text:
    ALACHUA COUNTY COURT EXECUTIVE, et al., Appellants, v. Kirk ANTHONY, Alachua County Juror No. 006, Appellee.
    No. 61209.
    Supreme Court of Florida.
    July 29, 1982.

      Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., Tallahassee, for appellants.
    Thomas W. Kurrus of Law Office of Larry G. Turner, P. A., Gainesville, and Bill Salmon, Gainesville, for appellee.
   OVERTON, Justice.

This is an appeal from a decision of the First District Court of Appeal reported as Anthony v. Alachua County Court Executive, 403 So.2d 1085 (Fla. 1st DCA 1981), which declared unconstitutional that part of section 40.013(4), Florida Statutes (1979), which provides, upon request, an automatic exemption from jury service for “mothers who are not employed full time with children under 15 years of age.” We have jurisdiction. Art. V, 3(b)(1), Fla.Const. The decision of the district court is correct, and we affirm.

Appellee Anthony is a widower with a three-year-old son. He is not employed full time, but attends school approximately twenty hours per week. In the fall of 1980, appellee was summoned to jury duty. He requested that he be excused under the provisions of section 40.013(4) because he was a father who was not employed full time with a child under, fifteen years of age. The trial judge denied the request because appellee was not a “mother,” as required by the statute. Appellee then moved to quash the jury summons, arguing the unconstitutionality of the gender-based classification in section 40.013(4). The trial court denied the motion, and appellee filed a petition for declaratory judgment and for injunctive relief. The trial judge treated the petition alternatively as a motion for reconsideration of the motion to quash, which he denied, and as a petition for declaratory judgment and injunctive relief, which he found was an improper attempt to seek review of the denial of the motion to quash. On appeal, the district court found that it could properly review the constitutionality of section 40.013(4) and held that that statute contained an unconstitutional gender-based classification.

We reject the state’s assertion that the constitutional issue was not properly before the district court. We agree with the district court’s determination that, under the circumstances of this case, it could properly consider the facial constitutionality of section 40.013(4).

In considering the constitutional validity of the statute, the district court recognized the principle, expressed in Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456-457, 50 L.Ed.2d 397 (1976), that, to withstand scrutiny under the equal protection clause, “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The court determined that the only sufficiently important governmental objective under this statute is to ensure that the civil obligation of jury service will not improperly interfere with child-rearing responsibilities. It found that section 40.013(4) failed to achieve this purpose because the statute does not extend the automatic jury-service exemption to all similarly situated mothers and fathers. The district court concluded that section 40.013(4) is premised upon impermissible stereotypes and that the portion of the statute granting an automatic exemption, upon request, to “mothers who are not employed full time with children under fifteen years of age” is unconstitutional.

The state argues that the statute should be upheld because the exemption is reasonable and bears a rational relationship to a legitimate state interest, claiming that the legislature determined that women continue to have the dominant child-rearing responsibility and that mothers who work part time would suffer greater financial loss if required to miss work for jury service than would fathers in the same position. Citing Shevin v. Kahn, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), aff’g 273 So.2d 72 (Fla.1973), the state contends that the gender-based classification at issue is reasonably related to the legitimate state interest in fostering a mother’s child-rearing activities and in cushioning the financial hardship jury duty would impose on her.

The state does have a legitimate interest in ensuring that jury duty does not interfere with child-rearing responsibilities and in assuring that children of tender years are not deprived of appropriate care. However, we must agree with the district court’s conclusion that this objective is not properly served by a statutory provision granting an automatic exemption for mothers, while excluding fathers with the same responsibilities.

Although section 40.013(4) is not being challenged in this proceeding on sixth amendment grounds, we note that courts look with disfavor on broadly drawn automatic exemptions from jury service. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the United States Supreme Court declared unconstitutional an exemption available upon request to all women because of their important role in the home and family life. In Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), the Court ordered that the Duren decision be retroactively applied to all juries sworn after the 1975 ruling in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which set out the basic constitutional guidelines for jury selection.

Our affirmance of the First District Court of Appeal’s decision holding this automatic exemption unconstitutional does not mean that individuals, male or female, with child-rearing responsibilities should not be granted an exemption from jury service under the discretionary provisions of section 40.013(6). We expect the trial judges of this state to recognize that one who has the responsibility of caring for small children has a legitimate ground for requesting and receiving an exemption under that section.

The decision of the district court is affirmed.

It is so ordered.

ADKINS, BOYD, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.

ALDERMAN, C. J., dissents.


source: Caselaw Access Project

author: McDonald, justice.

license: Public Domain

text:
    In the Matter of the use by the trial courts of the STANDARD JURY INSTRUCTIONS (CIVIL).
    No. 62133.
    Supreme Court of Florida.
    July 29, 1982.
    Robert P. Smith, Jr., Chairman, Committee on Standard Jury Instructions (Civil), Tallahassee, for the committee and The Florida Bar.
   McDonald, justice.

The Supreme Court Committee on Standard Jury Instructions (Civil) requests that the committee and the Florida Bar be authorized to publish a complete revision of 3.5i, landlord’s negligence (toward tenant), with comments, Florida Standard Jury Instructions (Civil). Permission to publish the requested revision with comment is granted.

it js so ordered

ALDERMAN, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and EHRLICH, JJ., concur.

       The requested revision is as follows:
      Substitute the following for existing 3.5i: 3.5i
      LANDLORD’S NEGLIGENCE (TOWARD TENANT)

        i.Landlord’s negligence (toward tenant) : when leased premises are not residential: whether (defendant landlord) negligently failed to disclose to (claimant tenant) a dangerous condition on the leased premises which was known to (defendant), which was not known to (claimant) or discoverable by him by the use of reasonable care, and which (defendant) had reason to believe (claimant) could not discover; and, if so, when leased premises are residential (not common areas): whether [, before allowing (claimant tenant) to take possession of the dwelling, (defendant landlord) negligently failed to repair a defect that was discoverable by a reasonable inspection] [or] [, after (claimant tenant) took possession of the dwelling, (defendant landlord) negligently failed to repair a dangerous or defective condition on the premises of which he had actual notice]; and, if so,

        Comment on 3.5i

      1. Revision / /82, reflecting a greater duty by landlord to tenant on leased residential premises, was derived from Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981), overruling to that extent Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946). See also § 83.51, Fla.Stat. (1981), which may impose on the landlord greater duties, in respect to conditions arising after tenant’s possession, than were addressed in Mansur. If other or greater duties are imposed by the statute, charge 3.5i should be modified to express those duties in the terms of the case. Charge 3.5i pertains to the landlord’s duties, not the tenant’s, but the committee calls attention to statutes in chapter 83 imposing certain duties on the tenant, which may affect the landlord’s duties as expressed in this charge.
      2. Common areas. In respect to common areas the landlord’s duty to the tenant is stated in 3.5f. The landlord’s duty to others in common areas is the same as owed by any landowner or possessor of land, e.g., 3.5f, 3.5g.
      3. Persons invited on leased residential premises by tenant. The landlord’s duty to persons invited on leased residential premises by the tenant is the same as the landlord’s duty to the tenant. Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981).
      4. Waiver. The committee expresses no opinion about whether a tenant may waive duties owed him by the landlord. Compare Mansur v. Eubanks, 401 So.2d 1328 (Fla. 1981), with §§ 83.51(1)(b), 83.51(4), and 83.-47, Fla.Stat. (1981).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Justin C. MONTGOMERY, Respondent.
    No. 62264.
    Supreme Court of Florida.
    July 29, 1982.

      Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    Robert A. Skeels, Jacksonville Beach, for respondent.
   PER CURIAM.

This matter is before the Court on petition to approve conditional guilty plea and to enter final order of discipline to violations of Rule 11.02(4) of The Florida Bar Integration Rule and Disciplinary Rules 5-104(A) and 9-102(A) and (B) of The Florida Bar Code of Professional Responsibility. We approve the petition and respondent, Justin C. Montgomery, is hereby suspended from the practice of law for a period of two years, effective April 30, 1981, with a one-year period of probation if and when he is reinstated to membership in The Florida Bar pursuant to Integration Rule, article XI, Rule 11.11 and the applicable bylaws. During respondent’s probation, he shall:

1. Remain active in a program of alcohol rehabilitation;
2. At the end of the one-year probation, submit to The Florida Bar an audit of his trust account demonstrating compliance with the trust account rules promulgated by this Court; and
3. Submit quarterly reports stating that he is maintaining an active status in an alcohol rehabilitation program and submit copies of the quarterly reconciliations of his trust account.

Costs in the amount of $300.00 are hereby taxed against the respondent.

It is so ordered.

ALDERMAN, C. J., and ADKINS, BOYD, MCDONALD and EHRLICH, JJ., concur.


text:
    Donald W. HULMES, Appellant, v. DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION, Appellee.
    No. AG-17.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    M. Terry McNab, Tallahassee, for appellant.
    Augustus D. Aikens, Jr., Tallahassee, Div. of Retirement, for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Appellant, who was discontinued as a member of the State and County Employees Retirement System in 1968, contends that he was an eligible member of that retirement system from the time of his employment in 1955, when he became employed by the Broward County School Board as an attorney to handle the legal .affairs of its new community college. Appellant contends his eligibility was established by old Rules 16 and 17 of the old County Officers and Employees Retirement System which were promulgated by the State Comptroller, by and with the consent and approval of the State Budget Commission, pursuant to § 134.11, Florida Statutes (1945-53). Rule 16 provided:

County attorneys and assistant county attorneys are on a fixed salary, subject to call at any time for as much service as the office requires. Therefore, they are full time officers within the scope of the act.

Rule 17 provided:

Professional men and women, such as attorneys, doctors, architects, nurses, etc., who are on a substantial fixed salary, with a definite understanding that they are subject to call at any time for as much service as the situation demands, and whose county employment receives precedence over private employment, come within the scope of the law.

Appellant was never a member of that system, however. He was employed after enactment of the successor State and County Retirement System [Chapter 122, Florida Statutes (1955)]. Appellant contends that the aforesaid Rules 16 and 17 were carried over into the successor system and that he was, therefore, properly a member of the latter system and is now entitled to transfer his membership there into the Florida Retirement System, Chapter 121, Florida Statutes (1971-81). Appellant has failed to show, however, that Rules 16 and 17 were ever repromulgated under Chapter 122 (the State and County Retirement System) pursuant to § 122.13 as rules applicable to that system. An administrative rule or regulation is operative and binding on those coming within its terms from its effective date until it is modified or superseded by subsequent legislation or by subsequent regulations adopted in compliance with duly ordained standards of administrative procedure, and it expires with the repeal of the statute from which it gains its life. 73 C.J.S. Public Administrative Bodies and Procedures, § 107. Thus, appellant’s reliance upon old Rules 16 and 17 is misplaced.

A 1959 ruling of the Florida Attorney General interpreting § 122.02, Florida Statutes as to “full time” employees (AGO 059-22) held as follows:

As § 122.02, F.S., supra, includes only “. .. all full-time officers or employees ...” within the coverage of Ch. 122, F.S., it appears that part-time or temporary employees of the board would not be included in the state and county officers and employees retirement system.

In addition, in 1960, the Attorney General in AGO 060-106 further interpreted this statute as follows with regard to full-time employment:

From the above and foregoing, it appears that for officers and employees to be within the purview of the state and county officers and employees retirement system they must be full-time employees on fixed monthly salaries. “Full time” is defined by Webster as “the amount of time considered the normal or standard for working during a given period, as a day, week or month.” In Johnson v. Stoughton Wagon Co., 118 Wis. 438, 95 N.W. 394, text 397, full time employment was deemed an employment or business to the exclusion of the conduct of other businesses such as require the substantial part of his time or attention. See also 17A Words and Phrases, 523-525.

We agree with these interpretations of the Attorney General. There is competent substantial evidence to support the finding of the hearing officer which was adopted by the Department that appellant did not qualify as a full-time employee, as required by § 122.02, Florida Statutes.

Motion for rehearing denied. 417 So.2d 334.

McCORD, ERVIN and SHAW, JJ., concur.

      . The State Auditor at that time raised objections to his being considered a member of that system.


text:
    AETNA INSURANCE COMPANY, Appellant, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellee.
    No. 81-1168.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied Sept. 10, 1982.
    Vernis, Bowling, West, Montalto & Goodman and Richard N. Blank, Fort Lauder-dale, for appellant.
    McClure & Gay and Robert J. Reid, Fort Lauderdale, for appellee.

      Before NESBITT and JORGENSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Because we find that the notice provided by Anthony Abraham Leasing, Inc. was insufficient to shift the primary responsibility for liability and personal injury coverage from the lessor’s insurance company (Southeastern Fidelity Insurance Company) to the lessee’s carrier (Aetna Insurance Company), we reverse. Guemes v. Biscayne Auto Rentals, Inc., 414 So.2d 216 (Fla. 3d DCA 1982) (Case no. 80-1381, opinion filed April 20, 1982).

Reversed and remanded with directions to enter final judgment in favor of Aetna Insurance Company.


text:
    William Arthur BEATTY, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1001, 81-1002.
    District Court of Appeal of Florida, Second District.
    June 18, 1982.
    Rehearings Denied Aug. 20, 1982.
    John Oliver Ellis, Jr., and James K. Jenkins of Stroup, Goldstein, Jenkins & Pritz-ker, Atlanta, and Wilbur C. Smith, III, of Smith, Carta & Ringsmuth, Fort Myers,- for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The state charged appellant in separate informations with conspiracy to traffic in cannabis and violation of the RICO statute. Following pretrial proceedings, appellant pled nolo contendere to both informations, reserving the right to appeal the denial of certain motions. The court sentenced him to concurrent eight year prison terms.

The only point on appeal which merits discussion relates to appellant’s challenge of the sufficiency of the RICO information. This information alleged that various persons, including appellant,

At divers times between June 16, 1979, and August 1, 1979, and on a continuing basis, in Lee County, Florida, knowingly, willfully, feloniously, intentionally, and unlawfully, was employed by, or associated with, an enterprise as defined by F.S. 943.461, to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity in derogation of F.S. 943.462(3), and during said period of June 16, 1979-August 1, 1979, in Lee County, Florida, did engage in at least two incidents of racketeering conduct; to-wit: Conspiracies to Commit Violations of F.S. Ch. 893, relating to drug abuse prevention and control, the said conspiracies having the same or similar intents, results, accomplices, victims, or methods of commission or otherwise being interrelated by distinguishing characteristics and not being isolated incidents, and having occurred after the effective date of Sections 943.46 — 943.464, F.S., and the last of which such incidents having occurred within 5 years after a prior incident of racketeering conduct.

We agree with the appellant that the information was legally insufficient.

In order to be convicted for violation of the RICO statute, the defendant must have engaged in at least two incidents of racketeering activity. Dean v. State, 414 So.2d 1096 (Fla. 2d DCA 1982). Under section 943.461, Florida Statutes (1979), racketeering activity includes conspiring to commit a crime chargeable under enumerated provisions of the criminal law, one of which is “chapter 893, relating to drug abuse prevention and control.” The state attempted to allege the two predicate offenses only by tracking this statutory language.

An information charging a crime in the language of a statute may suffice if the statutory language adequately states the allegedly criminal acts. State v. Dilworth, 397 So.2d 292 (Fla.1981). Yet, when the information remains vague or calculated to mislead the defendant in the preparation of his defense, it must be supplemented by appropriate allegations of the particular acts deemed to constitute the offense. State v. Covington, 392 So.2d 1321 (Fla. 1981). Informations which charge conspiracy are subject to special scrutiny. Goldberg v. State, 351 So.2d 332 (Fla.1977). While it may be unnecessary to allege the predicate offenses underlying a RICO charge with the same particularity as if they were separately charged, the accused must be apprised of what to defend against. Here, at the very least, the state should have designated which of the myriad of crimes proscribed by chapter 893 the appellant conspired to commit.

The state’s contention that the information conforms to the standards set forth in State v. Whiddon, 384 So.2d 1269 (Fla.1980), is not well founded. A careful reading of that case indicates that the court only concluded that the allegation of a RICO “enterprise” could be properly couched in the statutory language. The court did not pass on the sufficiency of the allegations of the predicate offenses. If there is any doubt about this, reference to United States v. Elliott, 571 F.2d 880 (5th Cir. 1978), cited by the supreme court as involving a similar indictment, reflects that the predicate charges were alleged with particularity.

We affirm the appellant’s conviction for conspiracy but reverse the judgment of guilt under the RICO statute and remand that case for further proceedings in the event the state wishes to renew prosecution.

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


text:
    Earl Robin BOWERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1003, 81-1004.
    District Court of Appeal of Florida, Second District.
    June 18, 1982.
    Rehearings Denied Aug. 20, 1982.

      John Oliver Ellis, Jr., and James K. Jenkins of Stroup, Goldstein, Jenkins & Pritz-ker, Atlanta, and Wilbur C. Smith, III, of Smith, Carta & Ringsmuth, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

These are companion cases to Beatty v. State, 418 So.2d 271 (Fla. 2d DCA 1982). As in Beatty, we affirm the appellant’s conviction for conspiracy but reverse the judgment of guilt under the RICO statute and remand that case for further proceedings.

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


author: RYDER, Judge.

text:
    Rodney Edward PIERCE, Petitioner, v. Louis T. MIMS, as Sheriff of Polk County, Florida, Respondent.
    No. 82-877.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.
    Rehearing Denied Aug. 20, 1982.
    Jerry Hill, Public Defender, and Alex J. Sabo, II, Asst. Public Defender, Bartow, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for respondent.
   RYDER, Judge.

Petitioner requests that a writ of habeas corpus be issued because he is being held unlawfully without probable cause to believe that he has committed any offense. We agree with petitioner’s argument and grant the writ of habeas corpus.

Petitioner, incarcerated following arrest for grand theft, was not charged by indictment or information within twenty-one days from the date of his arrest, and he filed a motion for adversary preliminary hearing pursuant to rule 3.131(b), Florida Rules of Criminal Procedure. At the preliminary hearing, the state offered only the testimony of the police officer who investigated the crime. Over objection of petitioner’s counsel that the testimony was inadmissible as hearsay, the officer testified concerning statements given by a codefend-ant. Based on the officer’s testimony, probable cause was found and petitioner was bound over to answer to the charge of grand theft.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” § 90.801, Fla.Stat. (1981) (emphasis added). The statements of the codefendant to the police officer concerning the grand theft fall within the hearsay definition and are inadmissible unless an exception provides otherwise. § 90.802, Fla.Stat. (1981). We find no applicable exception.

The respondent argues that relaxed evidentiary rules govern preliminary hearings, therefore, hearsay is admissible. This argument ignores rule 3.131(b)(3), which provides that all witnesses are to be examined in the defendant’s presence and that the defendant has the right to cross-examine the witnesses.

Because the hearsay testimony was inadmissible and no other evidence was presented, the judge below erred in making a determination of probable cause. The writ of habeas corpus is issued with directions that the defendant be released. Of course, release does not preclude further prosecution by information. Fla.R.Crim.P. 3.131(b)(5).

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

      . Rule 3.131. Pretrial Probable Cause Determinations and Adversary Preliminary Hearings
      (b) Adversary Preliminary Hearing.
      (1) When Applicable. A defendant who is not charged in an information or indictment within 21 days from the date of his arrest or service of the capias upon him shall have a right to an adversary preliminary hearing on any felony charge then pending against him. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.
      (2) Process. The magistrate shall issue such process as may be necessary to secure attendance of witnesses within the state for the state or the defendant.
      (3) Witnesses. All witnesses shall be examined in the presence of the defendant and may be cross-examined. Either party may request that the witnesses be sequestered. At the conclusion of the testimony for the prosecution, the defendant shall, if he so elects, be sworn and testify in his own behalf, and in such cases he shall be warned in advance of testifying that anything he may say can be used against him at a subsequent trial. He may be cross-examined in the same manner as other witnesses, and any witnesses offered by him shall be sworn and examined.
      (4) Record. At the request of either party, the entire preliminary hearing, including all testimony, shall be recorded verbatim steno-graphically or by mechanical means, and at the request of either party shall be transcribed. If the record of the proceedings, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of this transcript shall be furnished free of cost to defendant or his counsel.

        (5)Action on Hearing. If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall cause the defendant to be held to answer to the circuit court; otherwise, the magistrate shall release the defendant from custody unless an information or indictment has been filed, in which event the defendant shall be released on his or her own recognizance subject to the condition that he or she appear at all court proceedings, or shall be released under a summons to appear before the appropriate court at a time certain. Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial.
      A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and, together with the evidence received in the cause, shall be filed with the clerk of the circuit court.

      . The codefendant’s statement would fall within the “statement against interest” exception but for the provision that a statement “made by a codefendant ... implicating both himself and the accused, is not within this exception." § 90.804(2)(c), Fla.Stat. (1981).


text:
    Tomas GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1176.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Rehearing Denied Sept. 10, 1982.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Cumbie, 380 So.2d 1031 (Fla.1980); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); United States v. Halbert, 640 F.2d 1000 (9th Cir. 1981); Harris v. State, 414 So.2d 242 (Fla. 3d DCA Case no. 81-1904, opinion filed, May 11, 1982); Section 924.33, Fla.Stat. (1979).


author: SCHWARTZ, Judge.

text:
    FLAGSHIP NATIONAL BANK OF MIAMI and Charles Curtis King, Jr., as Personal Representatives of the Estate of Charles Curtis King, Deceased, Appellants, v. Susan Fitzgerald KING, Appellee.
    No. 81-2206.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Rehearing Denied Sept. 8, 1982.

      Therrel, Baisden, Stanton, Wood & Setlin and Howard Setlin, Miami Beach, for appellants.
    John F. Muckerman, Miami Beach, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

Prior to their marriage, Mr. and Mrs. King made an oral agreement that neither would have a claim upon the other’s separate property when he or she died. After-wards, they memorialized this understanding in writing. The trial judge held that the provisions of Section 732.702(2), Fla.Stat. (1979), which require a “fair disclosure” of a spouse’s assets to validate such a waiver by the other after marriage, controlled these facts and, in the absence of a showing that such a disclosure had been made, therefore struck the objections of Mr. King’s personal representatives to any claim by the widow to a family allowance and her elective share of his estate. We hold to the contrary that the prenuptial date when the original agreement was entered is determinative. Since no disclosure is required under the statute to sustain a waiver agreed to at that time, we reverse the judgment under review.

When the Kings met in 1959, he was seventy-one and she fifty-two years of age. Each had been married twice before and each had grown children. Each had two other important things in common. They were both obviously persons of substantial independent means; and both wished to preserve their respective individual resources for the benefit of their own families. Accordingly, before their marriage, which took place on January 21, 1960, they specifically agreed that, when they died, neither would take any part of his or her spouse’s estate. Although this prenuptial agreement was not in writing, its existence was indisputably established by repeated post-marriage statements which were. The first of these was embodied in a will executed by Mr. King on June 5, 1964, the first paragraph of which stated clearly:

[T]he name of my present wife is SUSAN FITZGERALD KING, more commonly known as SUE KING, whom I married on January 21, 1960; that prior to our marriage, we orally agreed that each of us should have, keep, and retain full ownership, control and enjoyment of all property owned by us respectively; that each of us should have the sole, exclusive and absolute right to dispose by Will or otherwise of any and all property, real, personal, or mixed, owned by either of us at the time of marriage; in like manner as if our marriage had not taken place and each of us had remained unmarried; and we further agreed that all of the income, rents, issues, profits, dividends and- interest arising or emanating from our respective property holdings should be and belong exclusively to the owner thereof. This declaration shall constitute a written memorial of our said oral agreement.

At the foot of her husband’s will, Mrs. King made the following duly witnessed “declaration by wife”:

I, SUSAN FITZGERALD KING, wife of Charles Curtis King, hereby certify (1) that I have read the foregoing Will of my husband, Charles Curtis King; (2) that the declarations contained therein with respect to our oral agreement are true and correct; and (3) that I hereby ratify and confirm our oral agreement with respect to the disposition of our respective property and the income, rents, issues, profits, and dividends and interest thereof.
DATED at Miami Beach, Dade County, Florida, this 5th day of June, 1964.
/s/ Susan Fitzgerald King

On April 18, 1966, in turn, Mrs. King made a will and the husband made an appended declaration which respectively tracked these provisions of Mr. King’s 1964 will. Moreover, Mrs. King included a further statement that

I expressly make no provision for my beloved husband, CHARLES CURTIS KING, not because of any lack of love or affection for him, but solely because (1) he has adequate independent means of his own; and (2) he has expressly requested to be omitted herefrom; and (3) our mutual desire to provide for our respective children of prior marriages.

Clauses almost identical to these were included both in Mrs. King’s later will of 1973 and Mr. King’s, executed in 1978.

The Kings’ marriage lasted for almost twenty years. During that time, they conducted their financial affairs in a manner thoroughly consistent with these expressed intentions. Soon after the marriage, for example, they bought a home on La Gorce Island in Miami Beach by the entireties, with each paying 50% of the purchase price from individual resources. Mrs. King paid for her own expenses from her own funds, and even bought a home in Highlands, North Carolina which was placed in her name alone. Similarly, each spouse filed individual income and intangible tax returns throughout the marriage.

On January 2, 1980, Mr. King died, leaving a probatable estate of about $800,000 almost entirely to his son, Charles King, Jr., who is one of the present appellants. In accordance with their agreement, he bequeathed nothing to his widow. Notwithstanding their mutual understanding and the fact that she was revealed to have separate assets of substantially greater value than Mr. King’s, at least $1,500,000, Mrs. King claimed the right to a family allowance, Sec. 732.403, Fla.Stat. (1979), and an elective share of her husband’s estate, Sec. 732.201, Fla.Stat. (1979). After a trial at which Mr. King’s representatives could not demonstrate that he had made any particular revelation of his assets to Mrs. King either before or after the marriage, the lower court concluded (a) that, although the parties had indeed agreed to waive their respective rights before the marriage,' the agreement was invalid because it was not then in writing, and (b) that the postnuptial written memoranda of that agreement were ineffective because they were not preceded by a “fair disclosure” of Mr. King’s estate. Hence, the representatives’ petition to disallow Mrs. King’s claims was denied.

Our disagreement with this position is necessarily based on our interpretation of Sec. 732.702, Fla.Stat. (1979) which, as all agree, is controlling because Mr. King died after its effective date. Topper v. Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980), review denied, 397 So.2d 779 (Fla. 1981). Briefly summarized, the statute validates agree-merits to waive the rights of a surviving spouse in probate so long as the agreement is in writing, and, in the case of a waiver after, but not before the marriage, is accompanied by a “fair disclosure” of the assets of the other spouse. See generally, Weintraub v. Weintraub, 417 So.2d 629 (Fla. 1982). The obvious reasons for the statute’s elimination of the disclosure requirement in the antenuptial situation only are simultaneously to encourage marriage and to recognize that the respective financial duties and responsibilities which marriage itself entails are sufficient bulwarks against the possibility of a spouse’s being disadvantaged by an agreement which is not based upon a reasonable understanding of the extent of the other’s resources. On the other hand, when the marriage has already taken place, the need to foster it no longer applies; at the same time, the confidential relationship which has arisen between the parties requires that, at the least, fair disclosure form the basis of any such undertaking. The other requirement of Sec. 732.-702 that the contract be in writing, which applies in all instances, is, like every such Statute of Frauds provision, simply based upon the prevention of fraudulent claims, 73 Am.Jur.2d Statute of Frauds §§ 510, 562 (1974) — a requirement which has special force in a situation in which one of the parties to the asserted agreement is necessarily dead. Putting the two aspects of the statutory reasoning together, it is apparent that they are both satisfied whenever, as in this case, an agreement is actually reached — without disclosure — before the parties marry if it is reduced to writing at any stage, either before or after the marriage takes place. Of course, our primary, indeed exclusive concern in the realm of statutory interpretation is to vindicate the legislative intent, 30 Fla.Jur. Statutes § 77 (1974), considered in terms of the evident policy and purposes which underlie the provision in question, 30 Fla.Jur. Statutes §§ 104-107 (1974). We therefore adopt that construction here.

Since the object of judicial decision-making in general is likewise to reach results which conform to the requirements of common sense and reasonableness, it is neither surprising nor coincidental that the same conclusion follows from a more traditional, legally antiseptic analysis of the issue before us. It is well established that under Statutes of Frauds like Florida’s in general and this one in particular which do not render oral contracts “void,” see 73 Am.Jur.2d Statutes of Frauds § 513 (1974), such an unwritten agreement is merely unenforceable. Accordingly, it may thereafter be rendered completely enforceable by the execution of a sufficient subsequent memorandum of the original oral undertaking. Rank v. Sullivan, 132 So.2d 32, 36 (Fla. 2d DCA 1961). Specifically, a memorandum may include one contained, as in Mrs. King’s case, in a will. Rank v. Sullivan, supra. When that occurs, it is the oral contract — and not the subsequent memorandum which merely evidences its existence — which is given effect. As was said in Simpson v. Green, 231 S.W. 375 (Tex.Comm. App.1921):

When a sufficient memorandum of a prior oral contract has been made and signed and suit for enforcement is brought, it is the oral contract that is enforced, and not the memorandum by which such contract is proved.

231 S.W. at 378. Applying this doctrine to an antenuptial agreement, the court said in McMinimee v. McMinimee, 238 Iowa 1286, 30 N.W.2d 106, 109 (1947):

Plaintiff [wife] can avail herself of the written instrument (executed after marriage) only to prove the oral antenuptial contract.

Accord, Jones, Statute of Frauds — Oral Antenuptial Agreement in Consideration of Marriage, 5 Wis.L.Rev. 372, 373 (1929) (“... a subsequent compliance with the statute [of frauds] merely supplies the kind of evidence necessary to establish and make enforceable the already existing [oral] contract.”), and cases cited.

Under these principles, it is apparent that the determining substantive law is that which controls the validity of the oral agreement itself, as opposed, as in the present instance, to the rule applicable if the contract were deemed effective when the written memorandum is signed. Thus, in Weber v. Weber, 170 Ohio St. 567, 167 N.E.2d 98 (1960), which is directly on point, the court held that an oral antenuptial agreement was rendered enforceable as such by a post-marriage memorandum, and that the writing did not constitute a new agreement which was itself invalid under the law forbidding interspousal contracts. At 167 N.E.2d 102-103, the court held:

It would appear . . . that the basis upon which such contracts have been upheld is that the reduction to writing after marriage of the oral contract made prior to marriage constitutes a sufficient written memorandum of the premarital agreement to take it out of the statute of frauds and does not constitute a new contract subject to statutes ... prohibiting contracts between husband and wife. . . . [e.s.]

For these reasons, the order under review is reversed and the cause remanded with directions to disallow any claims of the appellee to a family allowance or an elective share of Mr. King’s estate.

Reversed.

      . Although it is not clear that the precise extent of their respective resources was then known to the other.

      . His interest in the Miami Beach home held by the entireties of course went directly to Mrs. King.

      . Mrs. King did say that her husband had not misled her on any subject, except his age.

      . In full, it provides as follows:
      (1) The right of election of a surviving spouse, the rights of the surviving spouse as intestate successor or as a pretermitted spouse, and the rights of the surviving spouse to homestead, exempt property, and family allowance, or any of them, may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party. Unless it provides to the contrary, a waiver of ‘all rights,’ or equivalent language, in the property or estate of a present or prospective spouse, or a complete property settlement entered into after, or in anticipation of, separation, dissolution of marriage, or divorce, is a waiver of all rights to elective share, intestate share, pretermitted share, homestead property, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to either from the other by intestate succession or by the provisions of any will executed before the waiver or property settlement.
      (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.
      (3) No consideration other than the execution of the agreement, contract, or waiver shall be necessary to its validity, whether executed before or after marriage.

      . This basis of the statutory distinction is demonstrated by the fact that if the marriage is ended by dissolution, rather than death, the statute is inapplicable so that an agreement made without fair disclosure does not affect the spouse’s continuing financial obligations. Weintraub v. Weintraub, supra; Dei Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962).

      . In this light, we ascribe no particular significance to the fact that Sec. 732.702(2) refers to agreements “executed” before or after marriage. See Barrington v. State, 145 Fla. 61, 199 So. 320, 323 (1940); Satz v. Blankenship, 407 So.2d 396 (Fla. 4th DCA 1981). Thus, in Wein-traub, supra, the supreme court stated that the “statute makes valid all agreements entered into before marriage, even in the absence of disclosure.” [e.s.]

        . Buffington v. Buffington, 151 Ind. 200, 51 N.E. 328 (1898); Kohl v. Frederick, 115 Iowa 517, 88 N.W. 1055 (1902); Haraldson v. Knutson, 142 Minn. 109, 171 N.W. 201 (1919) (under statute not rendering such agreements “void,” oral antenuptial agreement becomes enforceable by later writing); compare Hunt v. Hunt, 171 N.Y. 396, 64 N.E. 159 (1902); Rowell v. Barber, 142 Wis. 304, 125 N.W. 937 (1910) (contrary result where statute provides oral agreement “void").

      . The appellants make the alternative contention that even if the statutory “fair disclosure” requirement is applicable, it was satisfied in this case. This argument is based in part upon the fact that, since Mrs. King’s estate was the larger, Mr. King gave up much more than she in their mutual waivers. Hence, it is claimed, she was not “the less financially secure party” to whom the “fair disclosure” requirement applies in the first place. See Weintraub v. Weintraub, supra; Del Vecchio v. Del Vecchio, supra. Putting it somewhat differently, it is said that the failure precisely to disclose his less significant assets could not have causally affected her decision to forego her less valuable rights in his estate in return for his waiver of his more valuable rights in hers and that, therefore, the “fair disclosure” contemplated by § 732.702(2) was essentially satisfied even if no actual disclosure may have been made at all. While the basis of our decision makes it unnecessary to reach the merits of these assertions, we do note that they are neither unsubstantial nor devoid of support in the decided cases. See Anderl v. Willsey, 193 Neb. 698, 229 N.W.2d 46 (1975); Merrill v. Estate of Merrill, 275 Or. 653, 552 P.2d 249 (1976); In re Estate of Strickland, 181 Neb. 478, 149 N.W.2d 344, 353 (1967) (“She now asserts that she was not informed of the value of the husband’s property and was therefore defrauded, when she well knew at the time she was getting no property at all. If she knew that she was to get nothing, as she did, a failure to disclose the value of the husband’s property appears to have been of little consequence to her at the time.”); In re Estate of Davis, 20 N.Y.2d 70, 281 N.Y.S.2d 767, 228 N.E.2d 768, 770 (1967) (no requirement of disclosure even if husband wealthier than wife, since “[i]f she had predeceased her husband he could have asserted no claim against her estate. It requires more than the circumstances here to rule that this agreement gave her the option to abide the event of which died before the other, being sure that if she predeceased him he could not take any of her estate against her children, but leaving it open to her, if old mortality turned the other way, to take against his will... as though no agreement had been made.”)


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

text:
    Henry James DENARD, a/k/a Henry Lowe, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent.
    No. 82-359.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.
    Rehearing Granted Aug. 26, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.
   COWART, Judge.

This is petitioner’s second effort to have this court review his conviction. In the first attempt, we dismissed his appeal for lack of jurisdiction because the notice of appeal was filed untimely. See Denard v. State, 410 So.2d 976 (Fla. 5th DCA 1982).

Petitioner now files a petition for writ of habeas corpus to secure a belated direct review of his criminal conviction, citing Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). The petition narrates the background facts about being tried and found guilty and the notice of appeal being filed and the appeal being dismissed by this court, then it is alleged: “there exists reasonable grounds to believe that by state action the Petitioner has been deprived of his right to direct appeal,” followed by a request that this court appoint a commissioner “to make a complete finding of fact.” Apparently, the commissioner is expected to look for facts to support the asserted conclusion. Baggett holds that the defendant himself is responsible for initiating appeal proceedings. To activate the State’s duty to act to provide necessary incidents of appeal, including appointment of counsel for appeal, the petitioner must meet his initial duty by timely apprising the trial judge of his indigency and desire to appeal. The petition fails to allege these few facts, simple but vital under Baggett. We have gone beyond the petition in this case and examined the file in petitioner’s case No. 81-751 in this court. Both the original judgment dated March 25, 1981, and the corrected judgment dated May 8, 1981, adjudicates that the court informed petitioner of his right to appeal and that such appeal had to be taken within 30 days of that date. The record on appeal does not include a transcript of the sentencing proceedings on March 25, 1981, but the clerk’s minutes of that proceeding also note that the court advised of the right to appeal within 30 days and right to counsel. As to matters relevant here, the next matter in the file is the untimely notice of appeal filed June 10, 1981, followed by a motion filed June 12, 1981, with attached insolvency affidavit, for an order finding insolvency and for the appointment of counsel for purposes of appeal. The motion for appointment of appellate counsel, of course, implies a desire to appeal but petitioner’s motion in this case was filed after the untimely notice of appeal. Therefore, there is no allegation in the petition, or indication in the record, that petitioner clearly and timely apprised the trial judge of his indigency and desire to appeal. Accordingly, the petition is insufficient and is

DENIED.

COBB, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent. There is no question that petitioner was advised of his right to appeal within thirty days. Initially he may have elected not to appeal and changed his mind after the time had expired. If that were the case, then his right to appeal has been lost. On the other hand, he may have diligently exerted his rights. We may engage in endless speculation as to why the Public Defender’s Office did not file the notice as required. It took forty-four days for the Office of the Public Defender of the Seventh Judicial Circuit to receive a designation to represent petitioner after the notice of appeal was filed by the Public Defender of the Eighteenth Judicial Circuit. The petition does not address the reasons for the late filing, and without question it could and should have been more specific. I suspect the reason it was not more specific was that one Public Defender’s office was reluctant to point a finger of blame at another Public Defender’s office. I can also appreciate the reluctance of petitioner’s attorney to state specifically his omission, if such be the case. However, the petition does state that there are “reasonable” grounds to believe the late filing was due to state action. In my opinion, this allegation alone requires further inquiry and a hearing should be held. To require the petitioner “to clearly and timely apprise the trial judge of his indigency and desire to appeal,” in my own experience, grossly overestimates the comprehension, intelligence and abilities of many criminal defendants. We should treat the allegation that the failure to file was caused by state action as raising a presumption that the defendant had made known to counsel within the time period his desire to appeal, rather than summarily denying the petition for insufficiency. The merits of the petition should be judged only after all facts necessary to a just determination are available. Therefore, as suggested by petitioner, I would appoint a commissioner to determine if the late filing was indeed state action.


author: SCHOONOVER, Judge.

text:
    Linda BRYANT, as personal representative of the Estate of David Bryant, deceased, Appellant, v. REFRIGERATED TRANSPORT COMPANY, INC. and Transport Indemnity Company, D & K Investments, Inc., and Protective Insurance, Appellees.
    No. 81-1721.
    District Court of Appeal of Florida, Second District.
    July 2, 1982.
    Rehearings Denied Aug. 20, 1982.

      Wagner, Cunningham, Vaughan & McLaughlin, P. A., Tampa, Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P. A., Miami, for appellant.
    William F. McGowan, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for appellees, Refrigerated Transport Co., Inc., and Transport Indemnity.
    Barbara J. Paulson of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellee, D & K Investments, Inc.
    Debbie Russell and Kenneth C. Deacon of Harris, Barrett & Dew, St. Petersburg, for appellee, Protective Ins. Co.
   SCHOONOVER, Judge.

This is an appeal from final summary judgments entered in favor of the appellees, D & K Investments, Inc., Protective Insurance Company, Refrigerated Transport Company, Inc., and Transport Indemnity Company, in a motor vehicle negligence action brought by the appellant, Linda Bryant, as personal representative of the estate of David Bryant. The judgments were based upon a finding that the appellant’s exclusive remedy was under the Florida Workers’ Compensation Act. We affirm in part and reverse in part.

On August 10, 1978, David Bryant was killed in Wildwood, Florida, when the tractor-trailer in which he was riding as a passenger collided with a bridge embankment. Workers’ compensation benefits were paid pursuant to chapter 440, Florida Statutes (1979).

The appellant, Linda Bryant, in her capacity as personal representative of her husband’s estate, filed suit against the driver of the truck, Dwayne Berry, the owner/lessor of the truck, D & K Investments, Inc., its liability insurer, Protective Insurance Company, the lessee of the truck, Refrigerated Transport Company, Inc., and its insurer, Transport Indemnity Company.

Suit was also filed against the manufacturer of the truck’s tires, Michelin Tire Company and/or La Manufacturer Fran-caise De Pneumanticques Michelin, but they are not directly involved in this appeal.

The trial court found that both D & K Investments, Inc., hereinafter referred to as D & K, and Refrigerated Transport Company, Inc., hereinafter referred to as RT, were employers of the deceased and therefore immune from suit under the “exclusive remedy” provision of the Florida Workers’ Compensation Act. Final summary judgments were accordingly entered for them and their insurers.

The trial court also held that the deceased’s coemployee, Dwayne Berry, was immune under the same section of the act and entered a summary judgment in his favor. Subsequent to the filing of her notice of appeal, the appellant conceded the correctness of the final judgment entered in Mr. Berry’s favor under the authority of the case of Iglesia v. Floran, 394 So.2d 994 (Fla.1981), and filed a notice of voluntary dismissal of that part of the appeal.

At the time of the accident in question, D & K was in the business of long distance truck hauling of perishable products between Florida and the west coast of the United States. Mr. Berry was D & K’s first driver, and Mr. Bryant was D & K’s helper driver. The company owned, maintained, and paid all taxes and fees in connection with the operation of their trucks. It independently hired, supervised, paid, and when necessary, fired the truck drivers.

Since D & K did not have an interstate commerce commission certificate of public convenience and necessity allowing it to transport commodities in interstate commerce, it leased its trucks and drivers to RT, who had the necessary permit.

Under the lease and collateral agreements entered into between the parties, D & K’s drivers were to remain the employees of D & K, and although RT required them to take road tests and written examinations, they could not hire or fire them. D & K was responsible for meeting all regulatory requirements placed upon RT' by various governmental agencies, and RT had the right to inspect D & K’s operations quarterly to insure its compliance with the federal regulations imposed upon them because of their certificate of public convenience and necessity. While making these quarterly audits, RT’s safety director would review all drivers’ files to be sure that they were meeting all of the requirements of RT.

Under the terms of the lease, D & K was required to pay RT seven percent of its gross income. Subject only to any regulatory requirements placed upon RT by governmental agencies, D & K was to have full control and responsibility for all transportation services, selecting all routes, and for paying all expenses. Workers’ compensation insurance was obtained by D & K, and its carrier paid the workers’ compensation benefits in this case.

It is clear that Mr. Berry and Mr. Bryant were employees of D & K at the time of the accident. § 440.02, Fla.Stat. (1979). Accordingly, the summary judgments entered in favor of D & K and its insurer Protective Insurance Company were proper and are hereby affirmed.

However, we find that RT was not the employer of Mr. Berry or Mr. Bryant and accordingly hold that the trial court erred in entering a summary judgment in favor of RT and its insurer.

RT first contends it was a contractor that entered into a contract of carriage for the transportation of goods for others and that a portion of this work was subcontracted to D & K by the agreements discussed herein. It contends that under these circumstances Florida law regards it as a statutory employer of Mr. Bryant and therefore entitles it to the immunity of section 440.11, Florida Statutes (1979).

RT’s reliance on the case of Motchkavitz v. L. C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981), is misplaced. The supreme court in the Motchkavitz case held that a contractor, who sublets part of his work to a subcontractor and therefore becomes liable to secure workers’ compensation coverage for employees of his subcontractors, is immune from suit by such employees when the coverage has been secured either by him or the subcontractor. It is the liability to secure coverage for such employees in the event that the subcontractor does not do so that immunizes a contractor from suit by such employees. However, in the case sub judi-ce, RT was not a contractor who subcontracted a part of its contract to D & K, and therefore is not immune from suit. RT cannot be considered a contractor and thus a statutory employer of Mr. Bryant, within the meaning of section 440.10, since the clear implication of that section is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. As stated in Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), at page 289:

To “sublet” means to “underlet”, ... in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so “subletting” is primarily obligated. The Corporation, under the facts here present, had no primary obligation under a contract which it was passing on to another. It was not, then, a “contractor” within the meaning of the Act.

There has been no showing of a contractual obligation on the part of RT which was sublet to D & K. On the contrary, D & K solicited the contracts and performed them without any interference by RT.

RT also contends that it was a statutory employer under 49 U.S.C. section 304(e)(2). That section provides:

(2) such other regulations as may be reasonably necessary in order to assure that while motor vehicles are being so used the motor carriers will have full direction and control of such vehicles and will be fully responsible for the operation thereof in accordance with applicable law and regulations, as if they were the owners of such vehicles, including the requirements prescribed by or under the provisions of this chapter with respect to safety of operation and equipment and inspection thereof, which requirements may include but shall not be limited to promulgation of regulations requiring liability and cargo insurance covering all such equipment.

These government regulations are designed to protect the shipping and highway traveling public, not to facilitate control by a company over the owner/operators of equipment leased to them. The regulations standing alone are insufficient to turn D & K’s drivers into employees of RT. They may be considered in conjunction with other elements of the relationship in determining the status of an individual worker, but they do not necessarily imply the existence of an employer/employee relationship. N.L.R.B. v. A. Duie Pyle, Inc., 606 F.2d 379 (3rd Cir. 1979). Contra White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir. 1979).

In the case sub judice, there was no express or implied contract between RT and D & K’s drivers, and RT had no control of them beyond that required by government regulation. Nothing impaired the drivers’ independence.

The last contention of RT was that it was a joint employer with D & K and therefore entitled to the immunity of section 440.11.

The supreme court has held that in a proper case two or more corporations can be a joint or common employer of a single employee. Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963). However, in this case Mr. Berry and Mr. Bryant were employees of D & K only. There was no express or implied contract of employment between RT and Mr. Berry or Mr. Bryant and no indicia of control. This court has recently held that even if the borrowing employer fully controlled the detail of an employee’s work, when there is no contract of hire between the employee and the alleged special employer and the contractual arrangements between the two employers expressly provide that the employee is not to be considered an employee of the alleged special employer, the borrowing employer is not the “special employer.” Thornton v. Paktank Florida, Inc., 409 So.2d 31 (Fla. 2d DCA 1981).

In the case sub judice, the lease and collateral agreements entered into between the parties all provide that D & K’s employees were not to become employees of RT. Additionally, there was no direction, supervision, or control over the deceased or Mr. Berry. The employment relationship between the drivers and RT did not create an implied contract of employment, and the written agreement between D & K and RT expressly provided they were not to become employees of RT.

We accordingly affirm the summary judgments entered against the appellant in favor of D & K and its insurer and reverse the summary judgments entered in favor of RT and its insurer and remand for proceedings consistent herewith.

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


text:
    KENT INSURANCE COMPANY, Appellant, v. RINCON ARGENTINA, INC., and Fall, Inc., d/b/a Les Follies, Appellees.
    No. 81-748.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Sept. 10, 1982.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellants.
    Mandina & Lipsky, Horton, Perse & Ginsberg and Edward A. Perse, Miami, for ap-pellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

As conceded by the appellees, the judgment under review shall be amended after remand to provide for the principal amount awarded to bear interest at six, rather than eight, per cent, from June 2, 1980, rather than February 19, 1980, until the date of the judgment, March 25, 1981. Otherwise, it is entirely affirmed. Stuyvesant Ins. Co. v. Butler, 314 So.2d 567 (Fla.1975); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979); All-Star Ins. Corp. v. Scandia, Inc., 353 So.2d 171 (Fla. 3d DCA 1977); Sec. 627.701, Fla.Stat. (1979).

Affirmed as modified.


text:
    JACAROL CLUB, INC. and Sunset-Toledo Land Company of Miami, Inc., Appellants, v. SUNSET VILLAS CONDOMINIUM ASSOCIATION PHASE IIIA, INC., Appellee.
    No. 81-980.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Sept. 15, 1982.
    Appeal from Circuit Court, Dade County; Herbert M. Klein, Judge.
    Papy, Poole, Weissenborn & Papy, Coral Gables, Meyers, Kaplan, Levinson, Kenin & Richards and John P. Horan, Miami, Buck & Tatum, Fort Lauderdale, for appellants.
    Murai, Wald & Biondo and Joseph M. Matthews, Miami, for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977).


text:
    Joseph Roger GOSSELIN, Florence Gosselin, his wife, and Beverly Gosselin, Appellants, v. Richard A. BURT, Appellee.
    No. 82-440.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Sept. 1, 1982.
    Malcolm Lewis Kneale, Miami, for appellants.
    Richard A. Burt, in pro. per.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

We reverse the partial summary judgment determining liability, as it is apparent from this record that there are genuine issues of material fact to be determined. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

On remand, the trial court is directed to discharge the equitable lien included in its order granting motion for partial summary judgment. Overholser v. Walsh & Nottebaum, 362 So.2d 471 (Fla. 3d DCA 1978).

Reversed and remanded for further proceedings.


author: .PER CURIAM.

text:
    Joseph M. CUMBY, Appellant, v. STATE of Florida, Appellee.
    No. 81-941.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Rehearing Denied Aug. 26, 1982.
    Paul L. Martz of Martz & McClure, St. Augustine, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   .PER CURIAM.

AFFIRMED.

See Guthrie v. State, 407 So.2d 357 (Fla. 5th DCA 1981).

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


text:
    Robert Lee FENN, Appellant, v. STATE of Florida, Appellee.
    No. 82-247.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Rehearing Denied Aug. 31, 1982.

      Robert Lee Fenn, pro se.
    No appearance for appellee.
   PER CURIAM.

The defendant below, Robert Lee Fenn, filed a post-conviction 3.850 motion after separate convictions of burglary and battery. His first contention is that separate convictions and sentences for these offenses were improper. This contention is based on the now defunct “single transaction” rule; therefore, the motion was facially insufficient and properly denied summarily by the trial court without hearing and without attachment of a copy of that portion of the files and records conclusively showing the prisoner entitled to no relief.

The second ground set forth in the prisoner’s motion, however, relates to a different issue: credit for time served before sentencing. The motion states:

Ground Two, the Defendant contends that the trial court failed to give Defendant sufficient credit for Jail time spent before sentencing from December 13, 1979, to March 13, 1980, in that he was held during that entire time on the charge of Burglary. Credit for Jail time is Mandatory. See, Dixon v. State, 339 So.2d 688 (Fla.1976) accordingly, the court must enter an order correcting Defendant’s Jail time credit.

The order of the trial court denying the motion in toto reads:

THIS CAUSE having come on to be heard on the 9th day of February, 1982, on defendant’s motion for post-conviction relief under Fla.R.Crim.P. 3.850 and the Court being fully advised in the premises, it is therefore,
ORDERED AND ADJUDGED that the motion is denied because there is no legal or factual basis for granting such relief after examining the file.
DONE AND ORDERED at Orlando, Florida this 9th day of February, 1982.
/s/ Joseph P. Baker CIRCUIT JUDGE

The problem, as we perceive it, is that the second ground of the motion is imprecisely worded and while arguably insufficient on its face, the trial judge apparently examined some portions of the file (presumably those showing arrest dates and the sentences with reflection of credit given) as a basis for denying the motion.

Accordingly, this cause is remanded for sixty (60) days in order for the trial court to either (1) attach that portion of the file and record that conclusively refutes Ground Two of Fenn’s motion, or (2) conduct an evidentiary hearing to determine whether Fenn was denied proper credit for time served prior to sentence per section 921.-161(1), Florida Statutes (1981). Brown v. State, 409 So.2d 129 (Fla. 5th DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So.2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So.2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So.2d 1106 (Fla. 5th DCA 1981).

REMANDED WITH INSTRUCTIONS.

COBB, SHARP and COWART, JJ., concur.

      . This is arguable because the appellant concedes in his appellate brief that he was credited with 92 days of pre-sentence time — one day more than the period alluded to in the motion he filed with the trial court.

      . Since there were two sentences for two crimes, the pre-sentence credit need not be allocated to but one of those sentences. The defendant is not entitled to duplicate credits. Dixon v. State, 339 So.2d 688 (Fla. 2d DCA 1976).


author: BARKDULL, Judge.

text:
    John E. MINARD, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES OF the STATE OF FLORIDA, and S. D. Natale, individually, Appellees.
    Nos. 81-228, 81-951.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Sept. 15, 1982.

      Greenbaum, Wolff & Ernst and Saul J. Morgan, Miami, for appellant.
    Richard Dunn, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BARKDULL, Judge.

The appellant takes these consolidated appeals from a summary judgment and order of dismissal which terminated his suit for damages for injuries sustained in a hit- and-run accident.

Minard filed suit against S. D. Natale, a State Trooper, alleging that Natale was liable for injuries which Minard suffered in a hit-and-run accident because Natale failed to stop the driver of the hit-and-run vehicle.

At night, Natale, an off-duty Highway Patrolman, in civilian clothing, in his personal car, noticed a car whose taillights were not functioning. Without intentionally doing so, Natale was going in the same direction as the car. The driver of the car never did anything that would have caused him to stop the car had he been on duty. Further, there was evidence that off-duty troopers are instructed by their department not to arrest except for felony offenses.

Natale never saw the car strike Minard; he only saw a flash of white above the car which he realized were notebook papers. Associating the paper with a child, Natale stopped and walked up and down the shoulder until he found the injured Minard. Although Natale searched for the hit-and-run vehicle, it was never located. The trial court granted summary judgment in favor of Natale. The complaint was then dismissed as to the two departments of the state, on the ground that these agencies would be liable only if Natale were liable. Minard takes consolidated appeals from the summary judgment and the order of dismissal.

Natale had no duty to arrest the driver of the car. Section 790.052 and cases cited by the appellant are inapplicable because they are all founded upon a prior determination that a duty existed. Natale was off-duty, he had been ordered not to make misdemeanor arrests, and he was not intentionally pursuing the vehicle. He was under no duty to stop the car; further, Section 790.-052 does not impose a duty upon off-duty officers but instead gives the officer the option. Nor was Natale obligated to follow the car; in fact, his responsibility was to render aid to the injured Minard, which he did.

The summary judgment orders under review are affirmed.

Affirmed.


text:
    Anthony Richard CATINELLA, Appellant, v. Grace Marrian CATINELLA, Appellee.
    No. 81-1894.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Sept. 15, 1982.
    Richard F. Hayes, Coral Gables, for appellant.
    Walton & Garrick and Edward L. Walton, Miami, for appellee.

      Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   PER CURIAM.

Appellant/husband appeals from a judgment denying his petition to modify and from an award to appellee/wife of $4,200.00 for arrearages of alimony and child support. Appellee cross-appeals from the amount of arrearages awarded her and from the court’s refusal to award attorney’s fees.

After carefully reviewing the record and all points raised on appeal and cross-appeal, we have concluded that no reversible error has been demonstrated. Accordingly, the judgment appealed is affirmed.

Affirmed.


text:
    Leon N. GREENE, M.D., Appellant, v. Deborah STONE and Robert Stone, Appellees.
    No. 81-2039.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Sept. 2, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke and Diane Tutt, Miami, for appellant.
    Tobin & Thomson, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Leon Greene appeals from an order of the trial court denying a motion to quash service of process. He alleges as error that individual service was never made upon him and, therefore, the trial court had no jurisdiction. We agree and reverse.

Deborah and Robert Stone, plaintiffs below, filed an action against Dr. Greene and others alleging medical malpractice. The first complaint named Dr. Leon N. Greene, d/b/a Leon N. Greene, P.A. The summons and complaint were served by way of corporate service upon Dr. Greene’s nurse. The P.A. appeared and moved for summary judgment, alleging that the professional association had been formed after the alleged malpractice. The trial court granted summary judgment in an order that reads in part, “.. . that the Defendant’s Motion for Summary Judgment insofar as the professional association of Dr. Leon N. Greene is concerned be and the same is hereby granted but that the cause against Leon N. Greene, M.D., shall remain.”

Thereafter, the professional association filed a motion to vacate the trial court’s order and, as grounds for that motion, alleged that Dr. Greene had not been served as a party, that all the pleadings had been directed to the P.A. and that the P.A. had, in no way, responded on behalf of Leon N. Greene, M.D. The court granted the motion and entered an amended order striking “but that the cause against LEON N. GREENE, M.D. shall remain” from its prior order. Other defendants to this action (not parties to this appeal) filed a motion to clarify the trial court’s order and, in the alternative, to quash the service of process upon Leon N. Greene, M.D., individually. The trial court denied the motion to quash or clarify and required Dr. Greene to answer the complaint.

We agree that Dr. Greene was never properly served and, accordingly, reverse the order of the trial court denying Dr. Greene’s motion to quash service of process. Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977).

Appellee’s reliance, in its Supplemental Authority, on Garcia v. Dade County Public Health Trust, 369 So.2d 634 (Fla. 3d DCA 1979) and Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967) is misplaced. A statute of limitations question was not raised below or briefed or argued here.

Accordingly, the order of the trial court is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.


text:
    E. V. CONSTRUCTION CO., Appellant, v. Jack O. NEWMAN and Alice J. Newman, his wife, Appellees.
    No. 81-2265.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Kaplan & Hodin, and Abbey L. Kaplan, Miami, for appellant.
    Schoninger, Jankowitz & Siegfried and Steven M. Siegfried and David Sofge, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

In an action to impress and foreclose a mechanic’s lien, the trial court found against the plaintiff-appellant, a general contractor, solely because it admittedly did not serve the appellees with a notice to owner under Section 713.06(2)(a), Fla.Stat. (1979). We conclude that Section 713.05, which requires no such notice, is instead controlling in the present factual situation and therefore reverse the judgment below.

The operative facts are entirely undisputed. On May 1, 1978, United Five, Inc., which was then engaged in the development and sale of several single-family residences in Dade County, entered into an unrecorded contract for the purchase and sale of a then-vacant parcel, with a home to be constructed thereafter, with the present appellees, Mr. and Mrs. Newman. About six weeks later, on June 19, 1978, United Five and the appellant, E. V. Construction Co., orally contracted for E. V. to build the house in question. On July 11, E. V. duly filed and recorded the notice of commencement required by Sec. 713.13, Fla.Stat. (1979). It completed its work, at an out-of-pocket cost of over $29,000, on November 3, 1978. On November 15,1978, the Newmans took title to the property by a warranty deed from United Five which was recorded immediately thereafter. At the closing, United Five also gave the Newmans, who were not represented by counsel, a “no-lien affidavit” which, because United Five had not paid E. V., turned out to have been demonstrably false. On January 30, 1979, within the 90-day period after completion provided by Sec. 713.08(5), Fla.Stat. (1979), E. V. filed, recorded and served its claim of lien upon the appellees, who were by now titleholders to the property; this was the first direct contact between the parties to the present litigation.

Since E. V. admittedly conformed to every other provision of the mechanic’s lien law, the sole issue below and here is whether it was necessary for it to serve the “notice to owner” provided by Sec. 713.06(2)(a). Under the specific terms of Sec. 713.05, however, a lienor who is in privity with “the owner” is not required to do so. Because there is no doubt that E. V. dealt directly solely with United Five, was therefore in privity only with that concern, and was not in privity with the Newmans, e.g., Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla. 1952); Economy Suppliers and Fabricators, Inc. v. Centennial Homes, Inc., 325 So.2d 421 (Fla. 4th DCA 1976), during the pertinent 45-day period after commencement provided for giving the notice, Sec. 713.-06(2)(a), the determinative issue is a still-narrower one. It is simply whether — in the present unusual context in which legal ownership of the property changed hands during the period in which the various steps required to perfect a mechanic’s lien took place — United Five or the Newmans (or both) were the “owners” of the property within the meaning of Secs. 713.05-.06. The terms of the statute itself resolve the question. Sec. 713.01(12), Fla.Stat. (1979) provides:

“Owner” means a person who is the owner of any legal or equitable interest in real property, which interest can be sold by legal process, and who enters into a contract for the improvement of the real property.

It seems clear that while this definition applies to United Five, which was the legal titleholder when it contracted with E. V., it just as clearly does not include the New-mans. Although, as the purchasers under the contract for the sale of the lot, the appellees held equitable title, B. W. B. Corp. v. Muscare, 349 So.2d 183 (Fla. 3d DCA 1977), the second qualification was not fulfilled — -they did not “enter into a contract for the improvement of real property.” It is obvious that their agreement with United Five simply to purchase realty does not qualify as such an agreement. See also Sec. 713.01(1) (“ ‘Contract’ means an agreement for improving real property, written or unwritten, express or implied, and includes extras or change-orders as herein defined.”); Sec. 713.01(2) (“ ‘Contractor’ means a person other than a materialman or laborer who enters into a contract with the owner of real property for improving it, or who takes over from a contractor as above defined the entire remaining work under such contract.”) Upon this analysis, which we think appears from a plain reading of the statutory language, cf. Sec. 713.-37, Fla.Stat. (1979), E. V. was in privity with the only “owner” of the property, United Five, and could thus safely deal with it to the extent at least of not being required to give a Sec. 713.06(2)(a) notice. Surely, it was not required to give such a notice to the Newmans, with whom it did not contract, and of whose identity it was not and had no reason to be aware. The judgment below, which is founded on the opposite conclusion, therefore cannot stand.

While this result may indeed be harsh upon the appellees, it should be remembered that, as in most such controversies, the courts must choose which of two relatively innocent parties should suffer for the sins of an admitted-but-long-gone malefactor — in this case, United Five, which took the Newmans’ money and not only did not pay E. V. with it, but lied to the purchasers that it had. As between the two parties before us, however, it can at least be said that E. V. did all it could have — giving each required statutory notice to the party of whom it was on notice. On the other hand, the Newmans took title after E. V.’s notice of commencement had already been duly recorded. Under the statutory scheme as we interpret it, their action in ignoring this “red flag” of the contractor’s outstanding interest — which would have undoubtedly been avoided had they retained counsel for the closing — results in their now having to pay twice for the construction of their home.

For these reasons, the judgment below is reversed and the cause remanded with directions to enter judgment for the plaintiff in an amount to be determined by appropriate proceedings in the trial court after remand.

Reversed.

      . This is because it is obviously unnecessary to give formal notice to one with whom the contractor is dealing face-to-face.


text:
    Jorge SANZ and Georgina Sanz, husband and wife, Appellants, v. IRVING FACTORS CORPORATION, a New York corporation, formerly U V Factors Corporation, Appellee.
    No. 81-2451.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Sept. 2, 1982.
    Leonard H. Rubin, Miami, for appellant.
    Carlton, Fields, Ward, Emmanuel, Smith & Cutler and Thomas J. Roehn, Tampa, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The final judgment under review is affirmed in all respects, save for a miscalculation of the amount to be paid by the appellants in the said final judgment. Although the final judgment reserves jurisdiction to award the appellee reasonable attorney’s fees, the amount ordered to be paid by the said judgment inadvertently includes a charge of $16,366.14 for attorney’s fees incurred therein, a charge which appellee concedes should not have been included in the amount due and owing under the guaranty sued upon. We, accordingly, reduce the amount ordered to be paid in the final judgment by $16,366.14 and remand the cause to the trial court to so modify the final judgment in accordance with this order. This ruling shall be without prejudice to the appellee to seek an order for reasonable attorney’s fees herein separate and apart from the final judgment. In all other respects, the final judgment is affirmed. Central Investment Associates, Inc. v. Leasing Service Corp., 362 So.2d 702 (Fla. 3d DCA 1978).

Affirmed in part; reversed in part.


text:
    RYDER TRUCK RENTAL, INC., Eaton Corporation and B. F. Goodrich Company, Appellants, v. William Earl RAY and Patricia Ray, his wife, Appellees.
    No. 82-241.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Sept. 1, 1982.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, and Kim-brell, Hamann, Jennings, Womack, Carlson & Kniskern, and Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for appellants.
    Colson, Hicks & Eidson and Mary Friedman, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We affirm on the authority of the rule that when one of the parties is domiciled in the state of Florida, the doctrine of forum non conveniens does not permit the dismissal even of a claim which arose in and has almost all its relevant contacts with another state. Houston v. Caldwell, 359 So.2d 858 (Fla.1978); Sempe v. Coordinated Caribbean Transport, Inc., 363 So.2d 194 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 467 (Fla.1979). Moreover, we cannot hold that the trial court abused its discretion under Section 47.122, Fla.Stat. (1979) in declining to transfer the case to another Florida county which itself had limited meaningful relationship to the action. This association, while greater than that of Dade County where the case was brought, was not sufficient to overcome, as a matter of law, the plaintiff’s statutory right to the choice of forum. See Houchins v. Florida East Coast R. Co., 388 So.2d 1287 (Fla. 3d DCA 1980), and cases cited.

Affirmed.


text:
    Ruth Ellen WOODS, Appellant, v. Michael A. BUTTER, Appellee.
    No. 82-471.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Sept. 2, 1982.
    Holland & Knight and Gary M. Carman, Miami, for appellant.
    Abramson & Butter and Stephen H. Butter, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

This is an appeal by the wife of the trial court’s order denying wife’s exceptions to a General Master’s Report which arose out of a suit by the wife to enforce a property settlement agreement. No issue of alimony or child support is present.

The first issue presented deals with the husband’s failure to convey certain condominium property located in Colorado to a trustee who is not a party to this litigation. The Master found that the trustee was an indispensable party. Neither the Master nor the trial court erred in concluding that the trustee (Corbett) is an indispensable party. Ames v. Ames, 126 So.2d 754, 756 (Fla. 1st DCA 1961). The trial court, in its order, specifically gave leave for the trustee to appear and left available to the wife an enforcement alternative.

As a second point, the wife alleges the trial court erred in denying an exception to the Master’s Report regarding Paragraph 19 of the agreement.

The law is well-established that a husband’s obligation to pay a debt to a third party cannot be enforced by way of contempt. State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (1941); Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974); State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla. 2d DCA 1966).

We decline appellant/wife’s invitation to retreat from this well-established principle. The judgment of the trial court is, accordingly, affirmed.

Affirmed.

      . The property settlement agreement upon which enforcement is sought is a complex twenty-two page document which creates rights, duties and obligations on the part of husband, wife and the trustee. Paragraph 18 of the agreement is set forth fully here.
      SALE OF POWDERHORN CONDOMINIUM: The parties agree to the sale of the Powerhom [sic] Condominium to Dan L. Ste-fanoff and Vicki Stefanoff for $275,000. There shall be a purchase money second mortgage to Deborah Corbett, as Trustee and any cash received at closing shall go to the Husband.

      . The Ames court suggests that if the trust is passive or inactive, a trustee may not be an indispensable party. We do not reach that issue.

      . The pertinent portions of the trial court’s order denying exceptions to the Master’s Report are:
      2) Paragraph 2c of the Master’s Report is hereby specifically approved and ratified. The Court finds that the Trustee, Deborah Corbett, is an indispensable party to this cause and must appear before the Court in order for the Wife to receive the requested relief.
      3) The Trustee may in lieu of personal appearance file an affidavit submitting herself to the jurisdiction of this Court.
      4) Upon the filing of this affidavit, the Wife may move the Court for the entry of an order compelling the Husband to execute the deed to the Powderhorn Condominium pursuant to paragraph 18 of the Property Settlement Agreement. The Wife may notice her Motion for hearing on the Court’s motion calendar.

      . Paragraph 19:
      PARTIES DEBTS: The Husband shall pay the outstanding obligations of the parties in an amount not to exceed $35,000.00. A list of these creditors and the amounts owed is attached as Exhibit A. The Husband shall have a reasonable time to satisfy these debts and obligations. The Husband shall hold the Wife harmless regarding all claims, demands and lawsuits, including attorneys’ fees incurred with reference to any creditor on the above mentioned list.
      Exhibit A, referred to, schedules twenty-five different obligations ranging from $11.00 to $5,000.00.


author: GRIMES, Acting Chief Judge.

text:
    Curtis L. RUDOLPH, Appellant, v. J. Albert LEWIS, Appellee.
    No. 81-2108.
    District Court of Appeal of Florida, Second District.
    July 16, 1982.
    Rehearing Denied Aug. 23, 1982.
    Daniel Joy, Sarasota, for appellant.
    Alan M. Gerlach, Jr. of Livingston, Patterson & Strickland, P.A., Sarasota, and Bruce D. Chapman of Berg & Chapman, Venice, for appellee.
   GRIMES, Acting Chief Judge.

Rudolph appeals a final judgment against him for breach of contract.

Appellee (Lewis) entered into a contract with Venice Marine Inlet for the purchase of a yacht, tendering a deposit of $3,750. However, prior to delivery of the yacht, appellant (Rudolph), a creditor of the marina, assumed control of the facility through an assignment in lieu of foreclosure. Since the new owner no longer stocked the yacht originally ordered, Lewis returned to the marina and placed an order for a substitute yacht. This second agreement, signed by Lewis and one Daniel Blake, an employee of the marina, stated that it supersedes the earlier contract. The form contract stated “this order is not valid unless signed by dealer.” Directly below this statement were two lines, the first marked “dealer,” and the second “salesman.” Leaving the dealer line blank, Blake signed the line marked “salesman.” Rudolph later refused to accept the contract, and Lewis instituted this suit for damages. After a nonjury trial, the lower court found that Blake had authority to bind his employer and entered judgment for Lewis in the sum of $9,300.

We need not consider the facts which might support a finding of apparent authority because the presence of the acceptance clause in the agreement prevented the creation of an enforceable contract. An acceptance clause specifically limits the authority of an agent and reduces an agreement to the status of an unaccepted offer. 1 A. Corbin, Corbin on Contracts § 33 (1963). Only when the agent’s principal accepts the offer does a contract arise. Knickerbocker Fine Cars v. Peterson, 118 So.2d 639 (Fla. 3d DCA 1960); Clary & Sons Plumbing & Heating v. Local Trademark, Inc., 250 S.W.2d 916 (Tex.Civ.App.1952). The claim of apparent authority is negated on the face of the instrument. Meekins-Bamman Prestress, Inc. v. Better Construction, Inc., 408 So.2d 1071 (Fla. 3d DCA 1982).

When Blake did not sign the agreement as dealer, Lewis was on notice that he lacked the authority to create a binding contract. In any event, Lewis admitted that he knew Blake was not the dealer. Rudolph, the actual dealer, did not accept the offer and informed Lewis of his decision to reject it. Since there was no contract, Rudolph may not be held accountable for a breach.

In the posture of the case, it was unnecessary for the court to consider whether Rudolph had any obligation to Lewis for his $3,750 deposit. We therefore reverse the final judgment but remand for proceedings to determine whether Lewis may recover his deposit from Rudolph.

SCHEB and SCHOONOVER, JJ., concur.


author: JORGENSON, Judge.

text:
    S. E. BASTIDA, Appellant, v. George E. BATCHELOR and Alfredo Zanatti, Appellees.
    No. 81-42.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Rehearing Denied Sept. 1, 1982.

      Dixon, Dixon, Hurst, Nicklaus & Webb and M. Stephen Smith, III, Miami, for appellant.
    Howard, Brawner & Lovett and Phillip L. Brawner, Roger Besu, Joseph C. Segor, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   JORGENSON, Judge.

S. E. Bastida, plaintiff below, appeals from a directed verdict rendered in favor of defendants, George E. Batchelor and Alfredo Zanatti, at the close of plaintiff’s case. We fail to see that the basis as stated by the trial court, i.e., the absence of an indispensable party, is controlling, and reverse.

Bastida sold shares in Aeronaves del Peru, S. A. to appellees. The purchase price was to be paid in set installments and, in the event of default, the shares were to be returned.

Independent of and subsequent to the foregoing transaction, appellee George E. Batchelor made a cash loan to appellant, financed through one of Batchelor’s corporations, Aero Finance, Inc. The collateral for the loan was the assignment of the contract reflecting payment due for the Aeronaves shares. Defendants failed to complete payment and Bastida initiated suit against them. At the close of plaintiff’s case, defendants contended the issues could not be decided without the participation of Aero Finance, the assignee of the shares. The trial court entered a final judgment in favor of Batchelor and dismissed the action with respect to Zanatti.

Aero Finance is not an indispensable party. The record reflects that the assignment to Aero Finance was as collateral. The value of the collateral was disproportionate to the loan and the business relationships of the defendants and Aero Finance were intertwined. Bastida retains a sufficient interest in the contract to maintain his position as the proper party plaintiff. “Every action may be prosecuted in the name of the real party in interest.” Fla.R.Civ.P. 1.210. See also Tampa Properties, Inc. v. Great American Mortgage Investors, 333 So.2d 480 (Fla. 2d DCA 1976). Bastida is the individual who stood to lose or gain and, thus, is the real party in interest. H. Trawick, Florida Practice and Procedure, § 4-3 (1981). As we noted in Stanley Fine Furniture, Inc. v. North River Insurance Company, 411 So.2d 210 (Fla. 3d DCA 1982):

3A Moore’s Federal Practice, ¶ 17.13[1] (2d ed. 1979), in discussing Federal Rule of Civil Procedure 17(a), which is the federal counterpart to Florida Rule of Civil Procedure 1.210(a), states:
The inclusion [of this provision] was to make it clear that a party with whom or in whose name a contract has been made for the benefit of another was not to be deprived of his common law right because another was the beneficial owner, and also to make certain that he need not join the beneficial owner.

Id. at 211, n. 1.

An indispensable party has been defined as one without whom the rights of others cannot be determined. Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975); Grammer v. Roman, 174 So.2d 443 (Fla. 2d DCA 1965). The absence of Aero Finance does not affect the rights of either of the appel-lees or those of Aero Finance.

Reversed and remanded.

      . Viewed in a light most favorable to appellees, Alfredo Zanatti was the purchaser of the stock and George Batchelor was a guarantor of performance on Zanatti’s behalf.

      . This secondary transaction is not an issue on this appeal.


text:
    Marilyn R. HAMILTON, as Personal Representative of the Estate of Ralph R. Hamilton, deceased, Appellant, v. PAR ASSOCIATES, Hufsey-Nicolaides Associates, Inc., Elizabeth O. Taylor, Patricia Jean Miller and Florida National Bank of Miami, as Personal Representatives of the Estate of Leslie B. Taylor, deceased, and Herbert M. Schwartz, Appellees.
    No. 81-1462.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Rehearing Denied Sept. 8, 1982.
    Virgin, Whittle & Garbis and Gary Gar-bis, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer and Donna S. Catoe, Pyszka & Kessler, Greene & Cooper and Sharon L. Wolfe, Miami, for appellees.
    Before PEARSON, DANIEL and FERGUSON, JJ., and WILLIAM C. OWEN, JR., (Ret.), Associate Judge.
   PER CURIAM.

Appellees, having failed to establish the absence of any genuine issue of material fact relating to either liability or causation, were not entitled to a summary judgment in this cause. Accordingly, the judgment is reversed and this cause is remanded for further proceedings.

Reversed and remanded.


text:
    Steven Darby McDONALD, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1020.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Rehearing Denied Sept. 15, 1982.
    Steven Darby McDonald, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that petitioner is entitled to relief, the denial of his motion is reversed.

Remanded for correction of sentence in accordance with Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

Reversed and remanded.