text:
    PENNINGTON GRAIN & SEED, INC., a Georgia Corporation, Appellant, v. MURROW BROTHERS SEED CO., INC., a Georgia Corporation, Appellee.
    Nos. WW-468, WW-469.
    District Court of Appeal of Florida, First District.
    June 22, 1981.

      Russell W. LaPeer and George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for appellant.
    Gerard & Matthews, Athens, Ga., and Ernest M. Page, Jr., Madison, f)r appellee.
   THOMPSON, Judge.

In these cases, which have been consolidated on appeal, the appellant argues that the trial court erred by dismissing an amended third party complaint against the appellee, because the court did have jurisdiction over the appellee, pursuant to Florida’s long arm statute. We agree and reverse.

In October 1978, the appellant (“Pennington”) was sued in Florida by two Florida residents, who alleged that Pennington sold soybean seed to a Florida corporation, which in turn sold the seed to the plaintiffs. The plaintiffs alleged that the seed did not fully germinate as expressly and impliedly warranted by Pennington, and thus, there was a breach of warranty, as well as negligence and false labeling of the seed. Pennington filed a third party complaint against the appellee (“Murrow”), and Murrow filed motions to dismiss. Pennington filed affidavits in opposition to those motions and the trial court entered Orders in April and in May 1980, whereby the third party complaint was dismissed with leave to amend.

On May 27, 1980, Pennington filed an amended third party complaint against Murrow, alleging in part that: Pennington had purchased from Murrow certain soybean seed. This transaction took place in Georgia, and Pennington, which never handled the seed, was to advise Murrow where the seed was to be delivered. Subsequently, Pennington advised Murrow to deliver the soybean seed to a Madison, Florida corporation. Murrow made this delivery, using its own trucks, and it also placed Pennington’s name on labels affixed to the bags of seed. The Florida corporation later sold the seed to two Florida residents, who in turn sued Pennington. Based partially on these allegations, Pennington contended that Murrow was subject to the jurisdiction of Florida’s courts pursuant to § 48.193, Fla.Stat., and that Murrow should be held responsible for any amounts which may be recovered against Pennington by the Florida plaintiffs.

In June 1980, Murrow filed various affidavits along with a motion to dismiss the amended third party complaint. Murrow asserted in part that it had insufficient contacts with the State of Florida, and therefore, it was not subject to the jurisdiction of Florida’s courts. After a hearing, the trial court entered its Order, dismissing the amended third party complaint without leave to amend.

The Florida Supreme Court, in Electro Engineering Products Co. v. Lewis, 352 So.2d 862, 864 (Fla.1977), has noted that procedurally,

the plaintiff must initially allege in the complaint sufficient jurisdictional facts [to fall within the appropriate provisions of the long arm statute.] . .. The burden then shifts to the defendant to make a prima facie showing of the inapplicability of the Long Arm statute. At that time the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.

See also Guritz v. American Motivate, Inc., 386 So.2d 60, 62 (Fla. 2d DCA 1980). Thus, the initial inquiry is whether the allegations of the complaint are facially sufficient to support long arm jurisdiction pursuant to the actual language of § 48.193.

Pennington’s only meaningful argument on appeal concerns the applicability of § 48.193(l)(f)2, which reads as follows: 48.193 Acts subjecting persons to jurisdiction of courts of state.—

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.

Pennington’s allegations facially support long arm jurisdiction under this statute because Pennington basically pled that Murrow processed soybean seed which was delivered to and used in Florida in the ordinary course of commerce, and the use of that seed resulted in injury to persons or property within this state.

Having determined that Pennington’s allegations are facially sufficient to support long-arm jurisdiction, another point must be decided. As stated in Lakewood Pipe v. Rubaii, 379 So.2d 475, 477 (Fla. 2d DCA 1979), app. dism. 383 So.2d 1201 (Fla.1980), “[e]ven where there is facial jurisdiction under the Florida long arm statute, the ^party over which jurisdiction is asserted must have had sufficient minimum contacts with Florida to satisfy due process requirements.” See also Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305, 1308 (Fla.1981); Osborn v. University Soc., Inc., 378 So.2d 873, 874 (Fla. 2d DCA 1979). Precisely this point was raised by Murrow in its motion to dismiss Pennington’s amended third party complaint.

“The inquiry into whether there are ‘minimum contacts’ between the forum state and a nonresident business enterprise must look at the nature of the defendant’s activities in the state.” Ford Motor Co., 392 So.2d at 1310. In this regard, Murrow attached an affidavit to its motion to dismiss, whereby its president attested that Murrow essentially has no business activities or relations within Florida. This affidavit may have been sufficient to show the inapplicability of the long arm statute, if Pennington had simply alleged that Murrow processed seed that was used in Florida. See Harlo Products Corp., v. J. I. Case Co., 360 So.2d 1328, 1330 (Fla. 1st DCA 1978). However, Pennington’s allegations are more detailed than this, and coupled with the affidavits submitted in response to Murrow’s motions to dismiss, Pennington has adequately stated and substantiated the jurisdictional prerequisites for the use of Florida’s long arm statute.

Pennington alleged that after it purchased the soybean seed from Murrow, it advised Murrow to deliver that seed directly to Florida, and Murrow did so, using its own trucks. Pennington’s production manager submitted an affidavit attesting to these allegations. Murrow responds to these factors by arguing that all transactions between itself and Pennington took place in Georgia, while Murrow’s president attested earlier that Murrow conducts no business in Florida, and that the bagging and delivery of the seed “was done for and on behalf of Pennington . .. and at its direction and control.” However, we find that Murrow’s contentions are unpersuasive.

In determining whether a foreign corporation’s activities in a State posit sufficient minimum contacts to allow for the constitutional exercise of the State’s long arm jurisdiction, the courts have focused on whether the foreign corporation “ ‘purposefully avails itself of the privilege of conducting activities within the forum state.’ ” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980), quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed. 1283 (1958). For example, in Life Laboratories, Inc. v. Valdes, 387 So.2d 1009 (Fla. 3d DCA 1980), the court pointed out the applicability of the “purposefully avails” test in construing § 48.193(l)(f)2, Fla.Stat. The court noted that

A manufacturer whose products pass through the hands of one or more middlemen before reaching their ultimate users cannot disclaim responsibility for the total distribution pattern of the products. If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state.

Valdes, 387 So.2d at 1011, quoting Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893, 902; 458 P.2d 57, 64; 80 Cal.Rptr. 113, 120 (1969). See also World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. at 567-68 (“The forum State does not exceed its powers under the Due Process clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”)

Pennington’s allegations, as supported by affidavits, clearly show that Murrow sold its soybean seed in circumstances whereby it should have reasonably known that its product would be resold in Florida and purchased by consumers in this state. Moreover, by virtue of the fact that Murrow actually delivered its product to Florida, it appears that Murrow knew that its product would be resold and purchased here, and that Murrow was directly (or at least indirectly) serving the market for its product in Florida.

Obviously, there was more than a simple fortuity or a mere likelihood that Murrow’s product found its way into Florida. See World-Wide Volkswagen, 444 U.S. at 295, 297, 100 S.Ct. at 566, 567. Instead, it is readily apparent that Murrow has “purposely availed” itself of acting or conducting activities in Florida, and accordingly, Florida’s exercise of long arm jurisdiction over Murrow, pursuant to § 48.193(l)(f)2, Fla.Stat., will not violate due process requirements. Therefore, we reverse the trial court’s Order which dismissed Pennington’s amended third party complaint.

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


source: Caselaw Access Project

author: BOOTH, Judge.

license: Public Domain

text:
    Josephine ALBERTINI, Appellant, v. MCDONALD’S and Gab Business Services, Inc., Appellees.
    No. UU-199.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Rehearing Denied Aug. 21, 1981.

      L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    John F. McMath, Miami, for appellees.
   BOOTH, Judge.

The sole item of dispute in this workers’ compensation appeal is a physician’s examination fee of $131 which was incurred in connection with a medical report placed into evidence by the claimant. The claimant sought reimbursement for the examination fee on the ground that the fee was part of the taxable costs awarded to claimant as a result of successful prosecution of her claim. The deputy commissioner, however, held that the examination fee was not in-cludable in his prior award of costs because the employer/carrier did not agree to pay for the examination when the medical report was put into evidence in lieu of the physician’s live testimony.

The employer/carrier urges that an additional basis for upholding the deputy’s order is the pre-trial stipulation wherein claimant indicated she would not seek reimbursement for Dr. Turke’s fee. The pre-trial stipulation referred to is written on a printed form with the headings (listed in order): Medical treatment authorized,” “Medical treatment claimed but not accepted,” and “Medical not authorized but not claimed.” The employer/carrier argues that, because Dr. Turke’s name was written under the latter heading, which does not limit its terms to medical “treatment,” the claimant agreed not to seek recovery of any expenses associated with Dr. Turke.

Reimbursement for medical treatment is covered by Florida Statutes, Section 440.13, which, with certain exceptions, requires that a physician’s treatment be authorized by the employer/carrier. Expert witness fees and costs of prosecution of a claim, on the other hand, are recoverable under Florida Statutes, Section 440.31 or Section 440.-32, neither of which require prior “authorization” by an employer or carrier. Therefore, any stipulation that fees or costs were not “authorized” would be a meaningless gesture. Construing the stipulation form as a whole, it is apparent that the claimant stipulated that she would not seek to recover the cost of any treatment provided by Dr. Turke. This does not evidence an intent to forfeit recovery of an examination fee related to preparation of expert testimony. The only provision of the stipulation form which even arguably relates to the anticipated costs of prosecuting the claim is the section in which the parties list their witnesses; Dr. Turke is listed in this section as the claimant’s witness, to be called “by report.”

Dr. Turke’s report was admitted into evidence in lieu of his íive testimony, and the reasonable costs of preparing that report should have been awarded along with the other costs of prosecuting the claim. See Stich v. Independent Life & Accident Insurance Company, 139 So.2d 398 (Fla.1962); Belcher v. R. C. Motor Lines, IRC Order 2-1933 (October 16, 1969), cert. denied 234 So.2d 135 (Fla.1969).

The deputy’s order is REVERSED and REMANDED with directions to award claimant the reasonable costs incurred in preparation of Dr. Turke’s medical report.

ERVIN, J., concurs.

JOANOS, J., dissents without written opinion.


author: PER CURIAM.

text:
    DADE COUNTY PUBLIC HEALTH TRUST, d/b/a Jackson Memorial Hospital, Appellants, v. Maria Eugenia FUENTES, Appellee.
    No. 80-1985.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Fowler, White, Burnett, Hurley, Baniclc & Strickroot and Michael J. Murphy and Henry Burnett, Miami, for appellants.
    Schwitalla & Lombana and Hector J. Lombana, Coral Gables, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.330(a)(3)(F); 1.390(b).


text:
    The STATE of Florida, Appellant, v. Clifford HOLDER, Appellee.
    No. 80-1902.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.

      Bennett H. Brummer, Public Defender, and Michael Zelman, Asst. Public Defender, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

The state appeals the dismissal of an information charging the defendant with burglary and grand theft. We have jurisdiction.

Pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, the defendant filed a motion to dismiss the charges, which read as follows:

THE DEFENDANT, CLIFFORD HOLDER, by and through his undersigned attorney, moves this Honorable Court to dismiss the Information against the Defendant. As a basis for this motion, the Defendant alleges that there are no material disputed facts an i the undisputed facts do not establish a prima facie case of guilt against the Defendant.

The undisputed facts are as follows:

1. On July 2, 1980, Officer Stubllefield saw the Defendant in a walkway between two buildings with a box in his hands.
2. The officer yelled for him to halt and the Defendant left the scene.
3. The Defendant was stopped about half a block away by another officer.
4. The Defendant was placed under arrest for Burglary and Grand Theft.
5. There are no other undisputed facts.
WHEREFORE, the Defendant requests that this Honorable Court dismiss the Information against the Defendant.

The state moved to strike the motion on the basis that it was not made in good faith, not properly sworn to, and omitted substantial material facts. At a hearing on the motion and in a demurrer filed pursuant to Rule 3.190(d), the state proffered additional facts which allegedly established a prima facie case against the defendant. Specifically, the state showed that the defendant and two other men were observed in an alleyway carrying a box and a television set by police responding to a burglar alarm in a business located next to the alleyway. When ordered to halt, the men dropped the items and fled. The state also alleged that upon further investigation the police discovered a hole approximately four to five feet in diameter knocked in an outside wall of the business. The president of the firm then arrived on the scene, identified the merchandise, and confirmed that no one had given the three men permission to enter the premises or remove property. After the hearing, the defendant’s motion was granted.

On this appeal, the state contends that the motion to dismiss was legally insufficient and should have been summarily denied by the trial court because it was not sworn to by the defendant, and failed to either demonstrate that the undisputed material facts did not amount to a prima facie case of guilt against the defendant or establish a valid defense. We agree and reverse.

Rule 3.190(c)(4) expressly requires that a motion to dismiss be sworn to, contemplating that the declarant aver upon oath that the facts alleged are true. The motion sub judice was not sworn to by the defendant himself, rather, the defendant’s attorney swore that the facts therein were true “to the best of his knowledge.” Clearly, the facts set forth in the motion could not possibly have been within the personal knowledge of the defendant’s attorney unless he happened to have been on the scene of the alleged crime. In State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981), the court analyzed this requirement of Rule 3.190(c)(4) in a similar context and concluded that

[a] motion to dismiss under this rule should be summarily denied when it is not sworn to by the defendant who, by taking the oath, thus subjects himself to the penalties of the perjury if his recitation of “undisputed facts” is false.

Id. at 1016 (emphasis supplied). See State v. Love, 143 Fla. 883, 197 So. 534 (1940); State v. Shull, 390 So.2d 1233 (Fla. 5th DCA 1980); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). Accord State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974) (where this court affirmed the dismissal of an information after first observing that the motion was signed and sworn to by the defendant’s attorney, but that the state had failed to object to the defect).

Rule 3.190(c)(4) also requires that the movant demonstrate that the undisputed facts do not establish a prima facie case of guilt or, alternatively, that they establish a valid defense to the charges. State v. Torres, 375 So.2d 889 (Fla. 3d DCA 1979); State v. Sedlmayer, 375 So.2d 887 (Fla. 3d DCA 1979); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, supra. The defendant’s bald assertion that “the undisputed facts do not establish a prima facie case of guilt” does not satisfy this requirement. See State v. Torres, supra; State v. Sedlmayer, supra.

Based on the defendant’s failure to personally swear to the facts alleged and his failure to either refute a prima facie case of guilt or establish a valid defense to the charges, we conclude that the motion to dismiss should have been automatically denied by the trial court.

Even aside from the procedural shortcomings of the defendant’s motion, however, we find that the state’s demurrer sufficiently raised substantial material issues of fact not addressed in the defendant’s motion which would constitute a pri-ma facie case of guilt, thus necessitating the denial of the motion. State v. McCray, 387 So.2d 559 (Fla. 2d DCA 1980); State v. Smith, 376 So.2d 261 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); State v. Hires, 372 So.2d 183 (Fla. 2d DCA 1979); State v. McIntyre, 303 So.2d 675 (Fla. 4th DCA 1974); State v. De Jerinett, 283 So.2d 126 (Fla. 2d DCA), cert. denied, 287 So.2d 689 (Fla.1973).

For the reasons stated, and upon the authorities cited, the trial court’s order is reversed and the case remanded for further proceedings.

Reversed and remanded.

      . § 924.07(1), Fla.Stat. (1979).


author: SCHWARTZ, Judge.

text:
    AUTORICO, INC., d/b/a Miami Fiat, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 80-1015.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.

      Jerry B. Schreiber, Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The appellant, Autorico, Inc., an automobile dealer, was sued for negligence and breach of warranty in a subrogated claim for property damage caused when the engine of a car it had delivered some forty five minutes before exploded, completely destroying the vehicle. It the i brought a third-party action against Travelers Indemnity Company, seeking coverage under its comprehensive commercial policy for the defense of the main action and payment of any resulting judgment. On stipulated facts, the trial judge held that, because the explosion did not occur on Autorico’s premises, the policy did not afford coverage. Autorico appeals. We reverse.

The policy in question — with its maze of conflicting and inconsistent insuring agreements, definitions, declarations, exclusions, exemptions, and exceptions — fully justifies every canard which has been hurled by uncomprehending laypersons and lawyers against the handiwork of those faceless beings who compose contracts of insurance. Even if it were possible to do so with any degree of clarity, it would serve no useful purpose and would certainly not justify the time or ink required to detail the twists and turns involved in extracting the resolution of this particular controversy from that particular jungle. Suffice it to say that, applying the usual rules of construction in these cases, we have concluded that coverage for the incident is indeed provided under Coverage H (Property Damage) which is a part of Insuring Agreement 1(b), contained in the “Garage Liability Form (Forming part of Sections II and III),” and that there is no applicable exclusion.

Accordingly, we reverse the judgment below and remand for the entry of judgment for Autorico, the determination of the damages occasioned by Travelers’ unjustified denial of coverage, and assessment of attorney’s fees for the services of the insured’s counsel in the trial court.

Reversed and remanded.

      . The plaintiff in the primary case secured a judgment against Autorico, which conducted its own defense in such a manner that attorney’s fees were assessed against it under Section 57.105, Fla.Stat. (1979). Autorico, Inc. v. Government Employees Insurance Co., 398 So.2d 485 (Fla.3d DCA 1981).

      . The trial court, however, perhaps inconsistently, also held that Travelers was required to pay Autorico’s reasonable attorney’s fees and costs in defending the action; jurisdiction was reserved for later determination of the amount involved. Travelers did not appeal from this conclusion.

      . We have failed to resist the temptation of reproducing the following entirely apt quotation from Carroll’s “The Walrus and the Carpenter” to which the appellant has referred us:
      The Walrus and the Carpenter
      Were walking close at hand:
      They wept like anything to see
      Such quantities of sand:
      “If this were only cleared away,”
      They said, “it would be grand!”
      If seven maids with seven mops
      Swept it for half a year,
      “Do you suppose,” the Walrus said,
      “That they would get it clear?”
      “I doubt it,” said the Carpenter,
      And shed a bitter tear.

      . E. g., Stuyvesant Ins. Co. v. Butler, 314 So.2d 567 (Fla.1975).

      . Indeed, the definitions of the “Completed Operations Hazard” and the “Products Hazard” which are both insured against under Coverage H through a convoluted cross-referencing process with which we will not further bore the reader, each seem affirmatively to require that the loss occur away from the insured’s premises.
      The trial judge was apparently heavily influenced by the fact that “Coverage K-l (Fire and Explosion)” under insuring agreement 3, “Gar-agekeepers’ Legal Liability” provides insurance for “loss to an automobile [only] ... while such automobile ... is in the custody of the Insured...” The fact, however, that there is thus no coverage for the particular phase of possible liability arising obviously from a dealer’s responsibility for property as a bailee, does not affect the existence of coverage under other provisions, such as Coverage H. See, Rucks v. Old Republic Life Ins. Co., 345 So.2d 795 (Fla. 4th DCA 1977).

      .Instead, the emphasized exception to the following exclusion from coverage H is controlling:
      1. Coverages G and H do not apply:
      (a) to liability assumed by the Insured under any contract or agreement except an incidental contract, but this exclusion does not apply to a warranty of fitness or quality of the Named Insured’s products or a warranty that work performed by or on behalf of the Named Insured will be done in a workmanlike manner, [e. s.]

      . We note the existence of but express no opinion at this time upon the first impression question of whether the insurer is liable for the fees assessed under § 57.105 when the insured frivolously defended the action after Travelers wrongfully declined to do so. See notes 1 and 2, supra.

      . We have assessed a fee of $1,500 for appellate services.


text:
    PARKWAY GENERAL HOSPITAL, INC., a Florida Corporation, Appellant, v. Nicolis STERN, Appellee.
    No. 80-1521.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Atkinson, Golden, Bacen & Diner and Constance J. Kaplan, Hollywood, for appellant.
    No appearance, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Parkway General Hospital sought to recover the costs of Fred Stern’s hospitalization from, among others, his wife Nicolis. The trial judge dismissed the action with prejudice as against Mrs. Stern and assessed attorney’s fees against Parkway under Section 57.105, Florida Statutes (1979). We reverse both rulings.

On the merits, we hold, as the second district recently did in Manatee Convalescent Center, Inc. v. McDonald, 392 So.2d 1356 (Fla. 2d DCA 1980), that a wife is responsible for her husband’s necessaries, including medical bills, just as the husband is and always has been liable for hers. See, Phillips v. Sanchez, 35 Fla. 187, 17 So. 363 (1895). Since the bases of this determination have been thoroughly explicated in Judge Buck’s excellent opinion in McDonald, to which we entirely subscribe, there is no reason again to detail them at length. See also, Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980) (holding both mother and father liable for child’s medical expenses), and cases cited. It is enough to say that the result is compelled by the state of modern society and of Florida constitutional, statutory, and decisional law—all of which recognize the equality of spouses of either sex in their relationships to each other and to the law itself. Article I §§ 2, 9, 21, Article X § 5, Florida Constitution (1968); In re Estate of Reed, 354 So.2d 864 (Fla.1978); Ball v. Ball, 335 So.2d 5 (Fla.1976); Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Yordon v. Savage, 279 So.2d 844 (Fla.1973); Hallman v. Hospital and Welfare Board of Hillsborough County, 262 So.2d 669 (Fla.1972); Gates v. Foley, 247 So.2d 40 (Fla.1971); Sections 61.071, 61.08, 61.09, Florida Statutes (1979).

We differ from the McDonald court, however, in its conclusion that this holding should be applied only prospectively. The general rule is that appellate decisions, even those which overrule earlier ones or establish theretofore unrecognized claims for relief, are to be given retrospective as well as prospective effect. Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla.1967); Florida Forest and Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251 (1944); see generally, Annot., Comment Note.—Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, 1382-1384 (1966). It is true that this principle should not operate to overturn vested rights previously acquired in justified reliance upon the prior rule. See Florida Forest and Park Service v. Strickland, supra, at 18 So.2d 253; Department of Revenue v. Anderson, 389 So.2d 1034 (Fla. 1st DCA 1980); cases collected, Annot., supra, at 10 A.L.R.3d, 1386-1390. But, unlike the second district, see 392 So.2d at 1359, we do not believe that this exception applies to the present situation. Our holding is that a wife is liable for her husband’s bills simply and solely because of the marital relationship between them. Thus, the only ways in which Mrs. Stern, or any other wife, could have averted this responsibility was to have dissolved the marriage before her husband’s hospitalization or somehow prevented the illness which required it. Her failure to do either was obviously not the result of any “reliance” upon the belief that, under the present law, she would not be held responsible for his subsequently-incurred bills. Hence, we see no reason why the rule we announce today should not control both the present controversy and those which have arisen before. See cases collected, Annot., supra, at 10 A.L.R.3d 1390, notes 5-6; 20 Am.Jur.2d Courts § 233, note 18, § 235, note 3 (1965).

This decision on the merits obviously itself requires that the Section 57.105 fee award likewise be overturned. But it should be emphasized that the same result would follow even if we had ruled otherwise on the substantive issue, the retroac-tivity point, or both. Although the existing law did not support Parkway’s position, the hospital asserted what was, at least, an obviously good faith, soundly-based, and non-frivolous attempt to change it. Even had those efforts been unsuccessful—as, in the event, they were not—Section 57.105 cannot, as we have previously emphasized, properly be invoked under such circumstances. T. I. E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697, 698 (Fla. 3d DCA 1980) (“any less stringent predicate [than frivolousness] for the recovery of attorneys’ fees would have a chilling effect on parties who, for example, may unsuccessfully attempt to raise questions of first impression and may deter the future growth of the law by exacting a price for today’s unavailing efforts seeking its change.”)

Reversed.


text:
    Allen L. ATKINS, Appellant, v. Leonard KELLER, d/b/a Leonard Keller Realty, and Keller Realty Corporation, a Florida Corporation, Appellees.
    No. 80-2379.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Cohen & Manheimer and Peter Manheimer, Miami Beach, for appellant.
    Shorenstein & Lewis and Marvin W. Lewis, Miami Beach, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The defendant, Allen Atkins, appeals from a final judgment entered in favor of Leonard Keller, d/b/a Leonard Keller Realty and Keller Realty Corp.

Pursuant to a brochure sent by Atkins (Seller) to Keller, a registered broker in the State of Florida (Broker), concerning certain property owned by the Seller, the two parties entered negotiations which resulted in a written contract of February, 1980, which the Seller rejected because of dissatisfaction with certain provisions relating to partial releases of mortgages and because of the failure to provide for a personal guaranty or bank letter of credit which would provide additional security for the proposed purchase money mortgage. The Broker acknowledges that the demand of the Seller for a personal guaranty or bank letter of credit created a problem, prompting a conference telephone call among the Seller, the Broker and the attorney for the prospective purchaser. At this time, the Seller withdrew this demand and the prospective purchaser’s attorney thereupon prepared a contract including certain modifications requested by the Seller. At the Seller’s request, the contract was forwarded to a Mr. Nixon at the Pan American Bank of Orlando (Nixon was the trustee for a land trust that included the real property). Thereafter, the Seller would not sign the contract, nor would he allow Nixon to do so. The Broker, having found a purchaser willing to fulfill the Seller’s requirements for sale, demanded his $65,000.00 commission (as provided for in the contract) from the Seller, who refused to pay. A law suit by the Broker was then filed, resulting in a judgment in favor of the Broker for the principal amount of $65,000.00 plus costs ($546.41), which read in part as follows:

“THIS CAUSE came on to be heard before the Court, without a jury, and the Court having considered the matters set forth in the pleadings, the testimony elicited at the trial of this case, &■ well as the documentary evidence produced by the respective parties and having heard argument of counsel and being otherwise fully advised in the premises finds that based upon the credible evidence adduced in this cause:
(a) It is undisputed that the Plaintiffs are and at all times were licensed real estate brokers.
(b) The ‘Defendant, by means of an oral open listing submitted certain real estate owned by the Defendant, title to which was held in the name of Pan American Bank of Orlando, to the Plaintiffs, as a broker.
(c) Pursuant to the terms of said oral listing and as subsequently acquiesced and approved by the Defendant, Plaintiffs procured a Purchaser to said property, who was ready, willing and able to consummate the purchase of said property, upon the terms agreed upon by the Defendant, as Seller, and Plaintiffs’ prospective Purchaser.
(d) Said terms were embodied in a revised draft of the Contract for Sale of Real Estate prepared by the attorney for the prospective Purchaser, and said document, which contained all of the revisions requested by the Defendant, was submitted to the Defendant for execution.
(e)The failure of the transaction to be consummated was not due to the fault of the Plaintiffs, who had fully performed their obligations to the Defendant.

Following the denial of the Seller’s motion for a new trial, this appeal ensued. We affirm.

If there is substantial competent evidence in the record to support the facts as found by the trier of fact, we are required to affirm. Raulerson v. Metzger, 375 So.2d 576 (Fla. 5th DCA 1979); Palardy v. Igrec, 388 So.2d 1053 (Fla. 4th DCA 1980); Calvert Fire Insurance Company v. Tarr, 391 So.2d 244 (Fla. 3d DCA 1981). We are not at liberty to substitute our view of the facts for that as found by the trier of fact if there was any credible evidence to support his finding. Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972); Delgado v. Strong, 360 So.2d 73 (Fla.1978); Gross v. City of Riviera Beach, 367 So.2d 648 (Fla. 4th DCA 1979). In view of his finding that as a matter of fact there was a meeting of the minds between the Seller and the Purchaser, we have no alternative but to affirm the award of the commission to the Broker. Bankers Life and Casualty Company v. Pinkerton-Hays Lumber Company, 186 So.2d 551 (Fla. 3d DCA 1966); Westerman v. Shell’s City, Inc., supra; Shaw v. Shaw, 334 So.2d 13 (Fla.1976). The appellant relies principally upon McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957) in support of his appeal, contending that the trial judge committed error. We find this case not to be controlling. The instant action involved the sale of acreage with installment payments for a period of five years. The McAllister action involved the sale of a 500-room hotel, an arcade containing a number of shops, and a problem with an underlying mortgage (or mortgages). No agreement was made as to disposition of existing leases or employment contracts necessarily involved therein. The transactions are not similar.

Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


text:
    Royden SAMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1240.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Rehearing Denied July 10, 1981.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

Sampson was found guilty of first degree felony murder, arising from the robbery and death of one Norval K. Reed, and, as a separate offense, of the robbery itself. We affirm the murder and reverse the robbery conviction.

The appellant’s primary point on appeal, which is based on the admitted fact that he did not personally inflict the fatal wounds, is that the evidence is insufficient to establish his prior intent to participate in the robbery, see, J. H. v. State, 370 So.2d 1219 (Fla.3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980), and that he could thus not be deemed guilty as an aider and abettor of that crime nor, therefore, under the felony murder doctrine. We disagree. The record — which shows, among other things, that Sampson proceeded to the victim’s home with his two friends, the co-perpetrators; remained there and actually observed Reed being choked and stabbed; and then, after participating in ransacking the house, fled with some of Reed’s property in his possession — fully supports the jury finding of his guilt as a principal of robbery. See, Jefferson v. State, 298 So.2d 465 (Fla.3d DCA 1974); Mallory v. State, 211 So.2d 69 (Fla.3d DCA 1968); Perry v. State, 177 So.2d 892 (Fla.3d DCA 1965). Furthermore, since he was “personally present” when the killing took place, Sampson was properly found guilty of first rather than second degree felony murder. Adams v. State, 341 So.2d 765, 768 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977); Andrews v. State, 372 So.2d 143 (Fla.3d DCA 1979), cert. discharged, 390 So.2d 61 (Fla. 1980).

The appellant’s other contentions may be quickly disposed of. He makes several complaints concerning the jury instructions, none of which were raised below. Considering the charges as a whole, however, we find that no error — ard certainly no fundamental error — was committed in this regard. Adams v. State, supra; Castor v. State, 365 So.2d 701 (Fla. 1978); Marcum v. State, 379 So.2d 974 (Fla. 5th DCA 1979), cert. denied, 389 So.2d 1112 (Fla. 1980); Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980). The prosecutor’s final argument, which was also not objected to, similarly presents no ground for reversal. White v. State, 377 So.2d 1149 (Fla. 1979); Clark v. State, 363 So.2d 331 (Fla. 1978). The defendant’s claim that he was unjustly treated more harshly than his accomplices, who actually committed the murder, may not even be considered by this court. See Gibbs v. Wainwright, 303 So.2d 7 (Fla. 1974); Wilkinson v. State, 322 So.2d 620 (Fla.3d DCA 1975).

Since, however, it is undisputed that the murder conviction was solely based on the underlying felony of robbery, the separate robbery adjudication and sentence cannot stand. State v. Pinder, 375 So.2d 836 (Fla. 1979); Thompson v. State, 397 So.2d 354 (Fla.3d DCA 1981), and cases cited.

The judgment and sentence for first degree murder are affirmed; those for robbery are reversed.

Affirmed in part, reversed in part.

      . We also point out that this ground was not asserted in support of the motion for judgment of acquittal and thus may not be considered here. Pinder v. State, 396 So.2d 272 (Fla.3d DCA 1981); Patterson v. State, 391 So.2d 344 (Fla. 5th DCA 1980).

      . One pled and the other was found guilty only of second degree murder. Each was sentenced to life imprisonment with immediate eligibility for parole, while Sampson was given the minimum sentence for first degree murder, life with a mandatory period of 25 years in prison.


text:
    STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Division of Workers’ Compensation, Bureau of Crimes Compensation, Appellant, v. Thelma CADE, Appellee.
    No. 80-2146.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Dan F. Turnball, Jr., Tallahassee, for appellant.
    No appearance, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The Division of Workers Compensation, Bureau of Crimes Compensation appeals from an order of a deputy commissioner dated October 10, 1980 awarding crimes compensation benefits, attorneys’ fees and costs to appellee, Thelma Cade. The sole issue on appeal is whether the $450.00 cost of deposition may be awarded under Chapter 960, Florida Statutes (Supp.1980).

We find no authority in Chapter 960 for an award of costs of depositions. See, e. g., Goff v. Goff, 368 So.2d 676 (Fla.1st DCA 1979) (costs may not be awarded absent statute or agreement of parties).

Reversed as to the $450.00 award for costs.


text:
    Willie ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-1937, 80-2149.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Clinton J. Pitts, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the judgments of conviction upon a holding that (1) the prosecutor’s comment, “We have shown it beyond a reasonable doubt, since there wasn’t one statement from that witness stand that conflicted with that conclusion,” addressed the evidence as it existed before the jury, not the defendant’s failure to testify, and was therefore within permissible bounds, State v. Jones, 204 So.2d 515 (Fla.1967); White v. State, 348 So.2d 368 (Fla. 3d DCA 1977); and (2) defendant’s contention that the evidence of concealment was insufficient to support a conviction on the count charging him with carrying a concealed firearm is rejected, because (a) this contention was not preserved for review where the defendant’s motion for judgment of acquittal claimed merely that the weapon was not shown to be a firearm, V.J.T. v. State, 390 So.2d 1212 (Fla. 3d DCA 1980); Daley v. State, 374 So.2d 59 (Fla. 3d DCA 1979), and (b) the evidence of concealment was, in any event, sufficient, Oliver v. State, 393 So.2d 1191 (Fla. 3d DCA 1981).

Affirmed.


text:
    J. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1199.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Ensor v. State, 403 So.2d 349 (Fla.1981).


text:
    Donald Allan JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1105.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Jesse J. McCray, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

We affirm the conviction based on circumstantial evidence, see, e. g., Anderson v. State, 354 So.2d 395 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1210 (Fla.1978); Miller v. State, 270 So.2d 423 (Fla. 3d DCA 1972), cert. denied, 275 So.2d 16 (Fla.1973); Wright v. State, 269 So.2d 60 (Fla. 1st DCA 1972), cert. denied 274 So.2d 235 (Fla.1973), and uphold the jury finding that the evidence is inconsistent with any reasonable hypothesis of innocence. See, e. g., McArthur v. State, 351 So.2d 972 (Fla.1977); Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980).

Affirmed.


text:
    Sammie SINGLETARY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1986.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Edward McHale, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

The judgment of conviction and sentence for burglary [§ 810.02(3), Fla.Stat. (1979)], is affirmed as no attack is made on said judgment and sentence upon this appeal. The judgment ’of conviction and sentence for second degree theft [§ 812.014(2)(b), Fla. Stat. (1979)] is reversed and the cause is remanded to the trial court with directions to enter a judgment of conviction and sentence for petit theft [§ 812.014(2)(c), Fla. Stat. (1979)], as the state failed to establish at trial that the alleged stolen property [i. e., jewelry, telephone, lighters, a soda bottle] had a market value of $100 or more at the time of the theft. Negron v. State, 306 So.2d 104 (Fla.1974); Todd v. State, 187 So.2d 908 (Fla. 3d DCA 1966); § 924.34, Fla. Stat. (1979).

Affirmed in part; reversed and remanded in part.


text:
    Luther JORDAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1606.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Barbara Kelley, Sp. Asst. Public Defender, for appellant.
    ' Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Appellant’s conviction for theft is reversed on the basis of error resulting from the prosecutor’s impermissible comment on the accused’s right to remain silent, which error was adequately preserved for appeal by objection and a motion for mistrial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Clark v. State, 363 So.2d 331 (Fla.1978); Willinsky v. State, 360 So.2d 760 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979).

Reversed and remanded for new trial.


author: DAUKSCH, Chief Judge.

text:
    George A. CONDON, Appellant, v. Rita E. CONDON, Appellee.
    No. 80-1424.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Arthur Baron, Orlando, for appellant.
    No appearance for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order entitled “Clarification Order” which was entered on November 26,1980 after a January 30,1980 judgment. We find this order to be advisory only, of no binding legal effect and not appealable. Whether or not the legal conclusion the appellant has drawn from the particular wording of the order is correct is not for us to determine at this time.

APPEAL DISMISSED.

COBB and SHARP, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Betsy WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1167.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Appellant’s split sentence of eighteen months imprisonment followed by three and one-half years probation is vacated and the case is remanded to the trial court for re-sentencing in accordance with the principles set forth in Villery v. The Florida Parole and Probation Commission, 896 So.2d 1107 (Fla.1981).

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

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I dissent for the reasons expressed in the dissent to Lauxman v. State, 402 So.2d 432 (Fla. 5th DCA 1981). In addition to the problems in the application of Villery noted in that opinion, I would point out a fallacy in its application to split sentences. Villery provides that, upon correcting the sentence, the court may not “impose a sentence of imprisonment for a period of time in excess of the original total term of probation.” If this language is literally applied, in modifying Wesley’s split sentence of eighteen months imprisonment followed by three and one-half years of probation, the maximum term of imprisonment which the trial judge may impose upon resentencing is three and one-half years.


author: COWART, Judge.

text:
    Marian McCRAE, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-430, 79-431.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Joseph T. Garlovsky, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Edward M. Chew and Evelyn D. Golden, Asst. Attys. Gen., Daytona Beach, for appellee.
   COWART, Judge.

We have carefully reviewed the record on appeal and all points argued in appellant’s well-written brief and find no error except as to point 7 which challenges the condition of probation requiring two years imprisonment. Subsequent to this trial and the probation order herein, the Florida Supreme Court in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), held incarceration for more than one year as a condition of probation under section 948.03(2), Florida Statutes (1979), to be illegal. Therefore, we affirm the judgments of conviction but reverse the “sentences” and remand for correction as provided in Villery. Any resentencing should avoid the prohibition of general sentences stated in Dorfman v. State, 351 So.2d 954 (Fla.1977), and applied to probation orders in Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979). Of course, the defendant must be present at the resentencing. Fla.R. Crim.P. 3.180(a)(9).

JUDGMENT AFFIRMED; SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING.

COBB and FRANK D. UPCHURCH, JJ., concur.


author: PER CURIAM. LETTS, Chief Judge,

text:
    Stanley A. SMORAG, Appellant, v. Thelma D. SMORAG, Appellee.
    Nos. 78-2023, 78-2538.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Walter Urchisin of Urchisin & Murphy, Deerfield Beach, for appellant.
    Gary L. Self, Pompano Beach, for appel-lee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

GLICKSTEIN and HURLEY, JJ., concur.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

concurring specialty-

There can be no doubt but that we must affirm the trial court’s finding as to the permanent periodic alimony award under the circumstances of this case and the supreme court’s ruling in Canakaris. This is particularly true when, as here, the husband has not contested his ability to pay it and only questions the wife’s need.

There remains the problem, posed after the final judgment, of whether the wife committed a fraud on the court when she testified at the final hearing. During direct examination it was brought out that she had borrowed $2,000.00 from one Shirley Agnew to pay outstanding bills without revealing that she had money on hand, 'obtained by withdrawing funds from a credit union. However, the problem with this claim of fraud is that the wife nowhere testified that she was penniless at the time of borrowing and in fact admitted to having at least $800 in her bank account. Further, it* is uncontroverted that she did borrow the $2,000.00 and had made at least eleven payments on the house mortgage during the pendency of the divorce. (It is hard to pinpoint the total of these payments, but even by the husband’s reckoning it was at least $2,750.00.) I can find no suggestion in her testimony that the wife ever denied withdrawing monies from the credit union, or from any other of her assets for that matter. The question simply did not come up.

Finally, the judgment of dissolution did not order the $2,000.00 reimbursement to the wife to repay Shirley Agnew or any other particular indebtedness, it merely ordered it as “reimbursement ... for support and maintenance incurred during the pen-dency of this litigation.” Even including the $3,000.00 awarded to her as temporary relief, there can be no doubt but that the wife incurred in excess of $5,000.00 during that period.

This special concurrence contributes nothing to the body of the law and I agree our decision should be nothing more than an uninformative affirmance. That is not to say our conclusion is not of extraordinary significance to the litigants. It is simply to say that in the wake of Canakaris, protracted discussions of the trial court’s actions in this cause add nothing to the law, in the absence of a clear abuse of discretion which I cannot find in this record.

However, this consolidated appeal, was filed in the fall of 1978 and oral argument had on it in January of 1980. As a consequence I consider it appropriate to comment on our reasoning so that all may know the case was not just forgotten and then rubber stamped.


author: BERANEK, Judge.

text:
    Angela DiPROSPERO, Administratrix of the Estate of Mauro DiProspero, Deceased, Appellant, v. SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, West American Insurance Company, and Kathleen Doyle, Administratrix of the Estate of James Doyle, Deceased, Appellees. Felice DiPROSPERO and Angela DiProspero, his wife, jointly and severally, Angela DiProspero, as Administratrix of the Estate of Maria L. DiProspero, Deceased, Lisa Filomena DiProspero, individually and Linda Marie DiProspero, a minor, by Felice DiProspero, her father and next friend, Appellants, v. Kathleen DOYLE, individually, and Kathleen Doyle, Administratrix of the Estate of James Doyle, Deceased, Appellee. Robert E. FUER, personal representative ad litem of the Estate of Mauro DiProspero, Deceased, Appellant, v.. Kathleen DOYLE and Angela DiProspero, personal representatives of the Estate of Mauro DiProspero, Deceased, Appellees.
    Nos. 79-285, 80-184 and 80-232.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.

      H. Mark Purdy of Parkhurst, LaHurd & Purdy, P.A., Fort Lauderdale, for appellant.
    Jack H. Vital, III, of Simons & Schlesinger, P.A., Fort Lauderdale, for appellees, in both cases.
    Gerald M. Morris and Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, and Gary M. Fader of Pallotto, Weir & Hayson, Hollywood, foi appellants.
    Joel D. Eaton of Podhurst, Orseck & Parks, P.A., Miami, for appellee, Doyle.
   BERANEK, Judge.

This opinion disposes of three appeals designated as Case No. 79-285, Case No. 80-184, and Case No. 80-232. We affirm in part and reverse in part. The basic facts are that on December 15, 1975, Mauro DiProspero shot and killed two neighbors (James Doyle and Howard Wentworth), and his own wife, Maria DiProspero. Mauro DiProspero then shot himself but he did not die until February 9, 1976. Although Mr. DiProspero was charged with murder, he died before being brought to trial. These incidents brought about extensive legal proceedings and the complex appellate problems presented in the three aforementioned cases.

In the Circuit Court of Broward County at least two probate actions were filed along with three wrongful death actions the latter being designated as:

(1) Wentworth v. DiProspero, Case No. 76-703;
(2) Doyle v. DiProspero, Case No. 76-5343; and
(3) DiProspero v. DiProspero, Case No. 76-8290.

Unfortunately, these three cases have never been consolidated. Indeed, the probate cases and the separate wrongful death cases have each proceeded before different judges and have resulted in conflicting orders and judgments. Each of the three wrongful death cases was settled by agreement which generally provided that the plaintiff in each case would receive one-third of the net assets of Mauro DiProspe-ro’s estate. Numerous disputes arose within each wrongful death action in attempting to compute the value of the estate and these disputes are the bases for the present appeals.

We are not certain how the status and title to the real property could be determined in a wrongful death action without making all interested persons parties to that action. Clearly, from a practical point of view, the net assets of the estate of the decedent, Mauro DiProspero, should be determined in the estate proceeding in the probate division and not in three separate wrongful death actions. A determination of net assets requires consideration of the claims of creditors. These are within the exclusive jurisdiction of the probate division. Strangely, no party has raised this problem in any of the appeals.

At the time of his death, Mauro DiProspero and Maria DiProspero owned a marital home as tenants by the entireties. In addition, Mauro DiProspero and Maria DiProspero along with their daughter Angela DiProspero, and her husband, Felice DiProspero owned an interest in an apartment house. By virtue of the stipulations entered in the two wrongful death actions on the appeal here, the two judges in the different wrongful death actions were called upon to decide the ownership status and value of the real estate in which Maria and Mauro DiProspero had an interest prior to their deaths. They were also called upon to decide what property passed to Mauro as a result of Maria’s death and what property passed to Mauro and Maria’s child Angela. Since each settlement was to be based on the net value of Mauro’s estate all of the rulings and cases are interrelated.

We will discuss initially Case No. 80-184. Mrs. Doyle filed a wrongful death action against Angela DiProspero as personal representative of the estate of Mauro DiProspero for the wrongful death of Mrs. Doyle’s husband. This wrongful death case was settled by an agreement that plaintiff, Doyle, was to receive either $30,000, or one-third of the net estate of Mauro DiProspe-ro, whichever was greater. No determination was made in the settlement as to exactly what constituted the value of or the property within Mauro DiProspero’s estate. Eventually, the judge in the Doyle wrongful death action was asked by the parties to determine what real estate and personal property was to be included within Mauro DiProspero’s estate. A judgment was entered which determined the percentage interest and the value of the interest in all of the real estate and personalty which Mauro DiProspero owned prior to his death. The court then awarded one-third of the dollar value of this property to the plaintiff, Doyle, because said amount exceeded the $30,000 minimum provided in the stipulation. This judgment is attacked on appeal for various reasons, and we conclude that it must be reversed. While numerous arguments are made regarding improper procedure, it clearly appears that the stipulation for settlement was based upon the net assets of the estate and the court computed the judgment based on the gross assets of the estate. The judgment in Case No. 76-5343 is, therefore, reversed.

We next consider appeal No. 79-285. The case, originally styled DiProspero v. DiProspero, was a wrongful death action for Maria DiProspero’s death brought by Angela DiProspero, as personal representative of her mother’s estate against herself as personal representative of her father’s estate. Robert Fuer was substituted as personal representative ad litem and is the appellant. Although not initially a party to the action, Kathleen Doyle is the main party appellee in this appeal. In this wrongful death action, a final judgment was entered pursuant to a settlement stipulation which provided Maria DiProspero’s estate was to receive one-third of the net assets of her husband’s estate after a full satisfaction of the Doyle and Wentworth claims. This settlement also provided that one-half of the marital home was vested in Mauro’s estate and one-half was vested in Maria’s estate. After entry of the stipulated judgment, Kathleen Doyle, who was not a party, successfully moved to set the judgment aside. Although allowing a non party to intervene may have been improper from a procedural standpoint, we nonetheless affirm this order. An order affecting the same real estate and parties had been previously entered by the judge in the separate Doyle wrongful death action. Thus, assuming without deciding that both courts had jurisdiction over the real estate, the court acting first should be held to have exclusive jurisdiction, and it was therefore proper to vacate the judgment in the DiProspero wrongful death action. Benedict v. Foster, 300 So.2d 8 (Fla. 1974). We thus affirm the order setting aside the final judgment in Case No. 76-8290.

Case No. 80-232 is an appeal from an order on petition to intervene which also arises from the Doyle wrongful death action (Case No. 76-5343). We have here reversed the judgment in that action in Doyle’s favor because it was based upon the gross estate rather than the net estate. Appellants in Case No. 80-232 are Angela and Felice DiProspero and their two minor children. Basically, they contend the trial court erred in the determination of the ownership of the real estate and in arriving at the value of the estate. The trial court found that Mauro DiProspero’s estate consisted of a 100 percent interest in the marital home and a 50 percent interest in the apartment house property. Appellants contend that this determination was legally wrong based upon Section 732.802, Florida Statutes (1979), Ashwood v. Patterson, 49 So.2d 848 (Fla. 1951), and In Re Estate of Nunnelly, 343 So.2d 657 (Fla. 2d DCA 1977). The statute prohibits a person convicted of the murder of a decedent from inheriting from a decedent. The cases provide that while this statute does not prevent property held as tenants by the entirety from passing because it is not an asset of the estate, the notion that no one should be permitted to profit from wrong-doing will, however, cause the property to be treated as though it were held as tenants in common. Appellants contend that only a one-half interest in the marital home passed to Mauro DiProspero because he murdered his wife and that he received no interest whatsoever in the apartment. Various arguments are made on appeal as to whether the trial court properly applied the policy stated in Section 732.802, Florida Statutes (1979); whether the killing of Maria DiProspero was willful or felonious and whether a criminal or civil determination of these issues was necessary.

Our review of the record demonstrates that these issues were never established by pleadings and we are not at all certain what the trial court held in this regard. If Mauro DiProspero did kill his wife willfully and feloniously then the findings of a 100% interest in the house and a 50% interest in the apartment property appear improper under the statute and aforecited cases. We conclude the judgment which determined ownership of the real estate was incorrect and must be reversed on this ground in addition to the reversal already ordered in Case No. 80-184.

We remand these matters to the trial court with the strong suggestion that the cases should be consolidated for the purposes of determining ownership of the real estate, the net value of Mauro DiProspero’s estate and the effect of these determinations upon the settlements in the various cases. We specifically do not determine ownership of any of the real estate involved as we can not tell what issues were litigated in this regard. In reaching these conclusions we caution that we necessarily take these cases as the parties have placed them before the courts and this opinion is strictly limited to the facts and circumstances herein. In addition, although we are limited to the issues raised on appeal, we strongly suggest that only the probate division can realistically decide the net value of the estate and only one court rather than three separate courts should decide the ownership of the property comprising the estate. On remand we urge compliance with Section 733.708, Florida Statutes (1979).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

HERSEY, J„ and WARREN, LAMAR, Associate Judge, concur.

      . No appeal has been taken in Wentworth v. DiProspero, Case No. 76-7023. We do not know what orders or judgments have been entered in that case and whether said judgment may directly affect the same real estate which is the subject of these appeals.


author: PER CURIAM. HURLEY, Judge,

text:
    Mark H. FELDMAN, Appellant, v. Paul D. HOULE, et al., Appellees.
    No. 79-2167.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied July 16, 1981.
    Jay S. Spechler of J. Leonard Fleet, P.A., Hollywood, for appellant.
    Evan Langbein of Dubbin, Schiff, Berk-man & Dubbin, Miami, for appellees.
   PER CURIAM.

Plaintiffs appeals the dismissal of his second amended complaint with prejudice. We find the complaint failed to state a cause of action for conspiracy and thus affirm the dismissal. We have considered and reject the granting of leave to amend against the defendant, The Florida Podiatry Association, Inc., on the theories set out in Falcone v. Middlesex County Medical Society, 34 N.J. 582, 170 A.2d 791 (1961); Blende v. Maricopa County Medical Society, 96 Ariz. 240, 393 P.2d 926 (1964); and Pinsker v. Pacific Coast Society of Orthodontists, 1 Cal.3d 160, 81 Cal.Rptr. 623, 460 P.2d 495 (1969) and 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253 (1974). Plaintiff’s complaint demands damages for past conduct and does not seek admission to the Association.

DOWNEY and BERANEK, JJ., concur.

HURLEY, J., concurs specially.

HURLEY, Judge,

concurring specially:

I concur specially to note that plaintiff may still have recourse to the courts for relief under the cases cited above if a new application to the Association is denied in contravention of his due process rights.


author: BARKETT, ROSEMARY, Associate Judge.

text:
    Louis A. MARTA, Appellant, v. CONTINENTAL MANUFACTURING COMPANY, INC., a Florida Corporation, Reserve Insurance Company, Chester Tozzi, Bruening & Bond Insurance Agency, Inc., Appellees.
    No. 80-1447.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Frank E. Maloney, Jr., and Earle Lee Butler, Fort Lauderdale, for appellant.
    Steven W. Effman, Fort Lauderdale, for appellee Continental Mfg. Co., Inc., a dissolved Florida Corp.
   BARKETT, ROSEMARY, Associate Judge.

Louis A. Marta, plaintiff in the trial court, appeals the entry of a final order dismissing his complaint with prejudice. We reverse.

Marta was an employee of the defendant, Continental Manufacturing Company, Inc., when he was injured on the job. He filed a workmen’s compensation claim based on this injury, but Continental’s insurance carrier disputed the existence of coverage, claiming that Continental’s policy had not taken effect until several days after Marta’s accident. The matter was submitted to a Judge of Industrial Claims who, after conducting a hearing, determined both that Continental was Marta’s employer and that Continental did not have workmen’s compensation insurance coverage.

Marta then filed a suit in circuit court pursuant to Section 440.11(1), Florida Statutes (1979). Continental moved to dismiss the complaint on the ground that Marta’s original filing of a claim in the Industrial Claims Court constituted an election of remedies which precluded him from later pursuing an action in the circuit court. The trial court granted the dismissal with prejudice.

Section 440.11(1), Florida Statutes (1979), provides that an employee can sue an employer in circuit court for negligence only if the employer fails to secure insurance coverage. Thus, we agree with Marta’s contentions that his right to sue in circuit court did not accrue until it had been determined that Continental lacked insurance coverage. Since suit in circuit court was not an option available to Marta prior to tha1 determination, he could not have made an election of remedies.

For the foregoing reasons, we reverse the order dismissing the plaintiff’s complaint with prejudice, and remand to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY and MOORE, JJ., concur.


author: HURLEY, Judge.

text:
    Robette HEILIG, Appellant, v. John K. HEILIG, Jr., Appellee.
    No. 80-1520.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Paul J. McDonough, Coral Springs, for appellant.
    Theodore P. Mavrick, Fort Lauderdale, for appellee.
   HURLEY, Judge.

On this appeal appellant/wife contends that she should have been awarded permanent rather than rehabilitative alimony. Also, she claims that the trial court erred in failing to award her attorney’s fees. We find that both contentions are meritorious and thus we reverse.

The parties were married for twenty-one years and had three children. Mrs. Heilig, who has completed two years of college, was never employed outside the home during the marriage until 1976 or 1977 when she began free lance modeling. Her income from modeling did not exceed $4,000 a year. Since this action was begun she has supplemented her income by working as a salesperson in a dress shop for $3.75 per hour.

Mr. Heilig, on the other hand, is a college graduate and has steadily climbed the corporate ladder, so that his income in recent years, including bonuses, has been between $50,000 and $60,000 including benefits. His separate property includes monies in a savings account and profit sharing plan, stocks and bonds worth approximate $18,000, and life insurance policies with a cash surrender value of approximately $18,000. Jointly owned property consists of the marital home with a value between $165,000 and $175,000, a savings account with a balance of approximately $2,000 and a 1976 Cadillac.

Mrs. Heilig has no separate assets other than a checking account with a balance of approximately $1,000.

The trial court found that Mrs. Heil-ig was entitled only to rehabilitative alimony due to her “apparent talents, attractiveness and ability,” and the fact that she would receive approximately $75,000 from the sale of the marital home. Since there was a complete absence of proof that Mrs. Heilig could become self-supporting through modeling, we hold that the failure to award permanent alimony constituted an abuse of discretion. See Goss v. Goss, 400 So.2d 518 (Fla. 4th DCA 1981); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).

In light of the contemplated award of permanent alimony, we find no abuse of discretion in the court’s failure to award the home as lump sum alimony, but do find an abuse of discretion in the court’s failure to award attorney’s fees to Mrs. Heilig. Attorney’s fees are awarded in order to ensure that both parties have a similar ability to obtain competent legal counsel. Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980). The record before us reflects that Mrs. Heilig lacks funds or assets with which to pay attorney’s fees. Mr. Heilig should therefore be required to do so. Id.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Terry Lee HARVELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1177, 80-1178.
    District Court of Appeal of Florida, Second District.
    June 24, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation but strike condition (5) from the written order of revocation as the trial court did not orally find that appellant had violated this condition at the revocation hearing. Brouillett v. State, 373 So.2d 449 (Fla.2d DCA 1979).

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


author: GRIMES, Judge.

text:
    METROPOLITAN BANK & TRUST COMPANY, a Florida Banking Corporation, Appellant, v. VANGUARD INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 80-1515.
    District Court of Appeal of Florida, Second District.
    June 24, 1981.
    Scott Charlton and Tony Martino of Peavyhouse, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellant.
    Douglas P. Lawless of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellee.
   GRIMES, Judge.

This appeal involves the procedural propriety of a judgment on the pleadings.

The court dismissed plaintiff’s complaint and an amended complaint for failure to state a cause of action. When the plaintiff filed a second amended complaint, the defendant filed a motion to dismiss it and also moved to strike it as a sham pleading. However, the defendant never filed an answer to any of the complaints. At the hearing the court denied the motion to dismiss and deferred ruling on the motion to strike. Then, presumably relying upon some allegations contained in the original complaint which were not replead in the second amended compliant and also some documents filed in support of a motion to strike the first amended complaint as sham, the court granted the defendant’s oral motion for a judgment on the pleadings.

The judgment on the pleadings was procedurally improper because, contrary to Florida Rule of Civil Procedure 1.140(c), the court entered it before the pleadings were closed. This is so even though the judgment favored the defendant and the defendant needed only to file its answer in order to close the pleadings. J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So.2d 38 (Fla. 3d DCA 1978); Navarra v. Central National Insurance Co., 213 So.2d 612 (Fla. 1st DCA 1968). In any event, the documents relating to the motion to strike as sham could not provide a basis for a judgment on the pleadings. Moreover, the allegations of the initial complaint were irrelevant because they were superseded by subsequent complaints, and in denying the motion to dismiss the court concluded that the second amended complaint stated a cause of action. Babb v. Lincoln Auto Finance Co., 133 So.2d 566 (Fla. 3d DCA 1961); Shannon v. McBride, 105 So.2d 16 (Fla. 2d DCA 1958).

We reverse the judgment and remand the case for further proceedings.

SCHEB, C. J., and RYDER, J., concur.


text:
    Nancy Jean Deal NADON, Appellant, v. BUREAU OF CRIMES COMPENSATION, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 80-2042.
    District Court of Appeal of Florida, Second District.
    June 24, 1981.
    Steve A. DiDio of Reeves & Collier, Atlanta, Ga., for appellant.
    Michael J. Rudicell, Div. of Workers’ Compensation, Tallahassee, for appellee.
   PER CURIAM.

We affirm the order of the Bureau of Crimes Compensation denying appellant’s claim for compensation. However, we remand the case for consideration of appellant’s petition for attorney’s fees because the petition was filed at a time when section 960.19, Florida Statutes (1979), still contemplated the possibility of a claimant’s attorney being awarded a fee even upon the denial of a claim.

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


text:
    Larry Thomas MYERS, Appellant, v. STATE of Florida, Appellee.
    No. UU-266.
    District Court of Appeal of Florida, First District.
    June 25, 1981.
    Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See, State v. Luke, 382 So.2d 1265 (Fla. 1st DCA 1980).

McCORD, BOOTH and SHIVERS, JJ., concur.


author: RYDER, Judge.

text:
    MANATEE EDUCATION ASSOCIATION, Appellant, v. The SCHOOL BOARD OF MANATEE COUNTY, Florida, Appellee.
    No. 80-1944.
    District Court of Appeal of Florida, Second District.
    June 26, 1981.

      C. Anthony Cleveland, Tallahassee, for appellant.
    Thomas W. Stewart, Bradenton, for ap-pellee.
   RYDER, Judge.

Manatee Education Association appeals from an order staying contractual arbitration of a dispute alleging that the lower court lacked authority to stay the proceeding in its present posture. We agree and reverse.

A dispute arose between the parties regarding the meaning of a section of the collective bargaining agreement concerning priority of currently employed teachers in seeking intersystem transfer to vacancies. Appellant Association filed a grievance regarding the dispute and commenced binding arbitration under a portion of the collective bargaining agreement which provided:

In the event the grievant wishes to appeal the decision of the School Board, the grievant ... may request that the grievance be submitted to arbitration within ten (10) days of the step 3 decision. Written notice of this action shall be submitted to the superintendent.. .. Decisions by the arbitrator shall be final and binding on the parties.

Appellee School Board obtained a stay of arbitration proceedings in circuit court. The court noted that section 230.33(7)(g), Florida Statutes (1979), gave the school superintendent unfettered discretion in staffing the system. Thus, no collective bargaining provision to the contrary could prevail and the arbitration was unlawful.

Section 682.03(4), Florida Statutes (1979), provides that a court may stay an arbitration proceeding if it finds that no agreement for arbitration exists between the parties. There is no dispute below that an agreement for arbitration exists between the parties. Appellee suggests that the result of the dispute cannot be in favor of the construction advanced by appellant, since that would be contrary to the statutory authority of the superintendent. Appellee points out that some statutory duties cannot be contracted in collective bargaining, as this court found in Lake County Education Association v. School Board of Lake County, 360 So.2d 1280 (Fla. 2d DCA 1978), and suggests that the transfer of personnel was likewise not bargainable.

We hold the situation below more akin to that in Leon County Classroom Teachers Association v. School Board of Leon County, 363 So.2d 353 (Fla. 1st DCA 1978), in which the court permitted arbitration, even though a possible decision might be unlawful. Seeking to stay the proceeding below before arbitration, appellee cries “ouch” before being hurt. Appellee has the right to seek to vacate an award after the arbitrator has ruled, as was the posture of Lake County, supra. Section 682.13(l)(c), Fla.Stat. (1979). Appellee bargained for the arbitration provision and now must comply with the agreement before going to court.

The order staying arbitration is REVERSED and the case REMANDED with direction to dismiss the complaint.

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


text:
    William Randolph KLEIN, Appellant, v. David S. BAND and Rosin, Abel, Band, Brown & Russell, Chartered, formerly known as Rosin, Abel, Band & Rosin, Chartered, a Florida professional service corporation, and Doris Lancer, Appellees.
    No. 80-2269.
    District Court of Appeal of Florida, Second District.
    June 26, 1981.
    Rehearing Denied Sept. 16,1981.
    Mark R. Lewis, P.A., St. Petersburg, for appellant.
    Charles D. Bailey, Jr. of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for ap-pellees.
   PER CURIAM.

The order sought to be appealed is a nonappealable order. We hereby consider the notice of appeal as a petition for certio-rari but deny the petition because the issues raised therein were effectively rendered moot by our disposition of Klein v. Band, - So.2d -, No. 80-2270 (Fla.2d DCA June 26, 1981).

HOBSON, Acting C. J., and BOARD-MAN and GRIMES, JJ., concur.


author: JOANOS, Judge.

text:
    Diana DOUGLAS, Appellant, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, Appellee.
    No. TT-423.
    District Court of Appeal of Florida, First District.
    June 26, 1981.
    Stephen A. Smith of Smith & Smith, Lake City, for appellant.
    John I. Todd, Jr., Jacksonville, for appel-lee.
   JOANOS, Judge.

We find that the issue presented by the appellant in this case has already been decided by this Court in Carter v. Government Employees Insurance Co., 377 So.2d 242, cert. denied 389 So.2d 1108 (Fla.1980), and Finnocchio v. U.S. Fidelity & Guarantee Co., 389 So.2d 1246 (Fla. 1st DCA 1980), and must affirm the trial judge on that basis. Pursuant to Article V, § 3(b)(4), Florida Constitution (1980), however, we certify that this decision is in direct conflict with the Fifth District Court of Appeal’s decision in State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980) and the Third District Court of Appeal’s decision in American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla.3d DCA 1976). Consequently, we ask the Florida Supreme Court to consider the following question:

Whether § 627.727(1), Florida Statutes (1978) requires that an insurer’s payment of personal injury protection benefits be set-off against the insurer’s uninsured (or underinsured) motorist coverage when the insured’s uninsured motorist claim does not seek recovery of any of the type of benefits which would duplicate the benefits provided under personal injury protection.

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


author: PER CURIAM. JOANOS, Judge,

text:
    Joe BANKS, Appellant, v. STATE of Florida, Appellee.
    No. YY-335.
    District Court of Appeal of Florida, First District.
    June 26, 1981.
    Gerald A. McGill, of Wells, Brown & Brady, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Defendant appeals his convictions for burglary and grand theft arguing the State improperly introduced evidence of collateral crimes committed by a state witness. We reverse.

Early in 1980 a rash of burglaries were committed in Escambia County, where vice grips were used to gain access to dwellings. Appellant was charged with having been involved in one such burglary on January 26, 1980. Prior to trial, a motion in limine was filed requesting the State be prohibited from presenting collateral matters concerning crimes committed by a state witness other than the burglary and grand theft of January 26, 1980. The motion was denied and over defense objections James F. Marshall was permitted to testify as to involvement in approximately 100 vice grip burglaries in a three-month period. Marshall testified as to numerous other persons who were involved in various burglaries with him, what property was taken, where it was fenced, and for what the proceeds were used. Marshall testified that he and appellant were friends throughout the time these vice grip burglaries were committed, and Marshall testified that appellant was friends with each of the other named individuals who participated in these burglaries.

Marshall’s testimony did not constitute proper Williams Rule testimony as it did not involve testimony of prior criminal activity of the defendant. Hirsch v. State, 279 So.2d 866 (Fla.1973); Armstrong v. State, 377 So.2d 205 (Fla. 2d DCA 1979). Had the testimony been relevant we would still be compelled to reverse as the State made these collateral offenses a feature of the trial instead of an incident thereto. Williams v. State, 117 So.2d 473 (Fla.1960). As in Fulton v. State, 335 So.2d 280 (Fla.1976), the possible “spill-over” effect, when a jury’s perception of the defendant may have been colored by the knowledge , of a friend’s involvement in a collateral matter, requires reversal.

REVERSED AND REMANDED for proceedings consistent with this opinion.

MILLS, C.J., and SHAW, J., concur.

JOANOS, J., dissents with written opinion.

JOANOS, Judge,

dissenting:

I respectfully dissent. The testimony of the witness Marshall that was objected to was essentially that he had been involved in a large series of burglaries, had been sentenced on some of them, had agreed to cooperate with law enforcement in exchange for a representation that they would “... do some talking to the judge ... ”, and would be sentenced on some of the burglaries after his testimony in this proceeding. Marshall’s testimony could be received by the trial judge because it disclosed to the jury the possibility of bias and self-interest that he had in the situation. Marshall had struck a deal with the State. Had the State not apprised the jury of it, appellant had the right to do so. The testimony was relevant as it went to Marshall’s interest and credibility. Jacobson v. State, 375 So.2d 1133 (Fla. 3d DCA 1979), cert. denied 385 So.2d 758, Fulton v. State, 335 So.2d 280 (Fla.1976); Holt v. State 378 So.2d 106 (Fla. 5th DCA 1980). In order for the jury to evaluate the credibility of Marshall, it was proper for it to be informed of the burglaries that he had pled guilty to and the bargain that he had made with the State. Crespo v. State 344 So.2d 598 (Fla. 3d DCA 1977).

Williams v. State, 117 So.2d 473 (Fla.1960) is distinguishable. That case involved evidence regarding the defendant’s activities and not that of a witness. I have no argument with a principle that evidence of a defendant’s activities not encompassed in the charge may be unduly prejudicial. But in this case, we are dealing with the activities of a witness. Marshall’s testimony did not contain even an inference that the appellant participated in any of the criminal activities testified to for which appellant was not charged.

Appellant argues that Marshall’s testimony that he was a friend of appellant and that he was also a friend of the others that he committed burglaries with was especially prejudical. Members of juries do not leave their common sense at home and the jury in this case was specifically instructed pursuant to a standard jury instruction to use their common sense in their deliberations. I believe that they could be trusted to evaluate that testimony and not convict the appellant because of guilt by association. Even if the testimony of Marshall’s alleged friendship with appellant and the others was irrelevant, it was harmless error.

      . Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


text:
    UPPER KEY MARINE CONSTRUCTION COMPANY, Appellant, v. Robert KORN and Donald F. McLain, Appellees.
    No. 79-2027.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Jesse W. Miller and Samuel L. Thompson, Miami, for appellant.

      Alldredge & Gray and James H. Gray, Miami, for appellees.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Postal Telegraph & Cable Company v. Doyle, 123 Fla. 695, 167 So. 358 (1936); Stuyvesant Corporation v. Waterhouse, 74 So.2d 554 (Fla.1954); Maige v. Cannon, 98 So.2d 399 (Fla. 1st DCA 1957); Hattaway v. Florida Power & Light Company, 133 So.2d 101 (Fla. 2d DCA 1961); Tri-City Electric Co. v. Barrs, 201 So.2d 265 (Fla. 3rd DCA 1967).


text:
    Rudolph HUTCHINS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1242.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rudolph Hutchins, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.RApp.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, this court having required response by the State and having considered the record presented and the State’s response and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: FERGUSON, Judge.

text:
    Armando GUERRERO, Appellant, v. Margarita Raisa Rodriguez STAGLISH, Appellee.
    No. 80-1844.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Ezzo, Garel & Saylor, Miami, for appellant.
    Sugarman & Arnold, Coral Gables, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Armando Guerrero appeals from an entry of summary judgment. Guerrero claims to be the father of a child born out of wedlock. In his petition to the circuit court for visitation rights, Guerrero asserts and seeks to have the circuit court establish regular visitation rights with the minor child. The respondent/appellee, mother of the child, as an affirmative defense denies that petitioner/appellant is the father of her child and further alleges that the petitioner attempts to establish paternity without complying with Chapter 742, Florida Statutes (1979). In support of his petition, the putative father filed several affidavits and documents evidencing that both petitioner and the respondent have previously acknowledged that petitioner is the father of the child.

The trial court entered final summary judgment for respondent, on a finding that:

1. Section 742.011 Florida Statutes (1979) prohibits a putative father from bringing a paternity action against the mother of an illegitimate child.
2. If a putative father of an illegitimate child cannot establish his paternity, he is not entitled to visitation rights.
3. Section 742.011, Florida Statutes (1979) is unconstitutional in that it is in violation of equal protectior clauses of the constitution in that it gives greater rights to the mother of an illegitimate child and the statute should be stricken.
4. In the absence of Section 742.011, Florida Statutes (1979) the common law applies. That under common law, a putative father has neither rights nor obligations toward an illegitimate child.

The constitutionality of Section 742.011 as well as the other issues on appeal were considered by the court in Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), where, it was held subsequent to conclusion of proceedings below, that: (1) the paternity statute does not operate unfairly against unwed fathers in that it authorizes the court in a proper case to award child custody to the father and contemplates the imposition of child support obligations on either or both parents depending on their ability and other relevant circumstances; (2) though Chapter 742 was intended as the natural mother’s exclusive remedy in establishing paternity and enforcing support rights on behalf of the child, it does not preclude a putative father from bringing a declaratory judgment action to adjudicate paternity where such adjudication is necessary to the determination of existing rights or duties between parties to an actual controversial dispute; (3) the court will not construe Chapter 742 to provide the exclusive means by which to establish paternity where the results would be to negate the illegitimate child’s support rights against the natural father who does not voluntarily choose to contribute to the support of his child.

Nor is it absolutely necessary that a putative father seeking to establish paternity commence the action as one for a declaratory judgment to establish paternity. In Knauer v. Barnett, 360 So.2d 399 (Fla.1978), a trustee sought a declaratory judgment to determine the parties entitled to receive the corpus of a trust. In order to resolve the issues, the court necessarily had to resolve the incidental issue of paternity. In Kendrick, supra, the appellant sought an adjudication of paternity and amendment of the children’s birth certificates and the names to reflect that he was the natural father, as well as a court order of custody and child support from the natural mother. Kendrick also sought declaratory relief under Chapter 86, Florida Statutes to have Section 742.011, Florida Statutes, declared unconstitutional. In holding that an unwed father may bring a declaratory judgment for determination of paternity, the court noted with approval that “[a] paternity determination has been permitted in these other contexts where it was a necessary incident to the adjudication of the ultimate relief sought in the particular proceeding involved.” Id. at 59.

In this case the petitioner claims to be the father of the child and has in support of that claim filed with the court affidavits tending to establish paternity. The matter of paternity is placed squarely in issue by the wife’s answer and affirmative defenses. In this posture the case is one where the court is obligated to resolve the issue of paternity before there can be a consideration of the relief ultimately sought — visitation rights.

We conclude that there are no genuine issues as to the legal issue of the right to a collateral determination of paternity raised by the pleadings and argued in the briefs of the parties as those issues are settled by Kendrick and Knauer, both supra. There are, however, genuine issues of fact which preclude entry of a final judgment. Hoü v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Carl H. MARLOWE, Appellant, v. Diane E. MARLOWE, Appellee.
    Nos. 80-1498, 80-1810.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    William J. Brown and Richurd Kanner, Miami, for appellant.
    A. J. Barranco, Jr. and Steven Kellough, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

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


text:
    Carmel Nolene Flanagan GIRTEIT, Appellant, v. Andrew Arthur GIRTEIT, Appellee.
    No. 80-2310.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates and Robert P. Cates, Gainesville, for appellant.
    Highsmith & Strauss and Philip Glatzer, Miami, for appellee.
    Before HUBBERT, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

An adjudication of the court based on matter within the issues raised by the pleadings is not void where the court has jurisdiction of the subject matter and of the parties. Varnes v. Kirk, 251 So.2d 324 (Fla. 1st DCA 1971).

Affirmed.


text:
    SPERRY BUILDERS, INC., a Florida Corporation, Appellant, v. DEWBAR DEVELOPMENT CORPORATION; Dewberry Development Corporation; Gaye Brown Windisch; Davidson Lumber Company; Millwork Corporation; Higgins Plastering Company, Inc.; Maule Industries, Inc.; Miami Quality Concrete Company, Inc. and The City of Miami Springs, a Municipal Corporation, Appellees.
    No. 80-1807.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Ralph F. Miles, Hialeah, fo:- appellant.
    Lionel Barnet, Miami, for appellees.
    Before BARKDULL and FERGUSON, JJ, and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

In previous litigation, Sperry Builders, Inc., sought to foreclose a mechanic’s lien upon the subject real property in Dade County, Florida. The trial court entered a final judgment on December 3, 1979 to the effect that a first mortgage owned by a defendant-counterclaimant constituted a first lien on the property and that plaintiff’s mechanic’s lien was secondary. The mortgage lien referred to was foreclosed in its status of first lien priority over all other liens asserted against the subject property, which was ordered to be sold pursuant to applicable law. The final judgment concluded by retaining jurisdiction of the cause:

to enter further orders as are proper including, without limitation, writs of assistance and deficiency judgments and attorney’s fees. Jurisdiction of this action is retained to adjudicate the rights and responsibilities by and between the defendants herein in and to the subject note and mortgage.

Plaintiff’s appeal of said final judgment was duly filed and, while pending, plaintiff filed in the trial court a “First Amended Complaint to Secure Judgments at Law for Conspiracy and Defraud.” Thereafter, upon motion by appellee the referred to appeal was dismissed by order of this court entered July 14, 1980, 386 So.2d 1327 (Fla. App.). Thereafter, the cause came on to be heard by the trial court upon plaintiff’s motion to amend its complaint and motions to dismiss. The trial court entered its order that by virtue of the appeal referred to, it “has lost jurisdiction of the cause and for that reason refuses to rule on any and all motions heard and pending at this time.” It is from that order of August 27, 1980, this appeal is perfected.

It is basic that upon the dismissal of the appeal, jurisdiction of the trial court was reactivated to consider and rule upon any and all motions and pleadings pending in the cause. We express no opinion as to the legal sufficiency of any pending motion or pleading.

Reversed with directions to proceed further with the cause in harmony with the views herein expressed.


text:
    Donald J. DOWD, Appellant, v. Robert F. SAUER, John N. Moore, III and C. Kent Miller, d/b/a Neblett and Sauer, Appellees.
    No. 80-2330.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Joseph S. Paglino, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Appellees are attorneys who brought suit against appellant Dowd to recover legal fees. Appellant counter-claimed alleging malpractice on the grounds that appellees failed to take timely action to set aside an order of contempt which resulted in his arrest. The order of contempt was issued for failure to appear for deposition in aid of execution on a judgment. Appellant had satisfied the judgment shortly after the order was entered.

It is undisputed that present counsel for appellant was also his attorney when the order of contempt issued on October 11, 1977 and that appellees became counsel for Dr. Dowd on March 20, 1978. On April 10, 1978, some three (3) weeks prior to Dr. Dowd being arrested and confined, appel-lees learned of the contempt order.

We find that the depositions of another attorney and the judge who entered the contempt order — and who was no longer a judge at the time of deposition — raise material issues of fact as to whether any actions of appellees caused damage to appellant so as to preclude entry of final summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Fla.R.Civ.P. 1.510.

Reversed and remanded.