author: BOARDMAN, Acting Chief Judge.

text:
    ITT CONTINENTAL BAKING CO., Petitioner, v. John T. DAVILA, Division of Employment Security, Department of Labor and Employment Security, State of Florida, and Unemployment Appeals Commission, Respondents. ITT CONTINENTAL BAKING CO., Petitioner, v. Waldo CANTERO, Division of Employment Security, Department of Labor and Employment Security, State of Florida, and Unemployment Appeals Commission, Respondents. ITT CONTINENTAL BAKING CO., Petitioner, v. John T. DAVILA, Division of Employment Security, Department of Labor and Employment Security, State of Florida, and Unemployment Appeals Commission, Respondents.
    Nos. 79-1653, 78-2064 and 78-2066.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 20, 1980.

      John-Edward Alley, Robert D. Hall, Jr., and Joseph W. Carvin of Alley & Alley, Tampa, for petitioner.
    John D. Maher, Tallahassee, for respondents.
    Mary Ann Stiles, Tallahassee, amicus curiae, for Associated Industries of Florida.

      . We appreciate the additional light shed on the issues in this case by Associated Industries of Florida as amicus curiae.

   BOARDMAN, Acting Chief Judge.

ITT Continental Baking Co., the employer of respondents Davila and Cantero (claimants), petitions for review of the decision of respondent Unemployment Appeals Commission (the Commission) ruling Davila and Cantero eligible for unemployment compensation benefits. We reverse.

Petitioner has collective bargaining relationships with several unions, including Local 361 of the Bakery and Confectionary Workers Union, with which it had a collective bargaining agreement that was in effect during all times relevant hereto. That agreement contained a no-strike clause which provided: “During the life of this agreement, there shall be no strike, walkouts, slowdowns, or stoppage of work by the employees, and there shall be no lockouts on the part of the employer.”

On the afternoon of February 9, 1978, a majority of petitioner’s employees walked out on a wildcat strike, in violation of this no-strike clause.

On February 11, petitioner mailed telegrams to all the striking employees notifying each that, due to the strike, he was being placed on one-week disciplinary suspension. On February 13, 1978, petitioner mailed telegrams to twelve of the employees, including claimants, who had received prior written warnings for participation in similar wildcat strikes in the past, informing them that they were being discharged due to their violation of the no-strike clause of the collective bargaining agreement and prior participation in similar actions. On February 16,1978, the employees agreed to return to work, but only after it was agreed that meetings would be held to consider various employee complaints and that the discharges of the twelve employees would be subject to arbitration.

Nine of the twelve discharged employees, including claimants, then filed claims for unemployment compensation. The appeals referee found that claimants’ unemployment was due to a labor dispute as defined in Section 443.06(4), Florida Statutes (1977), thus rendering the claimants disqualified for benefits. The referee found that “a labor dispute commenced active progress on February 9, 1978,” that “the claimants] actively and directly participated in the activities of this labor dispute,” and that claimants’ employment status was pending collective bargaining arbitration. The Commission reversed the decisions of the appeals referee on the theory that the discharges of the claimants operated to end the labor dispute with respect to the claimants. Petitioner petitioned this court for review of these decisions (case nos. 78-2064 and 78-2066).

The Division of Employment Security thereupon determined that claimants’ unemployment was for misconduct connected with their work within the meaning of Section 443.06(1), Florida Statutes (1977). Claimants took administrative appeals. The petition in case nos. 78-2064 and 78-2066 were then temporarily suspended by this court. The appeals referee determined that Cantero had not been discharged for misconduct, but that Davila had been discharged for misconduct, finding that “[t]he facts presented in the instant case clearly show that the claimant was discharged from his employment because he participated in an illegal work stoppage contrary to the employer’s known and enforced policies and procedures despite warnings.” Davila had been issued three prior written warnings for similar misconduct. Moreover, he admitted being familiar with the no-strike clause of the union contract, having helped negotiate it.

The Commission reversed the decision of the appeals referee with respect to Davila, ruling that, in considering whether Davila’s conduct constituted misconduct the referee had erred by failing to consider that Davila had acted “in concert with other workers engaged in a labor dispute.” Petitioner separately petitioned for review of this decision to this court (case no 79-1653), and the three cases were consolidated.

The Commission erred in ruling that the claimants’ discharges operated to end the labor dispute with respect to the claimants. This court held otherwise in Meyer v. Florida Industrial Commission, 117 So.2d 216 (Fla.2d DCA 1959), a case similar to the case at bar. There the employer discharged the petitioner for failing to report for work during a strike. The petitioner filed unfair labor practice charges with the National Labor Relations Board, and the trial examiner recommended that the employer be required to reinstate her with back pay. However, the employer refused to reinstate the petitioner even after the strike was called off and filed an appeal from the trial examiner’s recommendation, which was still pending at the time of the hearing before the appeals referee of the Unemployment Compensation Division. This court held:

It is contended by the petitioner that . although a labor dispute came into being on January 17, 1958, the “active progress” of the labor dispute terminated on September 9, 1958, when the Union called off its strike .
We cannot agree with this contention. As we understand the term “labor dispute,” it includes any controversy between employer and employee concerning wages, hours, working conditions or terms of employment. . . . When once a “labor dispute” begins, it remains in “active progress" until it is finally settled, terminated or completely abandoned. .
In the present case the “active progress” of the labor dispute did not terminate on September 9, 1958, when the Union called off the strike . for this action by the Union merely amounted to an abandonment of certain activities which were being employed by the Union to force the employer to accede to the demands which were the basis of the claim out of which the labor dispute arose. It was not an abandonment of the labor dispute itself, because at the time the decision was made by the Union to call off the strike and release the petitioner for reemployment, the claim out of which the labor dispute arose was pending before the National Labor Relations Board, and, indeed, remained pending up through the date of final decision by the Florida Unemployment Compensation Board of Review. .
There is another contention made by petitioner that should be noticed. The petitioner concedes that a labor dispute came into being on January 17, 1958, and thereby disqualified her for benefits for so long as her unemployment was due to the labor dispute. She contends, however, that when she was discharged on January 22, 1958, for failure to come to work the employer-employee relationship theretofore existing was thereby severed, so that after discharge her unemployment was not due to the labor dispute but to the severance from employment.
We cannot agree with this contention. As we gather from the record, the petitioner was discharged and replaced because she joined the strike and refused to report for work. In these circumstances the employer-employee relationship was not absolutely terminated but was merely temporarily suspended until the settlement of the labor dispute or until petitioner secured bona fide permanent employment elsewhere. The petitioner has not shown that she secured other permanent employment, and the fact that, through her union, she diligently pursued her claim for reinstatement with her employer together with back pay, is evidence that she did not consider herself as a permanently discharged employee but rather as a “striking employee” entitled to reinstatement to her former position -in the event her unfair labor practice charges were finally sustained by the National Labor Relations Board.

Id. at 219-220.

In the instant case, the active progress of the labor dispute did not terminate when the striking employees agreed to return to work because the employees did not abandon the claims which precipitated the strike, but agreed to return to work only upon appellant’s accession to their demand that meetings be held to consider their grievances. Similarly, the employer-employee relationship between appellants and the claimants here was not permanently terminated, since the claimants, through their union, sought reinstatement, and the parties agreed that this issue would be settled by arbitration, which had apparently not been concluded at the time of the hearing before the appeals referee. See also Butcher v. Florida Industrial Commission, 231 So.2d 47 (Fla. 3d DCA 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 440 (1971).

Respondents rely on numerous cases from other jurisdictions to support their contention that the labor dispute provision is not applicable to discharged workers. These cases are not on point, for in none of them were the employees actively seeking reinstatement.

The Commission further erred in reversing the appeals referee’s finding that claimant Davila was discharged for “misconduct connected with his work,” as defined in Section 443.06(9), Florida Statutes (1977). Regardless of whether other jurisdictions may choose to exclude participation in a peaceful, albeit unlawful, strike as a basis for denying unemployment compensation benefits, e. g., Linski v. Appeal Board, 358 Mich. 239, 99 N.W.2d 582 (1959); In re Heitzenrater, 19 N.Y.2d 1, 277 N.Y.S.2d 633, 224 N.E.2d 72 (1966), nothing in Florida or federal law compels this court to do so.

In NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939), the United States Supreme Court made clear that protected activities do not include unlawful strikes:

We think that the true purpose of Congress is reasonably clear. Congress was intent upon the protection of the right of employees to self-organization and to the selection of representatives of their own choosing for collective bargaining without restraint or coercion. National Labor Relations Bd. v. Jones & L. Steel Corp., supra (301 U.S. p. 33, 57 S.Ct. 615, 81 L.Ed. 909, 108 A.L.R. 1352). To assure that protection, the employer is not permitted to discharge his employees because of union activity or agitation for collective bargaining. Associated Press v. National Labor Relations Bd., 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953, supra. The conduct thus protected is lawful conduct. Congress also recognized the right to strike, — that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands. Section 13 provides that nothing in the Act “shall be construed so as to interfere with or impede or diminish in any way the right to strike.” But this recognition of “the right to strike” plainly contemplates a lawful strike,-the exercise of the unquestioned right to quit work.

306 U.S. at 255-256, 59 S.Ct. at 496, 83 L.Ed. at 635 (emphasis added).

In International Union, U. A. W. v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949), overruled on other grounds, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976), the court added:

As to the right to strike, however, this Court, quoting the language of § 13, has said, 306 U.S. 240, 256, 59 S.Ct. 490 [496, 83 L.Ed. 627, 635,], 123 A.L.R. 599, “But this recognition of ‘the right to strike’ plainly contemplates a lawful strike,-the exercise of the unquestioned right to quit work,” and it did not operate to legalize . a strike ... in violation of a contract made pursuant thereto.

336 U.S. at 259-260, 69 S.Ct. at 524, 93 L.Ed. at 666 (emphasis added).

Settlement of labor disputes by arbitration rather than by strike is the underlying principle of federal labor law. As the United States Supreme Court has stated:

[A] strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement. ... To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbitral process as a substitute for economic warfare.

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95 at 105, 82 S.Ct. 571 at 577, 7 L.Ed.2d 593 at 600 (1962) (emphasis added).

At least one state court has found that employees who were discharged for striking in the presence of a union contract which provided that all disputes be settled by arbitration were discharged for misconduct under the state unemployment compensation law. Weimer v. Unemployment Compensation Board of Review, 176 Pa.Super. 348, 107 A.2d 607 (1954). There the mere provision for arbitration as the exclusive means of dispute resolution was held to imply a no-strike promise, the breach of which constituted misconduct. See also Bogue Electric Co. v. Board of Review, 21 N.J. 431, 122 A.2d 615 at 618 (1956), where the contract contained an express no-strike clause.

Furthermore, the Third District, in Butcher v. Florida Industrial Commission, supra, indicated that, at least where the striking employees had been directed to cease their unlawful strike and return to work by a court order, their discharge for refusing to do so would not operate to entitle them to unemployment compensation, citing Section 443.06(1), which disqualifies an individual for benefits if he has voluntarily left his employment without good cause attributable to his employer or has been discharged for misconduct connected with his work.

We cannot uphold an award of unemployment compensation benefits to an employee who suddenly decides to walk off the job, leaving his employer holding the proverbial bag, when he does so of his own free will in intentional violation of a specific no — strike clause in the collective bargaining agreement between his union and his employer.

We do not hold, however, that an employee’s mere participation in an unlawful strike always constitutes misconduct as a matter of law. That issue is not before us. The offending employee may be unaware that the strike is unlawful or may participate out of fear of retaliation from other union members should he cross the picket line. However, the appeals referee made no such findings here; in fact, he affirmatively found that claimant Davila was well aware of the no-strike clause of his union’s contract with appellant and had received no less than three prior warnings for similar misconduct. The referee’s finding that Davila was discharged for misconduct was supported by competent, substantial evidence. The Commission was therefore required to uphold the referee’s decision and erred in reversing his finding. Board of County Commissioners v. Florida Department of Commerce, Division of Employment Security, 370 So.2d 1209 (Fla.2d DCA 1979); C. F. Industries, Inc. v. Long, 364 So.2d 864 (Fla.2d DCA 1978).

Accordingly, the decisions of the Commission in all three of these consolidated cases are REVERSED.

OTT and RYDER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glen CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1126.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1980.
    Rehearing Denied Oct. 20, 1980.
   PER CURIAM.

Glen Chambers appeals from the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. His motion alleges that he did not receive effective assistance from his privately retained trial counsel. The circuit court summarily denied the motion on the basis that inadequacy of privately retained counsel cannot provide the basis for post-conviction relief.

We recognize that the trial court was without benefit of a recent United States Supreme Court decision, Cuyler v. Sullivan, -U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), in which the Court held that ineffective assistance of privately retained counsel, as well as appointed counsel, can provide grounds for federal habeas corpus relief. In an opinion written by Justice Powell, the Court reasoned:

A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. . . . Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.

100 S.Ct. at 1716.

Applying Cuyler v. Sullivan, we hold that appellant’s allegations of ineffective assistance of privately retained counsel facially state grounds for post-conviction relief. Accordingly, we have reviewed the transcript of appellant’s trial and have determined that nothing therein shows that appellant did not receive reasonably effective assistance of counsel. Meeks v. State, 382 So.2d 673 (Fla.1980).

The order denying appellant’s motion for post-conviction relief under Rule 3.850 is affirmed.

HOBSON, Acting C. J., and OTT and CAMPBELL, JJ., concur.


author:
PER CURIAM.
      DANIEL S. PEARSON, Judge,

text:
    SUNSHINE KITCHENS, INC., Appellant, v. Joel MALLIN, Mark Kay, American Home Assurance Company, Gulf Insurance Company and Lawrence Suslow, Appellees.
    Nos. 79-969, 79-1735.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Nov. 5, 1980.
    Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Fowler, White, Burnett, Hurley, Ban-ick & Strickroot and Michael J. Cappucio, Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final summary judgment under review is affirmed upon a holding that there are no triable claims on this record for legal malpractice and other related actions because (a) the sole genuine issue of material fact argued by the plaintiff in the court below [namely, whether the defendants obtained a self-amortizing lease for the plaintiff as requested] was not raised by the plaintiff’s operative complaint as amended, was not sought to be raised by any proposed amendments to said complaint, and was, in our view, immaterial based on this record in that the claimed variance regarding the lease was insubstantial and, in any event, led to no consequential injury to the plaintiff, and (b) the balance of the issues of fact now asserted as genuine and material by the plaintiff upon this appeal were not raised in its operative complaint as amended, were not argued in the court below and, indeed, were abandoned by implication at the hearing on the motions for summary judgment below, and were, in our view, immaterial based on this record in that the acts now claimed to be malpractice, breach of contract, and fraud were, in part, known to and approved by the plaintiff and, in any event, led to no consequential injury to the plaintiff. Weiner v. Moreno, 271 So.2d 217 (Fla.3d DCA 1973).

The order awarding $386 in costs for air fare for counsel to attend depositions in reversed and the cause is remanded to the trial court with directions to vacate such cost order upon a holding that such air fare expenses are not taxable costs. Butler v. Borowsky, 120 So.2d 656, 660 (Fla.3d DCA 1960).

Affirmed in part; reversed in part.

DANIEL S. PEARSON, Judge,

concurring in part and dissenting in part.

I concur in the majority’s reversal of the order awarding air fare expenses as taxable costs. I must, however, respectfully dissent from the majority’s affirmance of the final summary judgment entered in favor of the defendants.

The extensive record below fairly reflects the existence of a genuine and material issue of fact as to whether the computers which the individual defendants obtained for the plaintiff would qualify as “tax shelters” as these defendants assured. Specifically, there was some evidence developed below that Sunshine was not the first purchaser of the computers and that this fact was not made known to Sunshine when it invested more than a half-million dollars to purchase the computers. The materiality and injurious nature of this is that if Sunshine was not the first user of the computers, then according to Sunshine’s contention, it would not be entitled to use a declining balance method of depreciation on the property and tax shelter benefits would be nonexistent.

I do not agree with the majority that the issue was either abandoned or immaterial or that it would not lead to injury to the plaintiff. It is true, as the majority states, that this issue was not raised in the operative complaint as amended. That omission, however, in not fatal to the plaintiff. Where the record establishes that a plaintiff may have a viable claim if properly pleaded, the plaintiff is to be afforded an opportunity to amend the complaint. Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971); Greenburg v. Johnston, 367 So.2d 229 (Fla.2d DCA 1979); Dal-camp, Inc. v. First National Bank of Hialeah, 366 So.2d 153 (Fla.3d DCA 1979); Rauch, Weaver, Millsaps & Co. v. Campbell-Dickey Marketing Services, Inc., 354 So.2d 403 (Fla.4th DCA 1978); Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976). The plaintiff’s failure to request leave to amend is not an impediment to that relief. Gold Coast Crane Service, Inc. v. Watier, supra.

Accordingly, I would affirm the summary judgment and remand the cause with directions that the plaintiff be permitted to further amend its complaint within a time to be fixed by the trial court.

      . This contention was not resolved in the trial court. The expert testimony adduced by the defendants did not address this issue. The record reflects that the Internal Revenue Service audited and approved the transaction, but did so in the belief that Sunshine was a first user.

      . Internal Revenue Code Section 167 allows a taxpayer to deduct depreciation on “property held for the production of income” using a declining balance method if, inter alia, “the original use of such property commences with the taxpayer.”

        .Gold Coast Crane Service, Inc. v. Watier, supra, dictates this form. We may have overlooked this in Dorset House Association, Inc. v. Dorset, Inc., 371 So.2d 541 (Fla.3d DCA 1979), and Keyes Company v. Executive Center, Inc., 311 So.2d 734 (Fla.3d DCA 1975), where we reversed the summary judgment.


author: DANAHY, Judge.

text:
    Mary Kathryn FOX, f/k/a Mary Kathryn Haislett, Appellant, v. Benton Myron HAISLETT, Appellee.
    No. 79-1731.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 20, 1980.

      Paul H. Amundsen and Susan E. Trench of Peeples, Earl, Smith, Moore & Blank, P.A., Miami, for appellant.
    Thomas E. Reynolds and Edward D. Foreman, St. Petersburg, for appellee.
   DANAHY, Judge.

Both the mother and the father are unhappy with, and challenge on this appeal, a post-judgment ordered entered by the trial judge concerning the extent of the father’s obligation to pay the tuition and fees at a private school in which the parties’ minor child is currently enrolled. We agree with the mother that the trial judge improperly modified the provisions in the final judgment of dissolution of marriage requiring the father to pay such expenses, and we reverse.

The marriage of the parties was dissolved by a final judgment entered on October 8, 1971. That final judgment incorporated an agreement between the parties which provided that the father would pay $250.00 per month as child support for the parties’ one minor child, a daughter. Custody of the daughter was given to the mother. The dispute in this case concerns the following paragraph of the agreement:

13. PRIVATE EDUCATION FOR CHILD: The parties hereto desire that the child of the parties shall receive a private education in private schools in the State of Florida or other states where the child might reside. The [father] agrees that he shall pay all fees and tuitions necessary to maintain said child in the private education and which is contemplated to begin with kindergarten of this year.

The minor child, Kelly, attended a private school during kindergarten and the first, second and third grades. The father paid the tuition during these years, which was approximately $350.00 for the year of kindergarten and $1,000 for each of the first, second and third grades.

Kelly then moved with her mother to Gainesville and was enrolled in a private school there for the fourth grade. The father paid the tuition and fees for that year, which were approximately $1,000.00. After the fourth grade, however, Kelly’s mother transferred her to a public school in Gainesville because she believed that the private school was not much better than the public school. Kelly attended public school in Gainesville for the following two years.

When Kelly was about to enter the seventh grade, she and her mother moved to Miami. There Kelly attended a public school during the fall semester of her seventh grade. The mother testified that during this semester, Kelly’s grades dropped from A’s and B’s to C’s and D’s, and there were drastic changes in her social behavior. For these reasons, the mother decided to enroll Kelly in a private school for the spring semester of seventh grade, and notified the father of this decision. The mother testified that she shopped around for a suitable private school and found that many would not accept the child due to religious affiliation or lack of space. She finally selected the Carrollton School, where the tuition is in excess of $2,300.00 per year. That amount is less than the tuition at some private schools investigated by the mother and higher than that at some other schools.

When the mother demanded that the father pay the tuition at the Carrollton School, he refused to do so. The mother then initiated these proceedings by filing a motion asking that the father be held in contempt of court for his failure to abide by the provisions in the final judgment regarding Kelly’s private education.

The father’s response asserted three defenses: (1) that the mother was estopped to assert or enforce the provisions of the final judgment regarding Kelly’s private education because she had agreed to a modification of those provisions; (2) that the parties had agreed that Kelly’s education would be pursued in public rather than in private schools and this agreement modified the provisions of the final judgment by relieving the father of any further obligation to pay the expenses of a private education; and (3) that the tuition and fees at the Carrollton School were unreasonable, excessive, and beyond the intent of the parties when they originally agreed that the father would pay the costs of a private education for Kelly.

The trial judge heard the testimony of both parties, which revealed their disagreement on the question whether Kelly should receive a private education at this point in her schooling. The father, who has remarried and has another daughter in school (public), has changed his mind on the benefits of a private education and expressed the belief that Kelly would be better off in a public school. After considering all the evidence presented, the trial judge entered the order from which this appeal is taken. That order first recited that the mother’s motion for contempt was denied. It then recited that the father’s petition for modification of the final judgment was denied, although the father had filed no such petition. The order then recited the following:

ORDERED AND ADJUDGED that the [father] shall not be responsible for any of the educational expenses of the minor child in the Carrollton School which she is presently enrolled for the current semester which began January 1, 1979, as said enrollment was accomplished by the wife over the objection of [the father] after an extended period of public education of said minor child. It is further
ORDERED AND ADJUDGED that [the father] shall be responsible for tuition and fees of the minor child of the parties beginning with the school year which commences in the fall of 1979. The obligation of the [father] for tuition and fees shall in no event exceed the tuition and fees at the school in Gaines-ville, Florida, where said child was previously enrolled and where said child was enrolled at the time of entry of the Property Settlement Agreement by the parties, and which fees were therefore within the contemplation of the parties at the time they entered into the Property Settlement Agreement in this cause.

The trial judge no doubt selected a means of resolving in some fair manner the dispute between the mother and father concerning the expenses of Kelly’s private education, but in so doing he neglected to apply the correct rules of law. Those rules take into consideration the interests of the minor child and her rights under the provisions of the final judgment.

At the threshold, we reject the father’s argument that the provisions in the final judgment concerning Kelly’s private education do not fall into the category of “child support” and thus are not governed by the rules of law pertaining to the enforcement and modification of child support provisions. A parent’s obligation to his minor child includes the obligation to provide for the child’s education. Finn v. Finn, 312 So.2d 726 (Fla.1975). Therefore, provisions for education are a proper element in an allowance for the benefit of a minor child in a final judgment of dissolution of marriage. Rouse v. Rouse, 313 So.2d 458 (Fla. 3d DCA 1975); Annot., 56 A.L.R.2d 1207 (1957). In our view, the issues in this case clearly involve a matter of child support.

The first rule which the trial judge should have recognized is that he has no authority to cancel or reduce a past-due installment of child support. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Petrucci v. Petrucci, 252 So.2d 867 (Fla. 3d DCA 1971). Modification of child support provisions may not be retrospective in application. Therefore, the trial judge erred in relieving the father of any obligation to pay those educational expenses at the Carrollton School already incurred by reason of Kelly’s enrollment in that school.

We recognize the rule that matters of avoidance, such as estoppel, are a valid defense in an action to enforce past-due installments of child support. Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974); Hurst v. Hampton, 274 So.2d 891 (Fla. 4th DCA 1973). Additionally, in extraordinary or compelling circumstances, a court may decline to enforce such a past-due obligation. Pottinger v. Pottinger, supra; Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967). In this case, however, we find no evidence supporting the father’s claim of estoppel, nor do we find any evidence of extraordinary or compelling circumstances.

This does not mean, however, that the trial judge abused his discretion in denying the mother’s motion to hold the father in contempt. The imposition of contempt as a sanction against a party defaulting in the payment of child support is a discretionary matter, not a matter of right. The trial judge may apply equitable considerations and those considerations in this case support the trial judge’s decision not to impose the extreme sanction of contempt. Pottinger v. Pottinger, supra; Warrick v. Hender, supra; Boyle v. Boyle, 194 So.2d 64 (Fla. 3d DCA 1967).

Insofar as the trial judge’s decision limiting the father’s obligation for future educational expenses is concerned, it was erroneous insofar as it purported to modify the educational expense provisions of the final judgment. In the first place, a trial judge is without authority to modify child support provisions where no pleading is filed directed to modification. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Smithwick v. Smithwick, supra. The father filed no petition herein or other pleading which might be construed as a request for modification.

Furthermore, a fundamental prerequisite to modification of child support payments is a showing of a substantial change of circumstances, including financial circumstances, of one or both parties. Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979). The party seeking modification has the burden of showing such a change in circumstances. No such showing was made in this case. On the contrary, the father relies on the argument that modification was accomplished by an agreement of the parties that Kelly should receive a public rather than a private education; therefore, the father argues, the trial judge erred in requiring him to pay tuition in any amount for Kelly.

Our initial reaction is to question the validity of an agreement such as that which the father alleges was reached in this case. The third district court of appeal has indicated that parents may validly agree to reduce or eliminate child support previously ordered. Wiener v. Wiener, 343 So.2d 1319 (Fla. 3d DCA 1977).. On the other hand, the first district court of appeal has emphatically rejected that proposition. In Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979), the court said:

[T]he existence of an agreement . purporting to relieve the husband of child support payments, may be a relevant factor going to the willfulness of the husband’s failure to pay, but does not affect the obligation of child support as such. The law is clear that the parents may not contract away the rights of their child for support. Neither may the mother waive the child’s right to support by acquiescing in the father’s non-payment of support. Child support is a right which belongs to the child. It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.

The fourth district court of appeal has stated a similar-view. Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971). That court had previously expressed these thoughts, with which we are inclined to agree:

The power of the parties to modify by agreement or for one party to waive or otherwise be deprived of the provisions of child support in a divorce decree is subject always to the supervision and scrutiny of the court and will be given sanction and recognition only if the best interests of the child or chiidren are fully served. An agreement, either express or implied, which purports to relieve a father of his duty to support a minor child entirely and permanently offends against public policy and is void. However, the mother and father may as between themselves validly agree, expressly or impliedly, that one rather than the other shall provide or procure the proper support if the best interests of the child are served thereby. (emphasis added)

Warrick v. Hender, supra, at page 351.

But in this case we need not address the question whether post-judgment modification of child support by agreement is valid and effective, because we find a total lack of proof establishing an agreement between the parties to modify the educational provisions in the final judgment as contended by the father. Therefore, we reject the father’s argument that the trial judge should have relieved him entirely of any obligation to pay the expenses of a private education for Kelly.

The father is quite correct, however, in his contention that the provision in the final judgment for payment of the tuition and fees for private education should not be interpreted as unlimited and require him to pay tuition and fees at a private school no matter how outrageously expensive the school might be. We agree with the proposition that a provision requiring a father to pay tuition, with no limitation expressed, should be construed to require the payment of tuition in a reasonable amount. Norreil v. Norreil, 236 Ga. 797, 225 S.E.2d 305 (1976). We disapprove of the trial judge’s determination that the tuition at the last private school attended by Kelly in Gainesville measures the extent of the father’s obligation because those fees were within the contemplation of the parties at the time they entered into the agreement which was incorporated in the final judgment. There is no support in the record for such a determination.

We reverse and remand with directions that the trial judge determine whether the tuition and fees at the Carrollton School, where Kelly is presently enrolled, are reasonable in amount and, if not, what amount of tuition and fees would be reasonable for Kelly to receive an acceptable private education in Miami. After making that determination, as to which he may receive additional evidence, the trial judge shall enter an appropriate order limiting the father’s obligation to that amount of tuition and fees found to be reasonable, subject to modification upon a showing of a substantial change in the circumstances upon which the trial judge based his determination of reasonableness.

REVERSED AND REMANDED WITH DIRECTIONS.

HOBSON, Acting C. J., and RYDER, J., concur.

      . Cases dealing with the validity and effect of agreements between former spouses relieving the father from further payment of child support provided in an earlier decree are collected in an annotation at 57 A.L.R.2d 1139 (1958).


text:
    William T. ROBERTS as Pinellas County Sheriff, et al., etc., Appellants, v. Brenda STOKLEY, etc., Appellee.
    No. 80-430.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 20, 1980.
    Chris W. Altenbernd, Tampa, James B. Thompson and Mark E. Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellants.
    o Edwin J' Brafe* of ^ & Henniger’ St. Petersburg, for appellee.
   PER CURIAM.

Stokley’s husband committed suicide in the Pinellas County jail. Stokley sued Roberts, the Pinellas County Sheriff, contending that the Sheriff “negligently, recklessly or willfully, failed to take the precautions or make the supervision necessary in the exercise of reasonable care to prevent Mark Stokley from injuring himself when [the Sheriff] knew or should have known that he was likely to commit suicide.” Subsequently, Stokley moved for summary judgment as to liability contending that the Sheriff’s violation of an administrative rule of the Department of Health and Rehabilitative Services applicable to the jail constituted negligence per se. The trial court granted the motion and the Sheriff filed this appeal.

We have some reservations over whether the violation of the administrative rule constituted negligence per se; we need not reach that issue, however. Stokley submitted several affidavits in support of her motion for summary judgment. These established that the Sheriff was negligent in failing to follow a physician’s instructions on precautions designed to prohibit Stok-ley’s husband from committing suicide, and that the Sheriff’s negligence was a legal cause of Stokley’s death.

The Sheriff failed to contravene these affidavits. As stated in Perry v. Langstaff, 383 So.2d 1104, 1105 (Fla. 5th DCA 1980), “[o]nce the movant for summary judgment has met his initial burden of tendering competent evidence demonstrating the nonexistence of any genuine issue of material fact, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue.” Therefore, no genuine issue of material fact remained for the trier of fact.

Consequently, the trial court properly granted summary judgment to Stokley. We affirm.

SCHEB, C. J., and GRIMES and OTT, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    DOLPHIN TOWERS CONDOMINIUM ASSOCIATION, INC., a Florida Corporation not for a profit, Appellant, v. Donald J. DEL BENE and Virginia Del Bene, Appellees.
    No. 80-1070.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 21, 1980.
    Wayne C. Hall of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Venice, for appellant.
    Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Sarasota, for appellees.
   HOBSON, Acting Chief Judge.

The issue of this appeal is whether, on voluntary dismissal of a unit owner’s action against a condominium association, the condominium association becomes the prevailing party for purposes of an award of attorney fees under Section 718.303, Florida Statutes (1979). We answer in the affirmative, and reverse the circuit court’s order denying the condominium association/defendant’s motion for attorney fees.

Appellees, the Del Benes, are owners of a condominium unit in the Dolphin Towers Condominium. Appellant is the condominium association. Appellees sought declaratory relief and a mandatory injunction requiring the association to remove a redwood trellis and six trees from the recreational area of the condominium. The condominium association raised the affirmative defense of failure to join as an indispensable party the owner of the improvements that the Del Benes wished removed. It also counterclaimed for a reasonable attorney fee in the event that it was determined to be the prevailing party. The case proceeded to nonjury trial, which was continued because of insufficient time to complete the presentation of evidence. Subsequently the Del Benes voluntarily dismissed the action pursuant to Florida Rule of Civil Procedure 1.420(a)(1). The condominium association moved for an award of attorney fees as the prevailing party under Section 718.303(1). Following a hearing, the lower court denied the motion. The following day, the Del Benes filed a new action against the condominium association, which was the same as the first action except that the owners of the improvements were joined as party defendants.

Section 718.303(1), Florida Statutes (1979), provides that in an action by or against a condominium association, “the prevailing party is entitled to recover reasonable attorney’s fees.” The condominium association, defendant in the lower court, contends that when the Del Benes voluntarily dismissed their action, the association became the “prevailing party” within the meaning of Section 718.303(1) and was therefore entitled to an award of attorney fees. We agree.

Although there has been no judicial interpretation of the term “prevailing party” as used in Section 718.303(1), Florida courts have construed Section 713.29, Florida Statutes (1979), an analogous provision in the Mechanics’ Lien Statute. That section provides in pertinent part:

In any action brought to enforce a lien, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney

All courts which have construed the above section under facts similar to the instant case have held that where a mechanics’ lien claim is voluntarily dismissed, the party against whom the claim was brought is the “prevailing party” and is entitled to recover attorney fees. Gordon v. Warren Heating & Air Conditioning, 340 So.2d 1234 (Fla. 4th DCA 1976); Marden Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974); Lion Oil Company, Inc. v. Tamarac Lakes, Inc., 232 So.2d 20 (Fla. 4th DCA 1970). We hold that the term “prevailing party” in Section 718.303(1) of the Condominium Act should likewise be construed to include a defendant against whom a voluntary dismissal is taken.

Further, the fact that the Del Benes filed a new suit stating the same cause of action does not affect the condominium association’s entitlement to attorney fees. The association incurred attorney fees in asserting what proved to be a meritorious affirmative defense, in preparing for trial, and in participation in a trial before the Del Benes voluntarily dismissed the suit. We believe that the legislature must have had this situation in mind, as well as those in which a defendant might prevail on the merits, when it provided for the allowance of attorney fees to the prevailing party.

Accordingly, the order appealed is reversed and the cause remanded for the purpose of holding a hearing directed to the award of attorney fees to the condominium association.

GRIMES and CAMPBELL, JJ., concur.


text:
    Goldie TOPPER, as Personal Representative of the Estate of Sarah Liptzen, Appellant, v. Joyce STEWART, Phyllis Stone, Shirley Zion, et al., Appellees.
    No.79-1087.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Rehearing Denied Nov. 5, 1980.
    Ginsberg & Goldman and Burton Ginsberg, North Miami Beach, for appellant.
    Markus & Winter and Laurie S. Silvers, Miami, for appellees.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Plaintiff, Goldie Topper as personal representative of the Estate of Sarah Liptzen, appeals a final judgment upholding the validity of an antenuptial agreement.

Sarah and Sam Liptzen were married on July 7,1963. Both parties, being of mature age with grown children from previous marriages and having acquired certain real estate assets and other property, entered into an antenuptial agreement on June 26 prior to their marriage. The agreement provided in pertinent part:

“NOW THEREFORE, IT IS AGREED AS FOLLOWS:
“1. In case SAM LIPTZEN shall predecease SARAH GROSS, then and in such case, she is to receive from his estate, the sum of $10,000.00. This provision is made especially contingent upon SARAH GROSS being the wife and not separated from SAM LIPTZEN at the time of his death.
* * * * * *
“6. The said SARAH GROSS, agrees that she has no rights, including the right of dower, in any real estate now owned by SAM LIPTZEN. However, said SAM LIPTZEN agrees that any property he purchases after the marriage of said parties, that the same be placed jointly in the names of the said parties as tenants by the entirety, subject to all the incidents of ownership as such tenants by the entirety.”

Sam died on October 26, 1976 and Sarah passed away shortly thereafter on November 16. Subsequently, Goldie Topper as personal representative of Sarah’s estate filed in circuit court the present action seeking an interpretation of the estate’s rights under the antenuptial agreement, or, in the alternative, a voiding of the agreement for Sam’s alleged failure to make full and fair disclosure to Sarah. Following a nonjury trial, the court found no evidence to support the allegation of nondisclosure and entered a final judgment upholding the validity of the agreement. Goldie Topper appeals therefrom.

Sam Liptzen having died in October 1976, we find that Section 732.702, Florida Statutes (1975, effective January 1, 1976) is controlling and, therefore, disposi-tive of this appeal. See Reed v. Reed, 354 So.2d 864, 866 (Fla.1978). Specifically, subsection 2 of the statute clearly states:

“732.702 Waiver of right to elect and of other rights-
* * * * * *
“(2) Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.” [Emphasis Supplied]

Accordingly, we affirm the determination of the trial court that the antenuptial agreement is valid. (Nevertheless, we hasten to point out that Section 732.702, Florida Statutes (1975) is part of the Probate Code and, therefore, would not be applicable to antenuptial agreements which are involved in dissolution of marriage actions.)

With respect to the contention that Sam Liptzen failed to place certain real and personal property acquired during his marriage to Sarah in joint names as required by the agreement, we believe that question should be determined by the probate division of the circuit court.

In light of our disposition of the disclosure issue, we need not consider the remaining points on appeal. Thus, we affirm the final judgment of the court below.

Affirmed.

      . See Roberts v. Roberts, 388 So.2d 216 (Fla.1980), upholding the constitutionality of the statute.


author: ANSTEAD, Judge.

text:
    Frederick Marsh BLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2518.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Nov. 12, 1980.

      Geoffrey C. Fleck of Kogen & Kogan, P. A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final judgment finding Frederick Blanton guilty of aggravated assault with a shotgun and imposing a minimum mandatory sentence of three years’ imprisonment followed by two years’ probation. On appeal Blanton challenges the sufficiency of the evidence and the legality of his sentence.

At approximately 2:00 p. m. on February 24, 1978, Detective Scotti and Officer Lea-hey of the Fort Lauderdale Police Department, pursuant to a police investigation, proceeded to the home of Dr. Frederick Blanton. The officers pulled onto the Blan-ton property just as Dr. and Mrs. Blanton were alighting from their car. The policemen were driving a pickup truck and were dressed in casual clothes. Detective Scotti had met Dr. Blanton and his wife twice before in the preceding year and each time Scotti was dressed similarly. On one occasion Detective Scotti had also been to the Blanton home and had seen Dr. Blanton in possession of a shotgun.

The officers testified that Officer Leahey took out his badge and identified himself and Detective Scotti as policemen. Mrs. Blanton got out of the car and addressed Detective Scotti by name. Dr. Blanton walked directly from his car into his home, turning at one point to look at the officers, but otherwise did not acknowledge their presence. Within seconds, Dr. Blanton appeared at the front door, carrying a shotgun, dropped to one knee, pointed the shotgun at Detective Scotti, who was 30 feet away, and said, “I’ve got five shots in this gun, and if you don’t get off my property, I’ll blow your heads off!” Detective Scotti testified that he was in fear of his life. The two officers backed up, walking off the Blanton property. Dr. Blanton was arrested shortly thereafter.

Mrs. Blanton corroborated most of the testimony of the officers, but she denied that Officer Leahey had identified himself upon arrival. She also testified that her husband had a hearing impediment and probably would not have recognized Detective Scotti from his previous visit.

There was expert psychiatric testimony that Dr. Blanton was a paranoid schizophrenic and did not know right from wrong. That testimony was rebutted by another psychiatrist, who examined Dr. Blanton on the state’s behalf.

Dr. Blanton was tried by the court without a jury and convicted of assaulting Detective Scotti with a deadly weapon, without intent to kill, in violation of Section 784.021, Florida Statutes (1977). He was sentenced to a mandatory minimum three year sentence pursuant to Section 775.087, Florida Statutes (1977), to be followed by two years probation. The trial court expressed concern about the fairness of the sentence and stated that he would not have imposed as severe a sentence had he not been legally bound to do so by the mandatory provisions of Section 775.087.

. Initially, Dr. Blanton maintains that the state failed to establish one of the essential elements of the crime of aggravated assault, namely the existence of an act which creates a well-founded fear in another person that violence is imminent. He contends that the conditional nature of his threat precluded Detective Scotti’s fear of imminent violence from being well founded.

In a case involving circumstances very similar to those involved herein, it has been held that the conditional nature of the accused’s threat did not preclude the establishment of an aggravated assault. State v. Smith, 348 So.2d 637 (Fla.2d DCA 1977). The lower court had held that the statement, “You step foot inside this house and I’ll shoot you,” addressed to police officers, was a conditional threat and therefore dismissed the case. The Second District reversed, stating:

In our view the nature of the threat as conditional should have been regarded as evidence going to the issue of whether Deputy Rolling had a well-founded fear that violence was imminent. Though the conditional nature of the threat may well have lessened the probability that Deputy Rolling had a well-founded fear, the evidence was not such that the trial court could have concluded, as a matter of law, that Rolling did not have such a well-founded fear, (footnote omitted)

Likewise, we believe here that the court’s finding that Dr. Blanton’s conditional threat and pointing of a shotgun placed Detective Scotti in fear of imminent harm, was not contrary to the law and was sufficiently supported by the evidence. In our view the facts of this case would support an even greater fear of imminent peril than the facts involved in Smith. In Smith the officers were told that they would be shot only if they entered the defendant’s home. In other words, the officers would not be harmed if they simply stayed where they were. Here, the officers’ safety was jeopardized if they stayed where they were; they were told their heads would be blown off unless they left the property. Since Dr. Blanton appeared to have the capability to carry out his threat immediately, it certainly cannot be said that Detective Scotti could not have a well-founded fear that he was about to be shot.

Dr. Blanton also relies on the case of Bailey v. State, 76 Fla. 230, 79 So. 639 (1918) for the proposition that a conditional threat does not support a well founded fear of harm. However, it appears that assault as defined in Bailey and assault as defined by the legislature are not exactly the same. Assault as defined by Section 784.011, Florida Statutes (1977) consists of an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. This is not the same offense as that described in Bailey:

An assault is an intentional attempt by violence to do an injury to the person of another. There must be an attempt to carry the intention into immediate execution, else it falls short of an actual assault.

The Bailey opinion does not address the issue raised by appellant herein and we do not believe Bailey is controlling.

Dr. Blanton also claims that the officers were trespassers and that he was not aware of their identities. However, there is evidence to support the trial court’s findings to the contrary.

It is next contended that the court’s application of the minimum mandatory sentence provision of Section 775.087(2), Florida Statutes (1977) unlawfully enhanced Dr. Blanton’s punishment and such application is therefore unconstitutional. First, we note that these two issues were not properly preserved for appellate review. These issues were not raised in the court below until after an appeal had been filed. Both issues were raised in post-trial motions filed in the trial court during the pendency of this appeal. Although it is true that in each instance this court granted motions to temporarily relinquish jurisdiction to the trial court so the appellant could proceed on his motions, our orders in no way relieved the appellant from filing a notice of appeal from any subsequent orders entered on such motions.

In addition we note that the Supreme Court has specifically upheld the constitutionality of Section 775.087(2) in Sowell v. State, 342 So.2d 969 (Fla.1977). Also see Rummell v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Thus, even if the matter were properly before us, we would be bound by the Sowell decision to uphold the statute. Under Sowell, the remedy of the appellant, if indeed any remedy is available as to the alleged unfairness of the mandatory sentence imposed, rests with the legislature and not the courts. State v. Sesler, 386 So.2d 293 (Fla.2d DCA 1980).

As to the issue of enhancement, it is clear that the two subsections of Section 775.087 serve two different functions. Subsection (1) provides for reclassification of a felony to a higher degree where a weapon or firearm was used and the use of the weapon has not already resulted in the offense being upgraded to a higher degree. Dr. Blanton is correct in asserting that subsection (1) cannot apply to the crime of aggravated assault since aggravated assault itself carries a higher punishment because of the use of a weapon. See Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). However, subsection (2) does not increase the punishment but rather provides for mandatory minimum imprisonment for a person who has been convicted of aggravated assault while possessing a firearm. It does not reclassify the offense to a higher degree or authorize any greater maximum penalty for the crime of aggravated assault, which remains a third degree felony punishable by a maximum term of imprisonment of five years.

Accordingly, the judgment and sentence of the trial court are affirmed.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . “If a defendant states that he will inflict an injury unless the victim complies with a certain condition, which he has no right to impose, an assault is committed whether or not the victim complies with the condition.” 2 Wharton, Criminal Law, p. 304 (14th Edition 1979).


author: DOWNEY, Judge.

text:
    Cathy KELLNER, Appellant, v. Peter A. KELLNER, Appellee.
    No. 78-2640.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Nov. 7, 1980.

      H. T. Maloney of Patterson, Maloney, Blyler & Feigs, Fort Lauderdale, for appel-an^'
    Haiman Long Clein, North Miami, for appellee.
   DOWNEY, Judge.

Appellant poses two points for our consideration in an appeal from a final judgment of dissolution. The first point suggests error in awarding the husband 85% interest in realty which had been jointly owned. The second point complains of the denial of rehabilitative alimony.

The parties were married for six years. The wife holds a Master’s Degree in Library Science and currently earns approximately $10,000 per year. The parties jointly owned the marital residence and the Sunflower Shopping Center. The evidence reflects that the husband furnished over $100,000 from funds unrelated to the marriage. In addition, he obtained loans used in the shopping center, some of which ultimately were paid off by using other of his assets. The wife’s contribution to the property was minimal, particularly in view of her testimony that she took back from the parties’ joint savings account the $3,000 that she had put into the shopping center. The wife also testified that she never knew the title to the shopping center was in her name also until her lawyer told her when these proceedings commenced. The husband testified that no gift was ever intended, and the wife did not rebut that.

Our scrutiny of the record convinces us that there is substantial competent evidence in the record to support the trial judge’s determination of the value of appellee’s special equity in the shopping center. In fact, it would appear the trial judge was generous in the determination of the wife’s interest. In addition, we find no error demonstrated in the refusal to award rehabilitative alimony to the wife.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.


text:
    Gerald EATON, as Personal Representative of the Estate of K. W. Van Landingham, Gerald R. Schommer; and Ronald W. Van Landingham, Appellants, v. Blair MADSEN; Lawrence R. Giacin; Russell L. Bailey; Richard C. Finucan; Harry R. Padula; J. William Watkins; and Broward County, Appellees.
    No. 79-155.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 21, 1980.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider and Mager, Hollywood, for appellants.
    Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for appellees.
   PER CURIAM.

This litigation, involving the creation of an easement, turns upon the interpretation of the term “abutting property owners.” Our research has failed to disclose any Florida cases which define “abut” when it is used in a deed or other instrument creating an easement. Moreover, there seems to be no unanimity of opinion in other jurisdictions on whether “abut,” when used in a deed creating an easement, includes property at the end of, in addition to the side of, a roadway, alley or street. See the cases collected in Words and Phrases, Vol. I, p. 364, et seq. We therefore conclude that the deed conveying the easement in the instant case is ambiguous and that the proof submitted by the parties is in conflict as to whom the easement should benefit. That being the case, we conclude it was error for the issue to be resolved by summary judgment. Westchester Fire Insurance Company v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971); Commercial Trading Company v. Zero Food Storage, Inc., 199 So.2d 109 (Fla. 3d DCA 1967).

Accordingly, the cause is reversed and remanded for further proceedings consistent with this opinion.

ANSTEAD and HURLEY, JJ., concur.

RIVKIND, LEONARD, Associate Judge, dissents without opinion.


author: BARKDULL, Judge.

text:
    Roberta NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-526.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.

      Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   BARKDULL, Judge.

The appellant was charged by indictment with first degree murder and possession of a firearm in the commission of a felony. She went to jury trial, which resulted in her being found guilty of the lesser included offense of manslaughter and for possession of a firearm in the commission of a felony. Pursuant to her adjudication of guilt, she was sentenced to 12 years’ imprisonment on the manslaughter count and suspension of sentence on the possession count. Following the denial of her motion for a new trial, this appeal was prosecuted.

Police testimony at the trial included evidence that the appellant was in possession of the weapon used in the homicide and that there were no powder marks on the victim’s clothing, indicating that the victim was more than two feet from the gun at the time he was shot.

Following the denial of the defendant’s motion for judgment of acquittal after the conclusion of the State’s case, the defendant testified on her own behalf. She stated that the victim tended to be belligerent, to drink heavily, to pistol-whip her and draw a gun on her, and to strike her with various objects (e. g., a blackjack, a fish bowl, a picture frame, etc.). She further stated that on the afternoon of the subject shooting the victim had been drinking, had threatened her, and had looked for his gun. It was then that the defendant got her gun from the closet and went out the front door, whereupon she was followed and threatened by the victim, resulting in her backing away and slipping, causing the gun to discharge. She testified that she did not intend to shoot the victim, but that at the time “... he could have just got me in the next step or so.” Following the shooting, the defendant told her daughter to call the police and an ambulance. When the defendant attempted to testify at trial concerning a conversation between her and the victim prior to the arrival of the police, the prosecutor’s objection was sustained by the court. Testimony by the defendant concerning the fact that she threw the gun away after the shooting, resulted in the court’s sustaining another objection by the prosecution to any testimony concerning an explanation for the defendant’s action. There was also testimony to the effect that the victim had told the police, after they arrived on the scene, that what had occurred was not the defendant’s “fault” or her “doing”. With regard to a question posed to the defendant by the prosecution concerning the number of people who would be testifing on her behalf to substantiate the fact that the victim had a tendency to be violent and belligerent, defense counsel immediately objected and his objection was sustained but the court refused to give a curative instruction or to declare a mistrial because of the improper question.

The appellant contends, first, that it was error to deny the defendant’s request for a curative instruction and not to declare a mistrial where the prosecutor called the jury’s attention to the defendant’s failure to call certain witnesses. Second, that it was error to exclude, as hearsay, the defendant’s testimony of a conversation she had with the victim, where that testimony was offered to show the defendant’s state of mind induced by the victim’s statement and not to prove the truth of those statements. This testimony would have been highly relevant and was crucial to the defendant’s case, i. e., the defendant should have been permitted to explain that she threw the gun away, not to cover up the fact that she had intentionally shot the victim but, rather, because the victim had told her to dispose of the gun in the backyard.

Turning to the second point first, we find error in the failure to permit the defendant to testify as to what the victim told her immediately after the shooting. The defendant took the witness stand and testified in her own behalf. She admitted shooting the victim, but claimed that she had acted in self-defense. She testified that after she realized she had shot the victim, she ran back into the house and told her daughter to call the police and an ambulance. The defendant went on to testify that upon returning to where the victim had fallen, she had a conversation with the victim. As she began to testify as to what the victim had told her, the prosecutor objected and the trial judge sustained the objection, apparently because the victim’s statement would be hearsay. The defendant went on to testify that after her conversation with the victim she took the gun and threw it in the grass in back of the house.

The trial court erred in excluding the victim’s statement. It is a fundamental principle of the law of evidence that:

“If, ... an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply.” 6 Wig-more, Evidence § 1766 (Chadbourn rev. 1976).

Thus:

“Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned.” 6 Wigmore, Evidence § 1789 (Chadbourn rev. 1976)

Florida appellate courts have applied these fundamental principles in a number of cases similar to the instant case. In Brown v. State, 299 So.2d 37 (Fla. 4th DCA 1974), the court held that the trial court erred in excluding the defendant’s testimony concerning conversations that he allegedly had with a police informant. In So holding, the court pointed out that the statement of the police informant was offered, not to prove the truth of the matter asserted but, rather, to show the defendant’s state of mind and inducement of the police informant at the time of the alleged crime.

In Flynn v. State, 351 So.2d 377 (Fla. 4th DCA 1977), the court held that the trial. judge had improperly excluded the defendant’s testimony as to a discussion had between the defendant and a police informant involved in the setting up of a drug delivery. The court noted that the testimony was not offered to prove the truth of the informant’s statements, but to attempt to show the state of mind of the defendants. The court reversed and remanded for a new trial, stating that the defendants should be permitted to explain their motives and state of mind at the time of the alleged inducement.

In 194th Street Hotel Corporation v. Hoff, 383 So.2d 739 (Fla. 3d DCA 1980), this court held the trial court correctly admitted the plaintiff’s testimony regarding her conversation with her treating physician, recognizing that the testimony was solely for the purpose of showing the plaintiff’s state of mind and not to prove the accuracy or truth of its contents. The court recognized the rule that evidence of an out-of-court statement, to show its effect upon the mental attitude of the person who hears it, is properly admissible as an exception to the hearsay rule.

Similarly, in the instant ease the trial judge improperly excluded the defendant’s testimony as to her discussion with the victim after the shooting. The testimony was not offered to prove the truth of the victim’s statement; it was offered to show the effect of that statement on the defendant’s state of mind. Specifically, the testimony was offered to show that the defendant had thrown the gun in the grass in back of the house, because the victim had told her to do so. This testimony clearly was not hearsay and should not have been excluded as such.

Furthermore, it is clear that this testimony would have been highly relevant. The testimony was crucial to the defendant’s case; she testified that she shot the victim in self-defense. Left unexplained, the fact that she disposed of the gun after the shooting would tend to seriously undermine the defendant’s claim of self-defense. The defendant should have been permitted to explain that she threw away the gun, not to cover up the fact that she had intentionally shot the victim but, rather, because the victim had told her to dispose of the gun in the backyard. The erroneous exclusion of this testimony cannot be classified as harmless error. The defendant was the only eye witness to the homicide with which she stood charged. There was no question that the defendant shot the victim. The only issue to be decided by the jury was whether the defendant had fired the gun in self-defense.

The defendant testified that she shot the victim in self-defense, and there was no direct evidence to contradict the defendant’s version of the homicide. Thus, the State had to rely on circumstantial evidence to establish that the defendant had not shot the victim in self-defense. A key piece of circumstantial evidence, which might have convinced the jury to disbelieve the defendant’s version of the homicide, was the fact that the defendant had hidden the gun after the shooting.

In his closing argument to the jury, the prosecutor emphasized the defendant’s testimony as to what she had done with the gun. The prosecutor pointed out that in deciding whether to believe the defendant’s account of the shooting, the jury should consider the fact that the defendant hid the gun after the shooting. The defendant’s testimony that she hid the gun could have motivated the jury’s rejection of her version of the homicide. Her testimony that she hid the gun on orders from the victim would have allowed the jury to reconcile the hiding of the gun with the defendant’s claim of self-defense. The trial court erred in excluding the testimony.

As to the first point, the line of questioning and the methods used by the prosecution were improper under the following authorities: Kirk v. State, 227 So.2d 40 (Fla. 4th DCA 1969); see, also: Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975). We make this comment because this matter will be re-tried.

The conviction, adjudication, and sentence be and the same are hereby set aside, and this matter is returned to the trial court for a new trial.

Reversed and remanded, with directions.

      . While the prosecutor did not state the grounds for his objection, and the trial judge did not sustain the objection on any particular ground, it is clear from the record that the testimony was excluded as hearsay. When defense counsel attempted, in his opening statement to the jury, to relate what the victim said to the defendant, the prosecutor objected because the statement was hearsay and could not come into evidence and the objection was sustained. It is this same statement made by the victim to the defendant which was sought to be introduced through the testimony of the defendant.


author: HENDRY, Judge.

text:
    Bernard ADAMS (a misnomer whose correct name is Bernard Abrams) et al., Appellants, v. BRICKELL TOWNHOUSE, INC., a Florida Corporation, Jerry A. Gross and Laurans A. Mendelson, Appellees.
    No. 79-1877.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.

      Buchbinder & Elegant and Harris J. Buchbinder, Proby & Adkins, Miami, for appellants.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Rudolf F. Aragon, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appeal is taken from a final order of the circuit court dismissing the individual appellees from plaintiffs’ (appellants’) action sounding in tort and contract. We affirm as to the counts stemming from the corporation’s contractual duties; we reverse the individual appellees’ dismissal as to the tort counts; finally, we remand to the trial court, with leave to appellants to amend their complaint.

Appellants are tenants at the Brickell Townhouse, formerly owned by the corporate appellee; the individual appellees are officers of the corporation. Suit arose from inconveniences imposed upon appellants by the process of extensive renovation instituted incident to condominium conversion. These inconveniences allegedly included

deprivation of water, electricity, air conditioning, elevator service, entrance into apartments without notice, breaking holes into apartment walls which are visible from common hallways, throwing about the tenant’s property, damaging the tenant’s personal property and performing work as early as 6:30 A.M.

Appellants’ Amended Complaint contained four counts, alleging nuisance, breach of lease, trespass with malicious injury to property, and retaliatory eviction. Motion to Dismiss as to the individual ap-pellees was granted on all counts on the basis of their status as “merely officers of said corporation.”

This was error. Where a tort has been committed,

individual officers and agents of a corporation are personally liable to any third person even if such acts are performed within the scope of their employment or as corporate officers or agents. See Dade Roofing and Insulation Corp. v. Torres, 369 So.2d 98 (Fla. 3d DCA 1979).

Bush v. Belenke, 381 So.2d 315, 316 (Fla. 3d DCA 1980). CIC Leasing Corp. v. Dade County Linen and Furniture Co., 279 So.2d 73 (Fla. 3d DCA 1973).

The ruling below is defended on the ground that facts necessary to disregard the corporate entity (“pierce the corporate veil”) were not alleged. It is true that no such allegations were made; however, none were necessary: One purpose of the corporate fiction is to insulate stockholders from liability for corporate acts; however, officers of a corporation are no less personally responsible for their tortious acts by virtue of those acts having been performed in the corporate name.

Reversed and remanded.

      . Fla.R.App.P. 9.030(b)(1)(A).


author: DANIEL S. PEARSON, Judge.

text:
    GRIES INVESTMENT COMPANY, Appellant, v. Robert G. CHELTON, Appellee.
    No. 79-2114.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Shapiro & Leder and Paul D. Breitner, Miami, for appellant.
    Charles F. Atwood, III, Miami, for appel-lee.
    Before HUBBART, BASKIN and PEARSON, DANIEL, JJ.
   DANIEL S. PEARSON, Judge.

Gries Investment Company sued Chelton and Marietta International Corporation. In February 1979, the trial court granted Chelton’s motion to dismiss the complaint for its failure to state a cause of action. The court’s order further provided:

“... that the Complaint filed by Plaintiff herein be and the same is hereby dismissed, as to the Defendant, Robert G. Chelton, individually.”

In August 1979, Gries moved for leave to amend its complaint, and a month later the trial court granted such leave. Chelton moved to dismiss the amended complaint, again taking the position that it failed to state a cause of action against him, and also asserting that the February 1979 unap-pealed dismissal barred Gries’ reaverment of the same action against Chelton. In October 1979, the trial court granted Chel-ton’s motion to dismiss the amended complaint with prejudice and Gries took this appeal.

Our first concern is our jurisdiction to entertain this appeal. An order granting a motion to dismiss is not final and not appealable. Guth v. Howard, 362 So.2d 725 (Fla. 2d DCA 1978); First National Bank of Searcy, Arkansas v. Collins, 360 So.2d 804 (Fla. 2d DCA 1978); Horton v. Unigard Insurance Company, 355 So.2d 154 (Fla. 4th DCA 1978); Shotkin v. Deehl, 148 So.2d 538 (Fla. 3d DCA 1963); Mitchell v. Italian-American Club, 122 So.2d 228 (Fla. 3d DCA 1960). We reject Gries’ contention that the addition of the words “with prejudice” makes the order final. In so doing, we do not overlook Segal v. Garrigues, 320 So.2d 475 (Fla. 4th DCA 1975), which in no uncertain terms states that an order granting a motion to dismiss with prejudice is final for appeal purposes. Segal overruled Raphael v. Carner, 194 So.2d 298 (Fla. 4th DCA 1967), which, in our view, correctly held that an order granting a motion to dismiss a complaint with prejudice is not a final order. But the Segal court reasoned that Duncan v. Pullum, 198 So.2d 658 (Fla. 2d DCA 1967), and the “approval” of Duncan by the Florida Supreme Court in Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974), dictated the overruling of Raphael v. Carner, supra. We disagree. Duncan merely held that an order striking the defendant’s counterclaim with prejudice is final and appealable. Duncan v. Pullum, supra, at 660. We agree that an order which strikes the entirety of a claim is the equivalent of an order which dismisses, and either is final. The phrase “with prejudice” in such an order is redundant. Thus, Duncan and Mendez’s approval of Duncan, were simply not authority for the overruling of Raphael, since neither Duncan nor Mendez involved an order granting a motion.

Of course, the fact that Segal unjustifiably overruled Raphael does not ipso facto make Raphael the correct rule of law. Our belief that Raphael was correctly decided derives primarily from the long and unsullied line of Florida authorities holding that an order which merely grants a motion for summary judgment and does not enter the judgment itself is not final. See Aetna Casualty & Surety Company v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); Donnell v. Industrial Fire and Casualty Company, 378 So.2d 1344 (Fla. 3d DCA 1980), and cases collected therein. Obviously implicit in any order granting a motion for summary judgment is that it is with prejudice. Therefore, insofar as prejudice is concerned, an order granting a motion for summary judgment is indistinguishable from an order granting a motion to dismiss with prejudice-the same prejudice attaches to both. For appeal purposes, a further act of the court-the judgment or the dismissal-is required for finality.

In light of our conclusion that an order granting a motion to dismiss with prejudice is not a final appealable order, we requested that the parties procure the appropriate final order dismissing the amended complaint. This has been done and an order dismissing the amended complaint has now been filed with this court. Jurisdiction is now vested in us. Williams v. State, 324 So.2d 74 (Fla.1975); Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980); W. B. D., Inc. v. Howard Johnson Company, 382 So.2d 1323 (Fla. 1st DCA 1980); Sloman v. Florida Power & Light Company, 382 So.2d 834 (Fla. 4th DCA 1980).

We turn now to Gries’ appeal. The question here is whether Gries’ failure to appeal the February 1979 dismissal of the complaint rendered the trial court without jurisdiction to grant Gries leave to amend its complaint seven months later.

Gries contends that the February 1979 order in which its complaint against Chelton was dismissed was not final since it contained no language indicating that the complaint was dismissed with prejudice. A dismissal need not be with prejudice to be a final order for appeal purposes. See, e. g., Tapper v. Taunton, 371 So.2d 595 (Fla. 1st DCA 1979); National Carloading Corp. v. Gemini Transportation, Inc., 364 So.2d 504 (Fla. 3d DCA 1978). While the dismissal here was, in fact, an adjudication on the merits, see Florida Rule of Civil Procedure 1.420(b), that fact, although critical on the issue of res judicata, is not critical on the issue of appealability.

Thus, the February 1979 order dismissing the complaint against Chelton was a final appealable order. Maulé Industries, Inc. v. MacDonald Engineering Company, 296 So.2d 512 (Fla. 3d DCA 1974); State ex rel. Terminal Transport Company v. Earnest, 262 So.2d 469 (Fla. 3d DCA 1972). It was incumbent upon Gries, in order to be relieved of the impact of this dismissal, to timely seek rehearing, see Florida Rule of Civil Procedure 1.530, or to appeal. Gries did neither. Consequently, in September 1979, the trial court was without jurisdiction to entertain and act upon Gries’ motion for leave to file an amended complaint, Jennings Construction Corporation v. C. H. V. Investment Corporation, 386 So.2d 291 (Fla. 3d DCA 1980); State ex rel. Terminal Transport Company v. Earnest, supra. The trial court’s order dismissing the amended complaint is hereby affirmed.

Affirmed.

      . Chelton cross appeals from that part of the order denying his motion to tax attorneys’ fees pursuant to Section 57.105, Florida Statutes (1979). We find Chelton’s cross appeal to be totally without merit and affirm the denial of attorneys’ fees. Gries’ lawsuit was clearly not frivolous. See Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

      . Certain other designated non-final orders are reviewable under Florida Rule of Appellate Procedure 9.130.

      . The concern of Mendez and. Duncan was the finality of an order which disposed of less than all of the issues or causes in the case. Mendez approved of the Duncan holding that an order which strikes a counterclaim is final, since the cause of action raised by the counterclaim is distinct and severable from the cause of action raised in the complaint.

      .Such a procedure was employed in Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980), and Sloman v. Florida Power & Light Company, 382 So.2d 834 (Fla. 4th DCA 1980), and is sound. In Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980), faced with the same problem, we relinquished jurisdiction to the trial court and remanded the case to it for the entry of the dismissal. In a purist sense, if we did not have jurisdiction, we had no jurisdiction to relinquish and no jurisdiction to order the trial court to dismiss. In another sense, we had inchoate jurisdiction, sufficient to enable us to require the trial court to ministerially enter the dismissal which it had authorized by its order granting the motion to dismiss.
      While we agree that the dismissal of a premature appeal is nonproductive and wasteful, we do not agree with Sloman that Williams v. State, 324 So.2d 74 (Fla.1975), precludes dismissal. Williams involved a notice of appeal from the oral pronouncement of sentence in a criminal case. The prematurity of the appeal ■ lay in the fact that it preceded the rendition of the written judgment. Williams expressly restricts the application of its rule that a premature notice of appeal shall not be subject to dismissal to appeals taken from an oral “final” judgment preceding the written one, a written “final” judgment preceding the rendering, or a rendered final judgment preceding the disposition pending post-trial motions. In each instance envisioned by Williams, the appealable final order is moments away. We cannot read Williams as compelling us to hold in limbo a premature appeal from an order granting a motion to dismiss which may never ripen into a dismissal.

      . Florida Rule of Civil Procedure 1.420(b) provides in pertinent part:
      "... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.” (emphasis supplied).

      . The trial court announced no reason for its dismissal of the amended complaint. It is apparent from its earlier grant of leave to amend that it did not dismiss on the ground that its jurisdiction had terminated. However, a correct ruling of a trial court will be sustained regardless of incorrect reasons which may have led to the ruling. Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980).


text:
    Martin PLYSER and Gloria Ann Plyser, Appellants, v. Demitri HADOS, Sylvia Hados and Joseph S. Meister, Appellees.
    No. 79-2267.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and A. H. Toothman and R. Owen Ricker, Jr., Cuadra-do & Parks, Miami, for appellants.
    William Grodnick, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

We vacate summary final judgment rendered below adversely to plaintiffs (appellants). That order issued after the trial court denied appellants’ motion for leave to amend their complaint. Since the court’s summary disposition pertained only to those issues raised in the original pleading, and since we find as a matter of law that the court should have allowed the proffered amendment, we remand for consideration of the issues raised therein.

Appellant, a licensed plumbing contractor, was severely shocked while installing the water hookup of a new dishwasher in the home of appellees Hados. The faulty electrical connection was made by appellee Meister with a “pigtail” connector provided by the homeowner.

Whatever the shortcomings, if any, of appellants’ original complaint, entry of summary judgment is not the proper vehicle for disposition of faulty or inefficient pleadings. DeCarlo v. Sammons, 375 So.2d 351 (Fla.3d DCA 1979); Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla.2d DCA 1966). The extensive record below reflects disputed issues of fact precluding summary judgment; specifically, whether the faulty electrical connection was an obvious or hidden defect; and the existence of express or implied knowledge of the defect on the part of the homeowners. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965); Hall v. Holland, 47 So.2d 889 (Fla.1950); Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla.2d DCA 1965). Any doubt on issues of negligence should always be resolved in favor of a jury trial. Miami Coin-O-Wash, Inc. v. McGough, 195 So.2d 227 (Fla.3d DCA 1967); Musachia v. Rosman, 190 So.2d 47 (Fla.3d DCA 1966); Grail v. Risden, 167 So.2d 610 (Fla.2d DCA 1964).

Upon review of the pleadings, we have concluded that the trial court erred in its refusal to allow the requested amendment. Appellants’ complaint contained a number of allegations of negligence on the part of the co-appellees which were amplified by the attempted amendment. This reformulation of the issues reflected evidence elicited during the course of discovery and therefore could not have constituted surprise. Cf. United Telephone Co. v. Mayo, 345 So.2d 648 (Fla.1977). Moreover, appellants’ motion was made more than two months prior to the date of trial. It is well established that leave to amend should be freely given, particularly where, as here, the amendment is based on the same conduct, transaction and occurrence upon which the original claim was brought, Knipp v. Weinbaum, 351 So.2d 1081 (Fla.3d DCA 1977), and the party seeks amendment at or before a hearing on a motion for summary judgment. Sarasota Commercial Refrigeration v. Schooley, 381 So.2d 1141 (Fla.2d DCA 1980); Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137 (Fla.3d DCA 1977); Haag v. Phillips, 333 So.2d 507 (Fla.2d DCA 1976).

Where the record indicates that a plaintiff may have a viable claim if properly pleaded, the plaintiff is to be afforded an opportunity to amend the complaint. Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971); Greenburg v. Johnston, 367 So.2d 229 (Fla.2d DCA 1979); Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976).

Accordingly, the order of summary judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . Fla.R.Civ.P. 1.190.

      . Fla.R.Civ.P. 1.190(a).


text:
    Florence BREGMAN, Appellant, v. Allen BREGMAN, Appellee.
    No. 79-2334.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Rehearing Denied Nov. 4, 1980.

      Prunty, Ross & Olsen and John W. Prunty, Harold Peter Barkas, Miami, for appellant.
    Snowden, Kornreich, Reichenthal & Mig-dall and Gerald I. Kornreich, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

By this appeal, we are called upon to review the custody provisions and the award of certain personal property upon the entry of a final judgment of dissolution of marriage.

The father was awarded the custody of a son of the parties who, at the time of the final hearing, was five years of age. The mother takes this appeal and urges that the child, being of tender years, should have been placed in her custody. She also urges error in the distribution of certain personal property. We affirm.

Although we might not have made the provisions for custody as done by the trial judge, if there is evidence in the record to support his award we should sustain it. Anderson v. Anderson, 289 So.2d 463 (Fla. 3d DCA 1974); Ross v. Ross, 321 So.2d 443 (Fla. 3d DCA 1975); Koken v. Neubauer, 374 So.2d 49 (Fla. 3d DCA 1979). Since the adoption of the no fault divorce law, the courts of Florida have sustained the awarding of children of tender years to the father. Anderson v. Anderson, supra; Brust v. Brust, 266 So.2d 400 (Fla. 1st DCA 1972); Goodman v. Goodman, 291 So.2d 106 (Fla. 3d DCA 1974); Ross v. Ross, supra; Snedaker v. Snedaker, 327 So.2d 72 (Fla. 1st DCA 1976); Keller v. Keller, 348 So.2d 654 (Fla.1977).

As to the point on the personal property, the husband made a claim for it in his original pleading; he tendered a list identifying it without any objection, and we find that the appellant’s complaint at the present time to be untimely. Lee County Oil Company v. Marshall, 98 So.2d 510 (Fla. 1st DCA 1975); Miami International Hatcheries, Inc. v. General Mills, Inc., 168 So.2d 83 (Fla. 3d DCA 1964).

Therefore, the final judgment of dissolution of marriage here under review be and the same is hereby affirmed.

Affirmed.