is compelled to do so by the privileges and immunities clause (Const. Amend. 14, § 1); compare Douglas v. New York, N.H. & HR. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747, McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227, and Broderick v. Rosner [294 U.S. 629, 55 S.Ct. 589, 79 L.Ed. 1100], supra; or possibly because procured by fraud, compare Christmas v. Russell [72 U.S.], 5 Wall. 290, 18 L.Ed. 475; Maxwell v. Stewart [88 U.S.], 21 Wall. 71, 22 Wall. 77, 22 L.Ed. 564; Hanley v. Donoghue, 116 U.S. 1, 6 S.Ct. 242, 29 L.Ed. 535; Simmons v. Saul, 138 U.S. 439, 11 S.Ct. 369, 34 L.Ed. 1054, with Webster v. Reid [2 U.S.], 11 How. 437, 13 L.Ed. 761; McNitt v. Turner [83 U.S.], 16 Wall. 352, 366, 21 L.Ed. 341; Cole v. Cunningham, 133 U.S. 107, 112, 10 S.Ct. 269, 33 L.Ed. 538.

      . In that year, the court had for consideration the constitutionality of cognovit procedures in Ohio and Pennsylvania in two cases, and Justice Blackmun authored both opinions. We first treat the Ohio decision in D.H. Overmeyer Co., Inc., of Ohio v. Frick Company, 405 U.S. 174, 176-78, 184-85, 188, 92 S.Ct. 775, 777-78, 781-83, 31 L.Ed.2d 124, 128-29, 133-36 (1972), because of the overview presented therein. The authoring justice first observed (we reluctantly omit reference to the footnotes but refer the reader thereto):
      The cognovit is the ancient legal device by which the debtor consents in advance to the holder’s obtaining a judgment without notice or hearing, and possibly even with the appearance, on the debtor’s behalf, of an attorney designated by the holder. It was known at least as far back as Blackstone’s time. 3 W. Blackstone, Commentaries *397. In a case applying Ohio law, it was said that the purpose of the cognovit is “to permit the note holder to obtain judgment without a trial of possible defenses which the signers of the notes might assert.” Hadden v. Rumsey Products, Inc., 196 F.2d 92, 96 (CA 2 1952). And long ago the cognovit method was described by the Chief Justice of New Jersey as “the loosest way of binding a man’s property that ever was devised in any civilized country.” Alderman v. Diament, 7 N.J.L. 197, 198 (1824). Mr. Dickens noted it with obvious disfavor. Pickwick Papers, c. 47. The cog-novit has been the subject of comment, much of it critical.
      Statutory treatment varies widely. Some States specifically authorize the cognovit. Others disallow it. Some go so far as to make its employment a misdemeanor. The majority, however, regulate its use and many prohibit the device in small loans and consumer sales.
      He then rejected the obligor’s due process argument:
      The argument then proceeds to constitutional grounds. It is said that due process requires reasonable notice and an opportunity to be heard, citing Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). It is acknowledged, however, that the question here is in a context of “contract waiver, before suit has been filed, before any dispute has arisen” and “whereby a party gives up in advance his constitutional right to defend any suit by the other, to notice and an opportunity to be heard, no matter what defenses he may have, and to be represented by counsel of his own choice.” In other words, Overmyer’s position here specifically is that it is “unconstitutional to waive in advance the right to present a defense in an action on the note.” It is conceded that in Ohio a court has the power to open the judgment upon a proper showing. Bellows v. Bowlus, 83 Ohio App. 90, 93, 82 N.E.2d 429, 432 (1948). But it is claimed that such a move is discretionary and ordinarily will not be disturbed on appeal, and that it may not prevent execution before the debtor has notice. Griffin v. Griffin, 327 U.S. 220, 231-232, 66 S.Ct. 556, 561-562, 90 L.Ed. 635 (1946). Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), are cited.

        The due process rights to notice and hearing prior to a civil judgment are subject to waiver. In National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), the Court observed: “[I]t is settled . .. that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether.” Id., at 315-316, 84 S.Ct., at 414.
      And in Boddie v. Connecticut, supra, the Court acknowledged that “the hearing required by due process is subject to waiver.” 401 U.S., at 378-79, 91 S.Ct., at 786.
      The court held:
      We therefore hold that Overmyer, in its execution and delivery to Frick of the second installment note containing the cognovit provision, voluntarily, intelligently, and knowingly waived the rights it otherwise possessed to prejudgment notice and hearing, and that it did so with full awareness of the legal consequences.
      In conclusion, Justice Blackmun said:
      Some concluding comments are in order:
      1. Our holding necessarily means that a cognovit clause is not, per se, violative of Fourteenth Amendment due process. Over-myer could prevail here only if the clause were constitutionally invalid. The facts of this case, as we observed above, are important, and those facts amply demonstrate that a cognovit provision may well serve a proper and useful purpose in the commercial world and at the same time not be vulnerable to constitutional attack.
      2. Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.
      3. Overmyer, merely because of its execution of the cognovit note, is not rendered defenseless. It concedes that in Ohio the judgment court may vacate its judgment upon a showing of a valid defense and, indeed, Overmyer had a post-judgment hearing in the Ohio court. If there were defenses such as prior payment or mistaken identity, those defenses could be asserted. And there is nothing we see that prevented Overmyer from pursuing its breach-of-contract claim against Frick in a proper forum. Here, again, that is precisely what Overmyer has attempted to do, thus far unsuccessfully, in the Southern District of New York.
      The second case, Swarb v. Lennox, 405 U.S. 191, 200-02, 92 S.Ct. 767, 772-73, 31 L.Ed.2d 138, 146-47 (1972), was an appeal by plaintiffs who had brought an action to invalidate the Pennsylvania system leading to confessed judgments. The three-judge district court held that the system complied with due process only if “there has been an understanding and voluntary consent of the debtor in signing the document” and failed to strike down the entire system. It also held, however, that no judgment might be entered after November 1, 1970, as to natural persons earning less than $10,000 who signed “consumer financing or lease contracts containing cognovit provisions.” Because there was no cross-appeal by defendants, the supreme court did not consider or put its imprimatur upon that part of the three-judge decision which enjoined future judgments as to the subject class. However, as to the plaintiffs’ appeal, the court held:
      From this judgment only the plaintiffs appeal. Their claim is that the District Court erred in confining the relief it granted to certain members of the appellants’ proffered class and that the court should have declared the Pennsylvania rules and statutes unconstitutional on their face. A holding of facial unconstitutionality, of course, wholly apart from any class consideration, would afford relief to every Pennsylvania cognovit obligor. Today’s decision in Overmyer, although it concerns a corporate and not an individual debtor, is adverse to this contention of the plaintiff-appellants. In Overmyer it is recognized, as the District Court in this case recognized, that, under appropriate circumstances, a cognovit debtor may be held effectively and legally to have waived those rights he would possess if the document he signed had contained no cognovit provision.
      On the plaintiff-appellants’ appeal therefore, the judgment of the District Court must be affirmed.
      As in Overmyer, the court made concluding comments:
      The decision in Overmyer and the disposition of the present appeal prompt the following observations:
      1. In our second concluding comment in Overmyer, supra, 405 U.S., at 188, 92 S.Ct., at 783, we state that the decision is “not controlling precedent for other facts of other cases,” and we refer to contracts of adhesion, to bargaining power disparity, and to the absence of anything received in return for a cognovit provision. When factors of this kind are present, we indicate, “other legal consequences may ensue.” That caveat has possible pertinency for participants in the Pennsylvania system.
      2. Overmyer necessarily reveals some discomfiture on our part with respect to the present case. However that may be, the impact and effect of Overmyer upon the Pennsylvania system are not to be delineated in the one-sided appeal in this case and we make no attempt to do so.
      3. Problems of this kind are peculiarly appropriate grist for the legislative mill.
      We should add that we have attempted to review the cases which reached conclusions opposite to our own, as well as general articles, texts and annotations on the overall subject. Unfortunately, most of the material pre-dates the 1972 decisions of the Supreme Court and we mention them probably more for pedantic than tutorially helpful reasons. For example, in Atlas Credit Corporation v. Ezrine, 250 N.E.2d 474 (N.Y.1969), the court said it would not enforce the Pennsylvania judgment on the theories that a “judgment” entered by a pro-thonotary was really not a judgment entitled to full faith and credit (Swarb appears to put such contention to rest; and in this case all of the parties expressly refer to a confession judgment); and that the warrant of attorney was too broad to be enforceable. See also Hopson, Cognovit Judgments: An Ignored Problem of Due Process and Full Faith and Credit, 29 U.Chi.L.Rev. Ill (1961); Shuchman, Confession of Judgment as a Conflicts of Law Problem, 36 Notre Dame Law. 461 (1961); Ehrenz-weig, Contracts in the Conflict of Laws, 59 Colum.L.Rev. 973 (1959); Paulsen, Enforcing the Money Judgment of a Sister State, 42 Iowa L.Rev. 202 (1957); Ehrenzweig, Conflict of Laws (1959); Leflar, American Conflicts Law (1959); Restatement (Second) of Conflict of Laws § 32 (1971); Annot., 39 A.L.R.2d 1232 (1955).

      . The parties were doing all of their business in Pennsylvania where appellant was incorporated. The loan was made; the note was executed and the obligation was to be paid there.


author: ANSTEAD, Judge.

text:
    Marvin H. GILLMAN, Trustee, Appellant, v. Joanne Renee NEMEROFF, et al., Appellees. James COOK, Appellant, v. Marvin H. GILLMAN, Trustee, Joanne Renee Nemeroff, et al., Appellees.
    Nos. 81-1314, 81-2216 and 81-2409.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 10, 1983.

      Marvin H. Gillman, pro se, and Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for Marvin H. Gillman.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for Joanne Renee Nem-eroff.
    Terrence J. Watterson and Gregory B. Dickenson of Watterson & Dickenson, P.A., West Palm Beach, for James Cook.
   ANSTEAD, Judge.

These consolidated appeals present us with several issues arising out of actions for specific performance and for broker’s fees following an aborted real estate transaction. We affirm in part and reverse in part.

CASE NO. 81-1314

After successfully prosecuting an action for specific performance the appellant, Marvin H. Gillman, trustee, divested himself of the ability to perform under the court’s order granting him specific performance. He then unsuccessfully sought to convince the court to dismiss his action for specific performance and to reinstate his alternative action for damages. The trial court not only refused to reinstate the damages action, it went forward with a judgment for specific performance and, after a notice of appeal was filed, entered a post-judgment order directing that the appellee, Joanne Renee Nemeroff, was entitled to the return of a deposit since Gillman was unable to comply with the judgment of specific performance.

We find no error by the trial court in refusing to allow Gillman to dismiss his action for specific performance or reinstate his action for damages. In essence the trial court found that Gillman had elected his remedy, i.e., specific performance, and abandoned his claim for damages. Thereafter, upon prevailing, Gillman voluntarily disabled himself from being able to perform under the order of specific performance. Under such circumstances we cannot fault the trial court for refusing to permit Gill-man to start all over again. We do, however, believe the trial court erred in going forward with a final judgment after Gill-man had advised the court of his inability to perform. At that point the trial court should have entered a judgment dismissing Gillman’s claim with prejudice.

CASE NO. 81-2216

We also believe the trial court erred in entering a post-judgment order directing that the deposit be returned to Nemeroff because of the inability of Gillman to perform. This order was actually a modification of the previously entered final judgment and such a modification is not permitted while the merits of the action are in issue on appeal. Leo Goodwin Foundation, Inc. v. Riggs National Bank, 374 So.2d 1018 (Fla. 4th DCA 1979). However, all of the parties have agreed that this issue becomes moot if we approve the trial court’s refusal to reinstate Gillman’s claim for damages. We have approved that action of the trial court and in accord with the parties’ agreement hold that any issue as to error by the trial court in this appeal has become moot.

CASE NO. 81-2409

The trial court also refused to consider the post-judgment request of the broker, James Cook, to determine his entitlement to a commission. Although we find no error by the trial court in refusing to consider the claim while the appeal was pending, we do believe the trial court erred in dismissing the broker’s claim and directing him to file a separate lawsuit for any claim he may have against the other parties. Upon remand the broker should be permitted an opportunity to amend his pleadings or to seek joinder of any other parties as he may deem appropriate in view of the circumstances as they now exist.

Accordingly, we affirm in part and reverse in part and remand this cause for further proceedings consistent with this opinion.

HURLEY and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    Richard P. WILLE, as Sheriff of Palm Beach County, Florida, Appellant/Cross Appellee, v. Samuel L. KARRH, Appellee/Cross Appellant.
    No. 82-1124.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 12, 1983.
    James H. Hicks of McKeown & Gamot, P.A., Palm Beach, for appellant/cross ap-pellee.
    Joseph S. Karp of Bernstein, Narkier, Sharff, Monchick & Karp, West Palm Beach, for appellee/cross appellant.
   PER CURIAM.

This is an appeal from an order denying the Sheriff-appellant’s petition for forfeiture of a boat.

The boat was stopped, seized, and over a thousand pounds of marijuana aboard confiscated. It was stipulated that the boat carried contraband at the time of the stop.

The trial court summarily denied the petition by adopting the holding in a companion criminal proceeding that the contraband in question was seized as a result of an illegal search and seizure.

Section 932.704(1), Florida Statutes (1981), provides:

The state attorney within whose jurisdiction the contraband article, vessel, motor vehicle, aircraft, or other personal property has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband, or such attorney as may be employed by the seizing agency, shall promptly proceed against the contraband article, vessel, motor vehicle, aircraft, or other personal property by rule to show cause in the circuit court within the jurisdiction in which the seizure or the offense occurred and may have such contraband article, vessel, motor vehicle, aircraft, or other personal property forfeited to the use of, or to be sold by, the. law enforcement agency making the seizure, upon producing due proof that the contraband article, vessel, motor vehicle, aircraft, or other personal property was being used in violation of the provisions of such law. The final order of forfeiture by the court shall perfect the state’s right and interest in and title to such property and shall relate back to the date of seizure.

The proceeding is civil in nature and the record and judgment in the criminal action is not admissible. City of Tallahassee v. In re: Forfeiture of One Yellow 1979 Fiat 2-Door Sedan, 414 So.2d 1100 (Fla. 1st DCA 1982).

The distinction between forfeiture and criminal proceedings has been well documented and need not be repeated. See United States v. One 1971 Chevrolet Corvette Automobile, 496 F.2d 210 (5th Cir. 1974); In re 1972 Porsche 2 dr., 307 So.2d 451 (Fla. 3d DCA 1975); State v. DuBose, 11 So.2d 477 (Fla.1943); One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); and United States v. One 1971 Harley-Davidson Motorcycle, 508 F.2d 351 (9th Cir.1974).

We hold that the appellant (a non-party in the criminal proceeding) should be allowed to prove his case in accordance with the guidelines contained in the herein mentioned cases and that the forfeiture proceeding should not be simply determined by the outcome of the criminal proceeding. Reversed and Remanded.

BERANEK, HERSEY and WALDEN, JJ., concur.


author: WENTWORTH, Judge.

text:
    Vista BAHL, et vir., Swire Florida, Inc., d/b/a Gateway Shopping Center & Associated General Insurance Co., Appellants, v. FERNANDINA CONTRACTORS, INC., Appellee.
    No. AI-275.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 7, 1983.

      Jay M. Levy, of Silver, Levy & Hershoff, Miami, for appellants Vista and Roy Bahl.
    Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, Orlando, for appellants Swire Florida, Inc., d/b/a Gateway Shopping Center and Associated Gen. Ins. Co.
    Eliot J. Safer, of Korman & Safer, Jacksonville, for appellee.
   WENTWORTH, Judge.

Appellants seek review of an order wherein appellee’s motion to quash service of process was granted, and an amended complaint and third party complaint were dismissed as to appellee; we affirm the order appealed.

Appellant Bahl sued co-appellant Swire, alleging that Swire owned and maintained a shopping center where Vista Bahl sustained injury upon falling over a defective curb. Appellant Bahl subsequently filed an amended complaint and Swire filed a third-party complaint, bringing appellee Fernan-dina into the litigation, based on allegations that Fernandina had negligently constructed the shopping center and created the alleged defective condition. After process was served appellee Fernandina moved to quash service and dismiss the complaints. The court granted the motion and dismissed the complaints against Fernandina.

Fernandina was a business entity which had been dissolved as a Florida corporation in 1973; appellant Bahl’s injury did not occur until 1978, and the complaints against Fernandina were not served until 1981. Florida Statute § 607.297 creates a three-year winding-up period as to claims existing against corporations which dissolve their legal entity. Appellants argue that since their claim was not existing at the time of Fernandina’s dissolution they should now be able to maintain this action against Fernan-dina.

At common law upon dissolution a corporation was for all purposes extinct and a legal action could not be maintained against a dissolved corporation. See Marinelli v. Weaver, 208 So.2d 489 (Fla. 2d DCA 1968); also see Nelson v. Miller, 212 So.2d 66 (Fla. 3d DCA 1968). This common law rule has been altered in many states by “prolongation” statutes; Florida Statute § 607.297 is such an enactment, providing for a three-year winding-up period at corporate dissolution whereby “any right or claim existing, or any liability incurred, pri- or to such dissolution” may be asserted by or against the corporation in a proceeding commenced within three years after legal dissolution. However, this statute is inapplicable in the present case since appellant Bahl’s injury did not occur, and legal action was not initiated, until more than three years after appellee Fernandina’s dissolution. Since the statutory three-year winding-up period has expired, the common law rule controls and a legal action may not be maintained against this dissolved corporation. Cf., Nelson. Although appellants attempt to invoke constitutional arguments, the present case is not an instance of legislative curtailment of a remedy, since at common law no such remedy existed.

Accordingly, the order appealed is affirmed.

McCORD and BOOTH, JJ., concur.

      . Article I, § 21, Florida Constitution: “The courts shall be open to any person for redress of any injury .... ”


author: JOANOS, Judge.

text:
    LINEAR CORPORATION and S of L Electronics, Inc., Appellants, v. STANDARD HARDWARE COMPANY, Appellee.
    No. AJ-132.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Rehearing Denied Jan. 7, 1983.
    William H. Clark of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellants.
    Charles C. Sherrill of Sherrill, Moore & Hill, Pensacola, for appellee.
   JOANOS, Judge.

This is a case involving the applicability of the parol evidence rule to circumstances surrounding the execution of a written purchase order for electronic security devices. We affirm the final judgment of the trial court.

In January, 1980, a salesman for S of L Electronics, Inc., (S of L) called on Standard Hardware Company (Standard) in the course of business selling electronic security devices manufactured by Linear Corporation (Linear). After doing some preliminary investigation, Standard placed an order for twenty-two units, for a net price of $16,975.97. The written purchase order, which was signed on January 10, 1980, by William Weston, president of Standard, contained the following provisions:

“4. OBLIGATION OF THE WHOLESALER: The obligation of the Wholesaler shall be to pay for the goods purchased during the term of the Agreement. THE COMPANY DOES NOT UNDERTAKE TO SELL THE GOODS FOR THE WHOLESALER EITHER DIRECTLY OR INDIRECTLY. THE WHOLESALER IS OBLIGATED TO PAY FOR THE GOODS WHEN PAYMENT IS DUE WHETHER OR NOT THE GOODS ARE THEN SOLD. GOODS PURCHASED UNDER THIS AGREEMENT ARE NOT PURCHASED ON CONSIGNMENT AND CANNOT BE RETURNED. ORDERS ARE NOT SUBJECT TO CANCELLATION.”
# * sfc if: * sf:
“7. AGREEMENT’S ENTIRE UNDERSTANDING: IT IS UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES HERETO THAT THIS AGREEMENT INCLUDES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES. Neither the Company or its sales director, agents and employees have made any representation, of any nature, whatsoever, for the purpose of inducing the execution of this Agreement other than those set forth herein. In the event it is deemed necessary to alter or change this Agreement, said alteration or change must .be made on this Agreement and said alteration or change must further be signed by the parties hereto in order to be binding upon the Company.”

Standard sued S of L and Linear for breach of contract alleging, among other things, that S of L and Linear had agreed, prior to and subsequent to execution of the written order, to repurchase the units at full wholesale purchase price upon request by Standard. Standard further alleged that it had, on numerous occasions, requested S of L and Linear to honor the repurchase arrangement, but they had refused to do so.

Weston testified at the proceedings held before the trial court. Over the objection of S of L and Linear, he was permitted to testify that it was clearly understood by the parties before the contract was signed, and a contemporaneous verbal agreement existed, that appellees would repurchase the devices on request from Standard for the full price, or authorize Standard to send the devices to other distributors. Weston also testified that subsequent to the execution of the written agreement appellees had agreed to send a salesman to pick up the equipment and reimburse Standard. Specifically, Weston said that when he initially contacted S of L/Linear and explained that the product was not moving, apparently in April, 1980, he was assured that a sales representative would be there within the next two weeks. Later the time was extended to two months and then six months, but because of these assurances Standard delayed in pursuing other remedies.

Three letters were introduced to substantiate Weston’s testimony. All of these letters were from Standard to S of L and Linear. The first letter, dated April 8, 1980, referenced an April 4 telephone call and stated that Standard would be pleased if they could receive the full credit “of which you made mention.” The second letter, dated July 16, 1980, referenced a conversation in which “you stated that S of L would give us credit when one of your factory representatives made it to our area.” The third letter was dated August 1, 1980, and stated that Standard had received no reply to its July 16 letter. There were also handwritten notes on that letter apparently referencing telephone conversations concerning when a sales representative would arrive to pick up the equipment. In addition, Weston testified that in telephone conversations of August 18, 1980, September 1, 1980 and September 8, 1980, he was assured that a sales representative would come pick up the materials. None of the letters were answered by S of L or Linear and no written acknowledgement of them appears in the record.

The trial court entered a final judgment finding that S of L/Linear owed Standard $16,975.97 “pursuant to its obligation to repurchase on demand,” a demand having been made by Standard on April 8, 1980. Appellants argue that Weston’s testimony as to the contemporaneous agreement constituted parol evidence and should not have been admitted. Further, they argue that the evidence of an agreement to repurchase subsequent to the written agreement is without effect because the written agreement specified that any modification had to be in writing and signed by the parties, and that this is in accord with Section 672.-209(2), Florida Statutes. Appellant contends the alleged subsequent agreement cannot be considered a waiver under Section 672.209(4), Florida Statutes, since Standard sought total recission of the contract. Appellee argues that Weston’s testimony as to a contemporaneous agreement was admissible under an exception to the parol evidence rule for contemporaneous oral agreements which induce execution of the written agreement. Alternatively, appellee argues the written agreement was subsequently modified by mutual consent and that the parol evidence rule does not prohibit such evidence of a subsequent oral modification. Appellee asserts that abandonment of the written contract can be inferred from the parties’ conduct, citing Barile Excavating & Pipeline Co. v. Vacuum Under-Drain, Inc., 362 So.2d 117 (Fla. 1st DCA 1978).

First, the testimony as to a contemporaneous oral agreement was not admissible. It did not fit under the exception for oral agreements which induce execution of the written agreement, because the alleged oral agreement related to the identical subject matter embodied in the written agreement and, in fact, directly contradicted an express provision of the written agreement. See E.J. Sparks Enterprises v. Christman, 95 Fla. 928, 117 So. 388 (1928) and Johnson v. Johnson, 403 So.2d 1388 (Fla. 2d DCA 1981). We conclude, however, that the admission of this parol evidence was harmless error because of additional testimony by Weston regarding a subsequent modification through the parties’ conduct. This testimony was corroborated to some extent by the series of letters from Standard to S of L and Linear.

The written agreement provided that any modification had to be indicated in writing on the agreement and signed by the parties. Section 672.209(2) provides:

A signed agreement which excludes modification or recission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party, (e.s.)

However, Section 672.209(4) provides:

Although an attempt at modification or recission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

The parties to a contract may modify the written agreement by subsequent oral agreement or course of dealing with one another despite the requirement of a writing in order to modify. See Pan American Engineering Co. v. Poncho’s Construction Co., 387 So.2d 1052 (Fla. 5th DCA 1980); Barile Excavating, supra; Fletcher v. Laguna Vista Corp., 275 So.2d 579 (Fla. 1st DCA 1973) cert. denied 281 So.2d 213 (Fla.1973). See also Doral Country Club, Inc. v. Curcie Bros., 174 So.2d 749 (Fla. 3d DCA 1965) cert. denied 180 So.2d 656 (Fla.1965); Vitra-Spray of Florida, Inc. v. Gumenick, 144 So.2d 533 (Fla. 3d DCA 1962). This concept is consistent with the waiver provision of Section 672.209(4).

In the present case, the evidence as to the parties’ conduct supports finding both a waiver of the requirement that subsequent modifications be in a writing signed by both parties, and that a subsequent modification occurred.

AFFIRMED.

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


author: McCORD, Judge.

text:
    HILLSBOROUGH CLASSROOM TEACHERS ASSOCIATION, INC., Appellant, v. SCHOOL BOARD OF HILLSBOROUGH COUNTY, Appellee, v. FLORIDA TEACHING PROFESSION NATIONAL EDUCATION ASSOCIATION, Broward County Classroom Teachers Association and Florida Education Association/United, Intervenors.
    No. AJ-328.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Rehearing Denied Jan. 11, 1983.
    William H. Yanger, Jr., Tampa, for appellant.
    Thomas M. Gonzalez of Shackleford, Far-rior, Stallings & Evans, and M. Wayne Jacobs, Tampa, Staff Counsel, PERC, for ap-pellee.
    Richard H. Frank and Mark F. Kelly of Frank & Kelly, Tampa, and C. Anthony Cleveland, Tallahassee, Gen. Counsel, FEA/United, for intervenors.
   McCORD, Judge.

Appellants appeal the order of the Public Employees Relations Commission (Commission) dismissing their complaint of unfair labor practice against the appellee School Board of Hillsborough County. In the order, the Commission held that class size and minimum staffing levels are not mandatory subjects of collective bargaining because they do not fall within the ambit of the phrase “wages, hours, and terms and conditions of employment” pursuant to § 447.-309(1), Florida Statutes. We affirm.

In its order on reconsideration, the Commission clarified its position, as follows:

We have not proscribed negotiation concerning any proposal touching on, relating to, or dependent upon class size or minimum staffing levels. We recognize that, for example, there may be negotiable proposals relating to class size and teacher workload, for instance those which are based upon the impact of class size upon the wages, hours, terms and conditions of employment of teachers. The proposals in this ease, however, do not contain such a relationship.
Rather, these proposals attempt to limit the employer’s prerogative to set class size and minimum staffing levels. While we recognize that such decisions quite often may directly and substantially affect the wages, hours, terms and conditions of employment of bargaining unit members, it is the effects of the decisions and not the decisions themselves which are mandatorily negotiable. Because the proposals presented in this case seek only to require the employer to surrender its Section 447.201 right to unilaterally decide class size and minimum staffing levels, negotiation over these proposals is not required. (Emphasis supplied.)

We agree with the Commission’s view that the setting of class size and minimum staffing levels are policy decisions which are incorporated in the term “standards of service to be offered to the public” which are to be unilaterally set by the public employer, pursuant to § 447.209, Florida Statutes, and thus are not mandatorily bargainable. This decision does not preclude mandatory bargaining as to the impact of the implementation of such decisions on “wages, hours, and terms and conditions of employment” when an appropriate showing of negotiable impact has been made.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    William Clark BIBBY, Appellant, v. STATE of Florida, Appellee.
    No. AK-487.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Rehearing Denied Jan. 11, 1983.
    Elizabeth L. White and William J. Sheppard, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Bibby pleaded nolo contendere to possession of more than 20 grams of marijuana, reserving by agreement with the prosecutor and the court his right to complain on appeal that his motion to suppress the marijuana as evidence should have been granted. We have no choice but to reverse Bib-by’s conviction and discharge him. The State clearly agreed that the suppression issue is dispositive. Brown v. State, 376 So.2d 382 (Fla.1979). In this case that means that the state could not convict Bib-by without introducing as evidence the contraband seized from Bibby incident to his arrest. See G.E.G. v. State, 417 So.2d 975 (Fla.1982). Bibby was arrested in his home by officers who entered without warrant or consent upon a signal that the incognito officer within the home had made the sale that put Bibby in possession of the marijuana then to be seized. The State stipulated that no exigent circumstances required the arresting officers to enter, so we cannot speculate upon their possible need to protect the incognito officer or reinforce him in an arrest that he hypothetically might have made. Thus the state has stipulated to all facts necessary for a reversal, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and we must oblige. The conviction is REVERSED.

McCORD and MILLS, JJ., concur.

      . We do not reach the question of whether by this signal the police unlawfully intercepted, by means of a body bug, a conversation within the house in which Bibby had a constitutionally recognized expectation of privacy. State v. Sarmiento, 397 So.2d 643 (Fla.1981).


text:
    Reholga Mack WOODY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1630.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 12, 1983.
    Richard L. Jorandby, Public Defender, and Charles Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Although there are differences between all three of these cases, we believe the disposition of this case should be controlled by the rationale set out in Morgan v. State, 405 So.2d 1005 (Fla. 2d DCA 1981), rather than our recent decision in Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982) (7 FLW 1870). We do not believe the trial court abused its discretion under the facts of this case in excluding the testimony of a surprise witness produced by the defendant on the last day of trial. There is no explanation as to why the defendant, who was shown to have known of this witness for some time, did not disclose his existence earlier. In addition, the witness’ testimony was offered for the limited purpose of impeaching a portion of another witness’ testimony and not for the direct purpose of exculpating the defendant. The trial court’s ruling reflects a proper balancing, in our view, of the propositions that the reciprocal rules of discovery should be followed so long as the defendant is not denied his fundamental right to defend himself. Richardson v. State, 246 So.2d 771 (Fla.1971).

ANSTEAD and HURLEY, JJ., and SHA-HOOD, GEORGE, Associate Judge, concur.


author: HERSEY, Judge.

text:
    Billy Ray JACKSON, Appellant, v. Kenneth JONES, Jr., etc., Appellee.
    No. 81-2120.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 12, 1983.
    Joel T. Daves of Burdick & Daves, West Palm Beach, for appellant.
    James H. Hicks of McKeown & Gamot, P.A., Palm Beach, for appellee.
   HERSEY, Judge.

Billy Ray Jackson, defendant below, appeals from a final judgment claiming as error the failure of the trial court to abate or dismiss the complaint for failure of the appellee to comply with the Fictitious Name Statute.

The dates and sequence of material events in the trial court relevant to our determination of this issue are as follows:

April 21, 1980: Kenneth Jones, Jr., d/b/a The Engine Room filed the original complaint alleging non-payment for repairs on a boat.

May 29,1980: Appellant filed an Answer containing a general denial and a counterclaim. No affirmative defense was pled nor was there any other reference to Section 865.09, Florida Statutes (1979).

June to December, 1980: Discovery took place.

January 29, 1981: Counsel filed a pre-trial stipulation delineating the two issues for trial as the amount due plaintiff on his complaint and the amount due defendant on his counterclaim.

March 19, 1981: Plaintiff, pursuant to stipulation, filed an amended complaint adding a count for reasonable value.

March 30, 1981: Defendant filed an answer and set-off and affirmative defense asserting non-compliance with the statute.

September 24, 1981: Non-jury trial.

Section 865.09, Florida Statutes (1981), provides, in pertinent part, that it is unlawful to engage in business using a fictitious name unless that name is registered in the manner provided for in the statute. Violation may result in criminal penalties and, in addition, one in violation may not defend or maintain suit until the statute is complied with. This statute is obviously not self-executing. A party seeking to obtain its benefit must take appropriate action to bring the matter to the attention of the court and to obtain an appropriate ruling.

The purpose of the statute is to provide notice to one dealing with a business of the real party in interest. Until a party involved in litigation complies with the statute his action will be abated until compliance is effected. Cor-Gal Builders, Inc. v. Southard, 136 So.2d 244 (Fla. 3d DCA 1962). Compliance with the statute may however be waived. Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978). If an individual is doing business under a fictitious name and, without complying with the statute, brings a contract or tort action in which he is involved in his individual capacity then compliance is irrelevant to the cause of action and non-compliance with the statute has no effect on the litigation. See Medsen Development, Inc. v. Bryant, 376 So.2d 423 (Fla. 3d DCA 1979).

We note that appellant originally filed an Answer and Counterclaim. Thereafter an amended complaint was filed to which appellant filed an Answer, Set-off and Affirmative Defense.

The counterclaim alleged in part: “2. On or about November, 1978 Counter-defendant Kenneth Jones, Jr. agreed to perform repair work on two marine engines belonging to Counterclaimant, Billy Ray Jackson.” This allegation illustrates two things. First, there was no confusion as to the name, address and identity of appellee so that the avowed purpose of the Fictitious Name Statute had been accomplished in some manner other than publication. Second, the counter-claim referred to appel-lee in his individual capacity so that noncompliance with the statute was never an impediment to litigation of the counterclaim.

We further think there are a number of reasons that compliance with the statute was not required. In Cor-Gal Builders, Inc. v. Southard, supra, it was held that a defendant who fails to raise non-compliance with the statute until after filing his answer waives the benefit of the statute. We need not go so far. Appellant initially filed an answer in the early stages of the litigation which did not refer to the statute. Not until ten months had elapsed was an amended answer filed, mentioning the statute for the first time. No motion was filed, however, nor any other attempt made by appellant to call this matter to the court’s attention prior to trial. In his opening statement appellant made reference to ap-pellee’s non-compliance but did not move to dismiss until the close of the plaintiff’s case. The court properly took appellant’s motion under advisement. In entering final judgment for appellee the trial court by implication denied the motion. If the purpose of the statute is to advise one litigant of the identity and whereabouts of another litigant it seems to us that failure to pursue the statutory remedy until the day of trial effectively waives any benefit that compliance would afford. A party cannot consistently maintain that it is prepared for trial but it does not know the true identity of its opponant and yet it has not taken advantage of at least the most obvious and readily available tool to unmask his adversary and to discover where he is hiding. Moreover in the instant case the appellant was plainly aware of appellee’s identity and location. On these facts we find a waiver of appellee’s non-compliance with the statute.

For the foregoing reasons, we affirm.

AFFIRMED.

BERANEK and DELL, JJ., concur.