text:
    Kathryn MALPASS et al., Appellants, v. HIGHLANDS INSURANCE COMPANY, etc., et al., Appellees.
    No. 79-2185.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appellants.
    Leland E. Stansell, Jr. and Robert A. Glassman and Douglas L. Oppenheimer, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Kathryn Malpass, a fifty-five-year-old woman, slipped and fell on the premises of the Park Shores Apartments sustaining a fracture of all three ankle bones. The immediate effects of her injury were that she was hospitalized for ten days, immobilized in a full leg cast for six weeks, and rendered unable to care for her totally disabled husband, Alvin. The long range and permanent effects were a ten per cent disability of the ankle, continued pain, muscle atrophy, swelling, and a limp. Kathryn’s life expectancy at the time of trial was 24.3 years.

The jury awarded Kathryn $75,000 and Alvin $10,000 on his derivative claim. It found the defendant Lincoln Day Holding Company, the owner of the apartment house premises, to be ninety per cent at fault, thus making the net amount to be recovered by the Malpasses $76,500.

The trial court, finding the $75,000 verdict rendered in favor of Kathryn excessive “to that degree that it shocks the judicial conscience of this court,” ordered Kathryn to remit from the verdict the amount of $35,000. Kathryn refused, and a new trial was ordered. It is from that order that the Malpasses appeal.

In compliance with the dictates of Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978), the trial court articulated the reasons purporting to support its order of remittitur. The problem, as we see it, is that the reasons stated by the trial court support instead the jury’s verdict.

The order of the trial court concedes, inter alia, that the evidence “clearly established” that Kathryn Malpass suffered a ten per cent permanent disability of the ankle, that the plaintiff’s normal activities were permanently impaired at least to the extent that she could no longer walk long distances, and that the plaintiff was left with a limp. In effect, then, the trial court found preponderant evidence from which a reasonable jury could conclude that Kathryn Malpass suffered a bodily injury which did in the past and would in the future (for a projected 24.3 more years) cause pain and a diminution in the full capacity to enjoy life, and which would leave Kathryn Malpass with a limp.

Thus, neither the trial court’s order, nor the record, affirmatively demonstrates that the verdict was against the manifest weight of the evidence. We must conclude, therefore, that the trial court improperly sat as a seventh juror and, simply disagreeing with the size of the verdict, exercised a veto power over it. This a court cannot do. Wackenhut Corporation v. Canty, supra; Laskey v. Smith, 239 So.2d 13 (Fla.1970); Corbett v. Seaboard Coastline Railroad Company, 375 So.2d 34 (Fla.3d DCA 1979). While the size of the verdict may have raised the trial court’s judicial eyebrow, Wackenhut Corporation v. Canty, supra, or may even raise ours, we cannot say with any assuredness that the verdict exceeded the limits of the reasonable range so as to shock the judicial conscience. See Wackenhut Corporation v. Canty, supra; Corbett v. Seaboard Coastline Railroad Company, supra. Perhaps another jury would have been less or more generous. The law, however, recognizes a reasonable latitude for inconstancy of result in the performance of juries. Laskey v. Smith, supra. Since our system permits, indeed requires, the jury to place a value on intangibles such as pain and suffering or disfigurement, Corbett v. Seaboard Coastline Railroad Company, supra, we must expect that similar cases will result in dissimilar verdicts. Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361 (Fla. 1974).

The verdict in the present case bears a reasonable relationship to the damages proved and the injury sustained, and the trial court abused its discretion in disturbing it. Accordingly, we reverse the trial court’s order granting a new trial. We remand the case to the trial court with directions that it reinstate its final judgment of September 11, 1979, entered on the jury verdict.

Reversed.

      . In medical terminology, a trimalleolar fracture.

      . No remittitur was ordered in respect to the verdict in favor of Alvin Malpass.

      . This is not merely a finding of “competent and substantial” evidence to support the verdict. Instead, it is in effect a finding that the manifest weight of the evidence showed the existence of these facts. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959). Indeed, the trial court’s remittitur order fixes the appropriate recovery for Mrs. Malpass at $40,000. Since the recoverable out-of-pocket expenses were approximately $5,200, it is apparent that the trial judge would himself have awarded a substantial recovery for pain, suffering, and permanent impairment.

      . The order does not make mention of continued pain, but the record supports this.

      . The trial court did not find that the jury was influenced by considerations outside the record. In such a case, the trial court’s findings to that effect would be entitled to greater credit “because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based.” See Cloud v. Fallis, supra. But where the reason advanced for setting aside a jury’s verdict is that it is against the manifest weight of the evidence, the trial judge’s position is much like ours. In either case, to set aside the trial court’s order we must find a gross abuse of discretion, but in the latter case, we may more readily rely upon the cold record.

      . Based solely upon Mrs. Malpass’s life expectancy and the conceded fact of a permanent limp and pain, Mrs. Malpass would receive less than $3,000 a year during her projected remaining years or $7.00 to $8.00 a day.

      . The trial court instructed the jury that it could award damages based, inter alia, upon:
      “. . the total amount of loss, injury, or damage . . . sustained as a result of the incident complained of, including any such damage as Mrs. Malpass is reasonably certain to incur or experience in the future. You shall consider the following elements: Any bodily injury sustained by Kathryn Mal-pass and any resulting pain and suffering, disability, disfigurement, mental anguish and loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. . . There is no standard for fixing the compensation to be awarded for this type of injury.

      “If the greater weight of the evidence shows that Mrs. Malpass has been permanently injured, you may consider her life expectancy.

        See Fla. Std. Jury Instr. (Civ.) 6.2(a), 6.9(a).


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Allen PARSONS, Appellant, v. WEINSTEIN ENTERPRISES, INC., a Florida Corporation, d/b/a The Toast, Appellee.
    No. 80-91.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    William J. Williams, Miami, for appellant.
    Pyszka, Kessler & Adams and William M. Douberley, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Parsons accompanied his friend and half-brother, John Kennedy, to The Toast, a restaurant-lounge owned and operated by Weinstein Enterprises, Inc. Kennedy’s mission was to resolve a personal matter with an ex-girlfriend, Debbie Jackson, a barmaid at The Toast. Parsons and Kennedy had some beers; Kennedy and his girlfriend had some words. Kennedy, with Parsons following, left the establishment and, with classic misdirected anger, threw a beer bottle at the outside of The Toast, breaking a lamp affixed to the exterior of the building. Irving Weinstein, president of Weinstein Enterprises, Inc. and manager of The Toast; his son, Mitchell; and four other men emerged from The Toast and gave chase. Four men cornered Parsons, and, responding in kind, two of their number beat him with their fists, feet and clubs.

Parsons sued Weinstein Enterprises, Inc. for compensatory and punitive damages arising from this assault and battery, which he contended was committed by agents, servants and employees of the corporation acting within the course and scope of their employment. At the conclusion of Parsons’ case in chief, the trial court granted the defendant’s motion for a directed verdict and entered final judgment in its favor.

In defense of the trial court’s ruling, the corporation points to evidence that (1) while inside the bar Kennedy told Ron Det-telo, the apparently chivalrous bartender, “I would like to take you outside and beat your ass,” and that this challenge may have been the cause of what later ensued; (2) Parsons was not assaulted inside the premises; (3) the precipitating cause of the assault could have been that Parsons banged on and damaged cars owned by Debbie Jackson and Frank Striffler, the assistant manager of the corporation; and (4) Parsons only identified Mitchell Weinstein and “a bouncer” as striking him; Kennedy identified “the bouncer,” a kitchen employee, Mitchell Weinstein and another as surrounding Parsons; but according to Irving Weinstein, his only employees that day were Striffler, Ron Dettelo and .Debbie Jackson. Finally, the appellee accurately notes that there was no direct testimony that the interests of the corporation were being served by the assault upon Parsons.

While the record supports appellee’s statements, its argument is more properly directed to a jury than to a court. The appellee’s analysis overlooks that in respect to a motion for directed verdict, the evidence and all reasonable inferences to be drawn therefrom must be viewed most favorably to Parsons. Rodi v. Florida Greyhound Lines, 62 So.2d 355 (Fla.1953); Wheaton v. Bohnert Roofing & Supply Co., Inc., 369 So.2d 1016 (Fla.3d DCA 1979). So viewing the evidence, we conclude that a reasonable-minded jury could have found from other evidence in the case that (1) Mitchell Weinstein was a de facto agent or employee of the corporation, Parsons having testified that he saw Mitchell inside The Toast seating people at tables and appearing to be working; (2) “the bouncer” was an employee of The Toast, Kennedy having testified that he had met him inside the premises, and he was introduced as “the bouncer”; (3) the motive for the assault was the breaking of the lamp on the outside of The Toast, and the assaultive acts were activated by a purpose to serve the defendant corporation; (4) even if some of the participants in the assault were non-employees, the assault on Parsons, which occurred in full view of Irving Weinstein, was condoned by him on behalf of the corporation; and (5) Irving Weinstein, by standing over Kennedy with a billy stick while Parsons was being assaulted, aided and abetted the assault on Parsons by preventing Kennedy from coming to Parsons’ aid.

It is simply not the province of the trial court in a jury trial to resolve conflicts in the evidence or to judge the credibility of the witnesses. Rodi v. Florida Greyhound Lines, supra; Wheaton v. Bohnert Roofing & Supply Co., Inc., supra. Where there exists any evidence from which a jury could conclude that the acts in question were committed by an agent of the corporation within the scope of his employment, the questions of agency and scope of employment are to be resolved by a jury. Weiss v. Jacobson, 62 So.2d 904 (Fla.1953); Tuberville v. Concrete Construction Company, 270 So.2d 431 (Fla. 1st DCA 1972); Forster v. Red Top Sedan Service, Inc., 257 So.2d 95 (Fla. 3d DCA 1972); Soden v. Starkman, 218 So.2d 763 (Fla. 3d DCA 1969); Dye v. Reichard, 183 So.2d 863 (Fla. 4th DCA 1966); Columbia By The Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963). Compare DeJesus v. Jefferson Stores, 383 So.2d 274 (Fla. 3d DCA 1980). Similarly, since an intentional assault and battery without legal justification supplies proof of malice upon which a punitive damage award may rest, the issue of punitive damages must be left for the jury to resolve. Ford Motor Credit Company v. Johns, 269 So.2d 54 (Fla. 1st DCA 1972); Joab, Inc. v. Thrall, 245 So.2d 291 (Fla. 3d DCA 1971).

Accordingly, since there was evidence adduced that could in law support a verdict for Parsons, see Mullis v. City of Miami, 60 So.2d 174 (Fla.1952), we reverse the trial court’s judgment entered against Parsons and in favor of Weinstein Enterprises, Inc. and remand the cause for a new trial on count one of the complaint.

Reversed.

      . One light out deserves another.

      . A second count, struck by the trial court at the conclusion of the plaintiff’s case, alleged negligent hiring. Parsons does not appeal from this ruling.


text:
    Donald GROSS, Appellant, v. Leo FRANKLIN, Appellee.
    No. 80-1142.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.

      Haber, Kaplan & Rapoport, Miami, for appellant.
    O’Connell, Cooper, Parrish & McBane and William G. Shofstall, Jr., West Palm Beach, for appellee.
    Before NESBITT, BASKIN, and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Gross sued Franklin in Dade County for damages arising out of a breach of their partnership agreement. Franklin moved to dismiss the complaint upon the limited grounds that it failed to state a cause of action or a claim upon which relief could be granted, and that Gross’ exclusive remedy under the contract was arbitration. Gross then, without leave of court, filed an amended complaint which Franklin moved to dismiss on essentially the same grounds. Before any hearing was held on his motion to dismiss, Franklin, a resident of Palm Beach County, moved to transfer the cause there. The trial court granted Franklin’s motion to transfer, and Gross took this interlocutory appeal. Gross here contends that Franklin’s failure to assert improper venue as a defense in his motion to dismiss the amended complaint waived his right to thereafter move to transfer on venue grounds.

Under Florida Rule of Civil Procedure 1.140 the failure to raise improper venue in a motion to dismiss filed under the rule waives any right to have the cause dismissed on venue grounds. Inverness Coca-Cola Bottling Company v. McDaniel, 78 So.2d 100 (Fla. 1955); Brennan v. Brennan, 192 So.2d 782 (Fla.3d DCA 1966). But Franklin contends (1) even if his right to a dismissal under Rule 1.140 was waived, his right to have the cause transferred under Florida Rule of Civil Procedure 1.060(b) was not; and (2) his failure to include venue grounds in his motion to dismiss was not a waiver, since his motion to transfer was filed prior to any hearing on his motion to dismiss.

In our view, Brennan v. Brennan, supra, requires that Franklin’s first contention be rejected. In Brennan, the defendant moved to dismiss the complaint for failure to state a cause of action. Sometime later (after his motion to dismiss was denied, after numerous other motions were heard, and after an answer and counterclaim were filed), the defendant moved for a change of venue. The trial court, finding that the proper venue was Broward, not Dade County, transferred the cause. This court reversed, holding:

“The defendant failed to include the defense of privilege of venue in his motion to dismiss for failure to state a cause of action. Therefore, the privilege must be deemed to have been waived. While the court may transfer cases laid in a wrong venue under the provisions of Rule 1.39(c), Florida Rules of Civil Procedure, 30 F.S.A. and § 53.17(1) Fla.Stat., F.S.A., it was erroneous to consider defendant’s untimely motion.” 192 So.2d at 783. ,

Franklin misapprehends the interrelationship of' the rules touching upon venue. Rule 1.140 requires a defendant to timely challenge improper venue. At his option, the challenge may be made either by motion or, if no motion is filed, by a defense raised in the responsive pleading. Where the challenge is by a motion to dismiss, transfer is the more appropriate remedy.

“Appellant’s second point urges that if proper venue was in Leon County, the court should have transferred the cause to that court rather than granting the motion to dismiss. It will be recognized that this is the result reached in Reed Construction Corporation v. State Road Department, [165 So.2d 816 (Fla.3d DCA 1964)]. In the instant case the court did not consider the question of transfer, and there is nothing in the record to show that it was requested to do so. Nevertheless, we feel that in construing the rule to produce a just result (as we conceive it our duty to do) it is necessary for us to hold that the court should transfer rather than dismiss the cause, [citations omitted]. We are aware that it has been held that the question of improper venue is correctly raised by a motion to dismiss, [citations omitted]. But we cannot escape the conclusion that a transfer is the most expeditious and just way to handle the matter . . . ” Foy v. State Road Department, 166 So.2d 688, 689-90 (Fla,3d DCA 1964).

Thus, Rule 1.060(b) merely vests authority in the court to transfer when a timely Rule 1.140 motion challenging improper venue is made. Since transfer, not dismissal, is the favored remedy for improper venue, James A. Knowles, Inc. v. Imperial Lumber Company, 238 So.2d 487 (Fla.2d DCA 1970); Foy v. State Road Department, supra; Reed Construction Corporation v. State Road Department, 165 So.2d 816 (Fla.3d DCA 1964), a Rule 1.140 motion to dismiss is, in effect, a motion to transfer. If, as Franklin argues, Rule 1.060(b) provides a separate vehicle for transfer by a motion made at any time, then Rule 1.140’s clear statement that challenges for improper venue not timely made are waived would have no meaning.

However, Franklin’s second contention that his motion to transfer on improper venue grounds was timely in that it was filed before any argument on his motion to dismiss was held has merit. The philosophy underlying the consolidation of defenses is that to permit a series of motions is to encourage dilatory tactics. But dilatoriness does not exist where separate motions raising Rule 1.140(b) defenses are filed before hearing is held on any such motion. While no Florida case has addressed this precise issue, the Federal courts which have been called upon to construe the comparable Federal Rule have uniformly decided that additional grounds such as improper venue may be added to the motion before it is argued, and no waiver occurs. See Bechtel v. Liberty National Bank, 534 F.2d 1335 (9th Cir. 1976); MacNeil v. Whittmore, 254 F.2d 820 (2d Cir. 1958); Martin v. Lain Oil & Gas Co., 36 F.Supp. 252 (E.D. Ill. 1941). See also Roller Derby Associates v. Seltzer, 54 F.R.D. 556 (N.D. Ill. 1972). These decisions are persuasive authority for our similar construction of Rule 1.140(b). See Zuberbuhler v. Division of Administration, supra, at fn. 6.

Accordingly, the order of the trial court is affirmed.

Affirmed. •

      . At the time this motion was filed on April 18, 1980, a hearing on the motions to dismiss was scheduled for June 16, 1980.

      . Authorized by Fla.R.App.P. 9.130(a)(3)(A).

      . Gross’ amended complaint alleges that both the plaintiff and defendant are residents of Palm Beach County. He makes no claim that venue was properly laid in Dade County.

      .Subsection (b) of Florida Rule of Civil Procedure 1.140 provides that the defense of improper venue may be made by motion at the option of the pleader. It goes on to say that any ground not stated shall be deemed to be waived except that one showing that the court lacks jurisdiction of the subject matter may be made at any time. Subsection (g) of the same rule says that if a party does choose to raise the enumerated defenses by motion, he is precluded from later raising any he omits except for lack of jurisdiction over the subject matter. Finally, subsection (h) provides that a party waives the Rule 1.140(b) defenses which he has not raised by motion or, in the absence of a motion, in a responsive pleading, except, again, for the defense of lack of jurisdiction over the subject matter.

      . Rule 1.060(b) provides:
      “(b) Wrong Venue. When any action is filed laying venue in the wrong county or district, the court may transfer the action . to the proper court in any county or district where it might have been brought in accordance with the venue statutes. . . . ”

      . The committee note to the counterpart Federal Rule of Civil Procedure 12 makes clear that if a party avails himself of a preanswer motion and fails to raise a venue challenge therein, he may not thereafter raise improper venue in his answer. See 2A Moore’s Federal Practice (2d ed. 1979) ' 12.02 at 2224, ' 12.22 at 2440-41, and ' 12.23 at 2440-47. Decisions and commentaries under the Federal Rules of Civil Procedure are persuasive guidelines to the interpretation of our state rules, which are closely patterned after the Federal Rules. See, e. g., Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla.2d DCA 1977).

      . We make clear that our discussion is confined to a challenge for improper venue, not a motion to transfer on grounds of forum non conveniens. The latter motion need not be made within Rule 1.140 time limits. Such time limits, although adequate to determine if venue statutes have been met, are not necessarily adequate for determining forum non conven-iens grounds. See James v. Norfolk and Western Railway Co., 430 F.Supp. 1317 (S.D. Ohio 1976); Snam Progetti S.P.A. v. Lauro Lines, 387 F.Supp. 322 (S.D. N.Y. 1974).


author: LETTS, Chief Judge. DOWNEY, Judge, HURLEY, Judge,

text:
    Samuel J. LEVY, Milton M. Farber and M. Mac Schwebel, Appellants, v. Michel A. PICARD, Appellee.
    No. 78-2223.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.

      Richard W. Groner of Moyle, Gentry, Jones, Flanigan & Groner, P.A., West Palm Beach, for appellants.
    John L. Bryan, Jr. of Scott, Burke, Royce & Harris, P.A., Palm Beach, for appellee.
   LETTS, Chief Judge.

We are of the opinion that the judgment granted by the trial court should be reversed because factual issues exist which cannot be resolved by summary judgment.

We see no need for protracted recitation of all the facts. Suffice it to say that the dispute concerns whether an investor, withdrawing from a small corporation, was entitled to a return of his investment from the remaining stockholders as individuals, from the corporate entity or a combination of both.

A letter written by the corporate attorney to the remaining investors asked for written approval of the plan outlined to him by the withdrawing investor, so that the latter could have his $73,333.33 investment returned to him. The full text of the letter is as follows:

Mr. Samuel J. Levy
359 Martling Avenue
Tarrytown, New York 10591
Mr. Michel A. Picard
Sherbrooke Golf & Country Club, Inc.
6151 Lyons Road
Lake Worth, Florida 33463
Mr. M. Mac Schwebel
2 Leith Place
White Plains, New York 10605
Mr. Milton M. Farber
6 Corwood Road
Bronxville, New York 10708
Gentlemen:
Mr. Picard visited our offices on November 1, 1977 and informed me that you have each mutually agreed to terminate [the] Agreement of August 3, 1977. Specifically:
1. The $73,333.33 previously contributed by Mr. Picard will be returned to him forthwith,
2. He will have no further obligation to contribute funds to Sherbrooke Golf & Country Club, Inc., and,
3. He will receive no shares of stock in Sherbrooke Golf & Country Club, Inc.
If this letter correctly reflects the understanding and agreement of all four parties, please execute a copy of this letter and return it to my office.
With kindest regards, I remain
Yours truly,
/s/ RICHARD W. GRONER
RWG/sz
tai SAMUEL J. LEVY
/s/ MICHEL A. PICARD
/s/ M. MAC SCHWEBEL
/a/ MILTON M. FARBER

Pursuant to the last paragraph of the letter, it was forwarded to all the remaining four investors who duly signed in the spaces provided and returned it, thereby indicating approval of its terms.

From this set of circumstances the trial judge deduced as a matter of law that the refund was to be made exclusively by the remaining stockholders as individuals, despite the fact that $44,000 of the $73,333.33 has in truth been returned by the corporation, not by any individual.

We see nothing in the letter or its approval which established that the remaining investors would individually return the money. They did not write this letter, it was written to them and it merely asked the remaining investors if it was correct that the withdrawing investor was to get his money back and if so to confirm it. It is true that the withdrawing investor filed an affidavit in support of his motion for summary judgment, however although a reasonable interpretation of that affidavit would be that it was remaining investors individually who were responsible, both pertinent paragraphs in the affidavit quote, as authority for the individual liability, the above reproduced letter, which simply does not support any such conclusion.

We therefore hold that it cannot be said as a matter of law that the balance owed is the individual responsibility of the remaining investors and we believe there are genuine issues of material facts as to how and by whom the refund is to made.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

DOWNEY, J., concurs with LETTS, C. J., and concurs specially.

HURLEY, J., dissents with opinion.

DOWNEY, Judge,

concurring specially.

I agree entirely with the opinion authored Chief Judge Letts. However, I believe the case for reversal is even stronger when one considers the deposition of M. Mac Schwebel. The record shows the original of that deposition was not on file at the time of the summary judgment hearing, but, using their copies of the deposition, the parties argued the evidence contained therein as though it were on file. The evidence in the deposition raises genuine issues of material fact, and thus the record here and that argued before the trial judge demonstrates that there are genuine issues to be tried.

HURLEY, Judge,

dissenting.

I respectfully dissent. In my opinion the majority fails to consider plaintiff’s uncon-tradicted affidavit which resolves any ambiguity as to who owes the money, and conclusively entitles the plaintiff to summary judgment.

Michel Picard intended to buy into Sher-brooke Golf & Country Club, Inc. and to this end he contributed $73,333.33 in cash and signed a note for $60,000.00. Sometime later he changed his mind and requested his money back. At this point, Picard, Levy, Schwebel and Farber executed the letter-document referred to in the court’s opinion. As a result of this agreement, Picard received approximately $44,000.00, which left a balance due of $29,000.00. When this was not paid, Picard instituted suit against the corporation and its three individual stockholders (Levy, Schwebel and Farber).

On August 15, 1978, pursuant to applicable rules of civil procedure, Picard filed a motion for partial summary judgment as to that count in his complaint which concerned only the three individual defendants. He attached an affidavit to his motion wherein he stated, “On November 1, 1977 SAMUEL J. LEVY, M. MAC SCHWEBEL, and MILTON M. FARBER agreed to return to me ‘forthwith’ the sum of $73,333.33. . .” . . [TJhere is still due and owning from the Defendants to me the sum of $29,000.00. ...”

Apparently operating under the assumption that their depositions, which had been taken earlier, were on file, defendants did not respond to Picard’s affidavit. No counter-affidavits or other sworn denials were filed. To further complicate matters, when the court heard the motion on September 15,1978, both sides labored under the belief that Schwebel’s and Levy’s depositions were on file and would be considered by the court. On September 19, 1978, however, when the court entered its order granting summary judgment, neither deposition had been filed.

Court records reflect that Schwebel’s deposition was filed on January 18, 1979, four months after the summary judgment hearing. Levy’s deposition was filed on March 19,1980, a year and a half after the summary judgment hearing and fourteen days after appellate oral argument. As mentioned before, both depositions had been taken pri- or to the summary judgment hearing: Schwebel’s on April 26, 1978; Levy’s on May 8, 1978.

The following chronology recapitulates and hopefully clarifies the sequence of events:

April 26,1978 — Schwebel’s deposition.
May 8, 1978 — Levy’s deposition.
August 15,1978 — Picard’s motion for partial summary judgment accompanied by affidavit and notice of hearing.
September 15,1978 — Hearing on summary judgment.
September 19,1978 — Order on partial summary judgment.
January 18,1979 — Schwebel’s deposition filed.
March 5,1980 — Appellate oral argument.
March 19,1980 — Levy’s deposition filed.

First, and with due respect to the court, I suggest that the ambiguity perceived and relied upon by the majority is illusory. It exists only because the court turns a blind eye to Picard’s definitive and verified statement that “the Defendants [owe me] the sum of $29,000.00. . . Nothing in the record contradicts this sworn statement. Thus, I submit, the trial court was eminently correct in granting partial summary judgment.

Whether the depositions which have now been filed reveal the existence of a genuine issue of material fact is a question which should not be treated for the first time on appeal. It is axiomatic that “this is not a trial court, but a court of review. Our review is limited to a determination of whether errors were committed by the trial judge.” Fauls v. Sheriff of Leon County, 384 So.2d 238, 239 (Fla. 1st DCA 1980). Thus, I would affirm the decision of the trial court but without prejudice to appellants/defendants’ right to file a motion with the trial court pursuant to Rule 1.540(b), Fla.R.Civ.P., to open the judgment and permit the court to include and consider the Schwebel and Levy depositions. This course would require the defendants to establish mistake, inadvertence, surprise or excusable neglect for failing to file the depositions. If it were determined that the duty to file belonged to another, it would be incumbent upon defendants to explain their failure to discover the void in the record and to take timely action to correct it. In any event, these are matters which should be left for the trier of fact in a subsequent proceeding.


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

text:
    PAN AMERICAN ENGINEERING CO., INC., a Florida Corporation, Appellant, v. PONCHO’S CONSTRUCTION CO., Appellee.
    No. 00-197/T1-111.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Burton L. Bruggeman, Orlando, for appellant.

      Linton S. Waterhouse, Orlando, for appel-lee. u

   FRANK D. UPCHURCH, Jr., Judge.

Appellee Poncho’s Construction Company obtained a judgment enforcing a mechanic’s lien for work performed on a sewage collection and storm drainage system. Appellee was a sub-contractor retained by appellant Pan American Engineering Company, Inc., which was the prime contractor, and was to complete all phases of a sub-contract on which a prior sub-contractor had defaulted. The contract between appellant and appel-lee required all change orders to be in writing and signed by appellant.

The first question raised by this appeal is whether the trial court erred by allowing into evidence both the requests for written change orders and oral testimony in support thereof, when the contract language stated that only written change orders, signed by the contractor, would be honored.

The contract specifically provided:

No changes are to be made, however, except upon written order from the Contractor, and the Contractor shall not be held liable to subcontractor for any extra labor or materials furnished without such written order.

There is solid support for the principle that written contracts can be modified by subsequent oral agreement of the parties, even though the written contract purports to prohibit such modification. Barile Excavating v. Vacuum Under-Drain, 362 So.2d 117 (Fla. 1st DCA 1978); Vitra-Spray of Florida, Inc. v. Gumenick, 144 So.2d 533 (Fla. 3d DCA 1962). In Vitra-Spray, the court held that the possibility of waiver of the contract provision by subsequent dealings of the parties existed which would render it a fraud upon one party for the other to refuse to perform the alleged oral modification.

It is also possible for a subsequent modification to result from the conduct of the parties. Barile Excavating at 119; Fletcher v. Laguna Vista Corp., 275 So.2d 579 (Fla. 1st DCA 1973). In Fletcher, the contractor was awarded $68,000.00 in increased costs following completion of apartments constructed for owner. The owner contended that the total sum payable to the contractor was pursuant to a valid written contract and could not be increased without the owner’s written consent. The contractor had presented the owner with two change orders based on increased overhead costs incurred by the contractor in construction of the apartments but owner refused to sign the orders. The First District Court of Appeal affirmed an award to contractor, declaring that the manner in which the parties interpreted the contract through their course of dealings is of great significance. The court found that the owner was aware of some increase in the cost of overhead and never objected and had previously accepted one change order not signed in accordance with the contract. Hence, the parties modified the contract by their course of dealings.

Therefore, the trial court here was not in error in permitting the introduction of the requests for change orders since the written contract could have been modifiéd by them. The essential question is whether there is substantial, competent evidence in the record to support the trial court’s determination that a modification or waiver of rights under the contract occurred. See Wiener v. Wiener, 343 So.2d 1319 (Fla. 3d DCA 1977). Because this matter will be remanded for new trial, we need not reach this question.

The second question is whether the trial court abused its discretion by not allowing appellant’s counsel to make final oral argument.

At the close of defendant’s case, the court gave plaintiff fifteen days to file a memorandum of law and summary of the evidence, and defendant fifteen days to reply. In addition, it was provided that:

Either attorney may, in writing, submit a request for oral argument which the court will set .

Plaintiff (appellee) never filed the memorandum or furnished defendant with a copy and therefore, defendant (appellant) never filed or served a reply and oral argument never occurred.

In civil cases, federal courts have recognized that in non-jury cases, if argument is granted, it is a privilege and not as of right. Yep v. Immigration and Naturalization Service, 318 F.2d 841 (7th Cir. 1963); Peckham v. Family Loan Co., 262 F.2d 422 (5th Cir. 1959), cert. denied 361 U.S. 824, 80 S.Ct. 70, 4 L.Ed.2d 68 (1959). In Peckham, it was stated that the , matter of permitting oral argument at the close of trial is within the court’s discretion. Id. at 425.

In Florida, there is no constitutional or statutory provision deeming the right to be heard at the close of a non-jury civil trial an absolute right. In Collins Fruit Co. v. Giglio, 184 So.2d 447 (Fla. 2d DCA 1966), the court did state, however, that counsel’s summarizing remarks frequently tie together previously unconnected or seemingly irrelevant testimony and highlight those phases of the evidence considered most favorable by the parties, thus making it a crucial phase of a lawsuit. However, Collins differs from the instant case in that it involved a jury trial and did not deal with a right to final argument but rather with improprieties therein which prejudice the opposing party.

In the case before us, the court had instructed appellee to file a memorandum of law. Appellee declined to do so, and instead submitted a proposed judgment to the trial judge which he entered without further notice or opportunity to appellant to request oral argument. Having first announced that the parties would be given an opportunity to present memoranda of law and summaries of the evidence, it was error for the court to proceed without further opportunity to appellant to be heard.

After entry of the final judgment, the trial judge died; therefore, we have determined that we must remand for new trial.-.

REVERSED and REMANDED for new trial.

DAUKSCH, C. J., and SHARP, J., concur.

      . The contract required either the owner’s signature or permitted contractor to make a claim for an increase in the contract sum and provided for the architect to determine the sum if the parties could not.


author: SHARP, Judge.

text:
    Jeanne D. RODRIGUEZ et al., Appellants, v. Carlos Luna GONZAGA, etc., Appellee.
    No. 79-6/T4-349.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.

      Ralph V. Hadley, III of Henson, Hadley & Gnass, P. A., Winter Garden, for appellants.
    Frank R. S. Fabre of Shutts & Bowen, Miami, for appellee.
   SHARP, Judge.

Rodriquez appeals from a final judgment dismissing her law suit for lack of capacity or standing to sue on behalf of the corporate plaintiff. When Rodriguez filed a complaint on behalf of D’Agostino’s Villa Nova, Inc., the appellee, Gonzaga, filed a motion in limine contending Rodriguez had no standing to represent the corporate plaintiff. The trial judge ordered Rodriguez to prove her capacity to represent the corporation. Rodriguez relied upon the pleadings and produced two additional documents: one entitled “action by stockholders without a meeting;” and the other styled “action by the board of directors without a meeting.” The trial judge ruled that this evidence was insufficient and dismissed Counts II and IV. We find the evidence was sufficient, and therefore reverse and remand those counts for trial.

The pleadings established the parties entered into various agreements concerning the sale of 100% of the stock of D’Agosti-no’s Villa Nova, Inc. Pending payment in full, the stock was to be pledged as security with the seller, Rodriguez. The pledge agreement (attached to the pleadings) provided that if Gonzaga defaulted in his performance of the purchase and pledge agreements for a period of 7 days or longer, Rodriguez could assume the voting rights of the stock and “take any and every step necessary to assume control and management of the corporation,” including but not limited to taking written action without a meeting of either the board of directors or shareholders. Rodriguez alleged that Gon-zaga had breached numerous provisions of the purchase agreement; Gonzaga denied that he was in default.

At the hearing Rodriguez introduced the two documents in evidence, pursuant to a stipulation of the parties. The first document recorded action taken by the Board of Directors of the corporation on September 13, 1977, removing Gonzaga as an officer and electing Rodriguez as the sole corporate officer. This document was signed by Rodriguez as sole member of the Board of Directors pursuant to the pledge agreement. The second item recorded action taken by the stockholders of the corporation on the same day (signed by Rodriguez as sole stockholder pursuant to the pledge agreement), removing Gonzaga as a member of the Board of Directors and replacing him with Rodriguez.

The court ruled that the exhibits were not competent evidence because they were signed by Rodriguez as an individual and not in a corporate capacity, and they lacked the corporate seal. However, the pleadings admitted the existence of the pledge agreement and Rodriguez’ powers thereunder, and the parties stipulated to the exhibits without any reservation as to authenticity. This established a legal basis for consideration of the exhibits. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla. 1971). The signatures of stockholders or members of a corporate board of directors need not be under seal, nor are their signatures executed in a “corporate” as opposed to “individual” capacity. It is these individuals who in their stockholder and director capacities control the corporation by election of officers and board members and by authorizing various actions by others on behalf of the corporation.

The exhibits together with the pleadings were sufficient to establish the plaintiff’s threshold right to proceed to trial on behalf of the corporation. The appellee challenged whether or not a default existed under the agreements, and he will have the right to defend on this basis. Should he prevail, the powers exercised by the plaintiff under the pledge agreement will be shown as having been wrongfully exercised but that will not detract from her power to do so. We reject appellee’s argument that the plaintiff must conclusively prove the default in order to establish her right to bring the law suit on behalf of the corporation.

REVERSED and REMANDED.

DAUKSCH, C. J., and SHARP, G. K., Associate Judge, concur.

      . Counts I and III were voluntarily nonsuited by appellant. The remaining counts II and IV were dismissed in a final judgment entered in favor of Gonzaga. We have jurisdiction. Fla. R.App.P. 9.030(b)(1)(A).

      . §§ 607.01 l(l)(i), 607.097, and 607.114(3), Florida Statutes (1979).

      . §§ 607.011(l)(i) and 607.151, Florida Statutes (1979).


author: DANAHY, Judge.

text:
    Rowland HILL, etc., Appellant, v. AMERICAN MEDICAL AFFILIATES, INC., etc., et al., Appellees.
    No. 79-1124.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1980.

      Larry D. Beltz of McQuillan & Beltz, St. Petersburg, and Edna L. Caruso, West Palm Beach, for appellant.
    John W. Williams, Jeffrey R. Fuller, and Roland J. Lamb of Williams, Earle, Bras-field & Wertz, St. Petersburg, for appellees.
   DANAHY, Judge.

ON MOTION TO DISMISS

We hold that the losing party may not appeal an order granting a new trial unless that party claims that it was error to grant a new trial on any issue. Where, as in the case before us, such error is not asserted, the order granting a new trial may not serve as the vehicle for review by this court of prior rulings by the trial judge adverse to that party.

Appellant brought this suit for wrongful death seeking both compensatory and punitive damages. At the close of appellant’s case, the trial judge ruled that the evidence did not warrant submission of the issue of punitive damages to the jury. The jury awarded compensatory damages to appellant in the amount of $55,000.

All parties filed motions for new trial, appellees requesting a new trial on compensatory damages and liability, and appellant on the issue of punitive damages. The trial judge entered an order granting a new trial on the issue of compensatory damages only and appellant assails that order for its failure to grant a new trial on the issue of punitive damages as well.

A party “aggrieved” by an order granting a new trial may bring an appeal from that order without waiting for final judgment. § 59.04, Fla.Stat. (1979), incorporated in Fla.R.App.P. 9.130(a)(4). Appellant’s rationale is that he is aggrieved by the order granting a new trial solely on the issue of compensatory damages in the same sense that he would be aggrieved by a final judgment awarding compensatory damages but not punitive damages. We agree with appellees that appellant’s challenge is a masquerade for what is in fact an impermissible appeal from an order denying a new trial in which this court is asked to review the propriety of the directed verdict in appellees’ favor on the issue of punitive damages. That review may be sought only on appeal from a final judgment, which has not been entered in this case and cannot be entered until the issue of compensatory damages is determined. Accordingly, we grant appellees’ renewed motion to dismiss.

In support of his position, appellant relies on Bowen v. Willard, 340 So.2d 110 (Fla. 1976), for the proposition that the question of a directed verdict may be addressed on appeal from an order granting a new trial. In that case the supreme court held that appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible, and that the appellate courts of this state have the authority on such an appeal to deal with other appeala-ble issues. Appellant’s reliance on Bowen is misplaced; the supreme court in that case did not hold that an order granting a new trial is to be equated to a final judgment for purposes of determining its appealability. The court simply pointed out that when a party aggrieved by an order granting a new trial brings an appeal from that order challenging the propriety of a new trial on any issue, a decision by the reviewing court that no new trial should have been granted renders the entry of a final judgment a purely ministerial act. In such a situation, said the supreme court in Bowen, the reviewing court should go ahead and consider all other issues properly raised which could be raised on appeal from the final judgment. As the supreme court pointed out, that is simply an expeditious use of judicial time.

We are not asked in the instant case simply to reverse the order granting a new trial, which would mandate the entry of an appealable final judgment. On the contrary, we are asked to reverse with directions that the trial judge enter an order granting a new trial on the issue of punitive damages as well as the issue of compensatory damages. This case clearly does not fall within the parameters of Bowen v. Willard.

For review of the directed verdict for appellees on the issue of punitive damages, appellant must await the entry of final judgment and that, in turn, must await the completion of the new trial on the issue of compensatory damages.

DISMISSED.

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

      . The trial judge expressed his decision by granting summary judgment for appellees on the issue of punitive damages, which was the equivalent of directing a verdict for appellees on that issue. In any event, a partial summary judgment for the defendant on the issue of punitive damages is not appealable. Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980).

      . An order denying a new trial is not appeala-ble. Fla.R.App.P. 9.130(a)(4).

      . A directed verdict for the defendant on the issue of punitive damages is not within the categories of nonfinal orders which may be appealed. Fla.R.App.P. 9.130(a)(3). Cf. Kingsland v. National Advertising Company, supra footnote I (partial summary judgment for defendant on issue of punitive damages is not appealable).

      . Initially we denied appellees’ motion to dismiss without prejudice to appellees’ raising the same argument in their brief on the merits. Appellees did so, thus in effect renewing their motion.

      .Since an appeal of an order granting a new trial is a plenary appeal pursuant to Florida Rule of Appellate Procedure 9.110 and the scope of review under that rule extends to any matter or ruling occurring prior to the filing of notice of appeal, the Bowen rule appears to be reflected in the appellate rules as revised in 1977.


text:
    Ronald R. JOHNSON and Peggy Johnson, his wife, and George Crossley, Appellants, v. UNIGARD INSURANCE COMPANY, Appellee.
    No. 79-1579/T4-663.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.

      David C. Beers of Rogers & Dowling, P. A., Orlando, for appellant Crossley.
    Kenneth R. Cate of Maher, Overchuck & Langa, P. A., Orlando, for appellants Johnson.
    Brian C. Sanders of Sanders, McEwan, Mims & McDonald, Orlando, for appellee.
   SHARP, Judge.

Ronald and Peggy Johnson and George Crossley appeal from a final judgment denying coverage and any duty to defend Crossley on the part of Unigard Insurance Company under its homeowner’s liability insurance policy issued to Crossley. Ronald Johnson was injured when he was unable to steer a three-wheel, power driven vehicle, called a Tri-Sport, in Crossley’s yard, and crashed into Crossley’s mailbox. Crossley gave Johnson no special instructions before letting him ride the Tri-Sport, although it steers differently than motorcycles. The Johnsons sued Crossley for negligent failure to warn or negligent entrustment of a motor vehicle. Crossley cross claimed against Unigard, and a separate trial was held on the coverage issue. We affirm the judgment.

Crossley’s homeowner’s policy contained the following exclusion:

This policy does not apply:
1. Under coverage E-family liability and coverage F-medical payments to others;
a. To bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(2) any motor vehicle owned or operated by or rented or loaned to any insured; but this subdivision (2) does not apply to bodily injury or property damage occur-ing on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the resident premises; or
(3) any recreational motor vehicle owned by any insured, if the bodily injury or property damage occurs away from the residence premises; but this subdivision (3) does not apply to golf carts while used for golfing purposes.

The Unigard policy defined motor vehicle as “a land vehicle, trailer, or semi-trailer, designed for travel on public roads . but does not include, except while being towed by or carried on a motor vehicle any of the following: utility, boat, camp or home trailer, recreational vehicle, crawler of farm type tractor farm implement or, if not subject to motor vehicle registration, any equipment which is designed for use principally off public roads.”

Crossley did not own the Tri-Sport at the time of the accident. It was loaned to him to allow him to test it for marketability. It had a dealer’s tag, and the evidence did not establish it was designed for use principally off public roads. In fact, it was tested on Interstate Highway 4. The exclusion in the Unigard policy for motor vehicles, defined broadly as land vehicles “designed for travel on public roads,” clearly encompasses the Tri-Sport in this case. See Allstate Ins. Co. v. Almgreen, 376 So.2d 1184 (Fla.2d DCA 1979); Womack v. Life & Casualty Insurance Company of Tennessee, 184 So. 357 (La.App. 1st 1938); LeCroy v. Nationwide Insurance Company, 251 N.C. 19, 110 S.E.2d 463 (1959).

We reject the plaintiffs’ further argument that Crossley’s negligent entrustment of the Tri-Sport to Johnson creates an independent tort and therefore a separate basis for coverage under the homeowner’s liability policy, despite the exclusion for damages arising out of the operation or use of a motor vehicle. Cooter v. State Farm Fire and Casualty Company, 344 So.2d 496 (Ala. 1977).

The clear and unambiguous language here applicable is susceptible of but one meaning: that this homeowner’s policy excludes personal liability coverage for bodily injury arising out of the ownership and use of an automobile owned or operated by the insured. It is the very condition spelled out in this exclusion from coverage that must be proved in fixing liability against the insured under the negligent entrustment doctrine. Once the essential elements of the tort claim for negligent entrustment of a motor vehicle are proved, the policy exclusion is likewise legally operative so as to effectively bar liability of the insurer. (Citations omitted.)

344 So.2d at 499.

The appellants have failed to convince us that overlapping and conflicting coverage by homeowners insurers and vehicle insurers, which would necessarily follow adoption of the negligent entrustment theory, is either required by Florida law or in the public interest. Accordingly, the judgment is affirmed.

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    Dallas Eva WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 78-2709/T4-337.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Wright entered a nolo contendere plea to obtaining goods by use of a stolen credit card, and reserved his right to appeal the denial of his motion for discharge for violation of the “speedy trial” rule. The lower court ruled the speedy trial time did not run from Wright’s first arrest, (for which the 180 day period had run) because it involved different criminal conduct, or a different criminal episode than the one charged in this case. We disagree.

Seminole County deputies arrested Wright on August 5, 1974 in Seminole County for buying, receiving and concealing stolen property. The charge involved Wright’s possession and purchase of two ten speed bicycles from the Maitland Bike Store, in Orange County on June 25, 1974, with a stolen credit card. These charges were dropped on August 13, 1974. On August 26,1974, Orange County filed an information alleging Wright obtained the two ten speed bicycles on June 25, 1974, from the Maitland Bike Shop, by fraudulent use of a stolen credit card.

Orange County deputies attempted to arrest Wright, but they were unable to locate him at the address in their records at Black-wood Avenue in Altamonte Springs. At the time Wright was arrested by the Seminole County deputies he was living on Oak-hurst, having moved there from Blackwood. He did not then know about the Orange County charges. When he heard Seminole dropped its charges against him, he moved to Deltona in Volusia County. He notified the U.S. post office and the telephone company of his new address. Wright was later arrested in Winter Park in December of 1977 on a different charge. Only then did Orange County finally arrest him on the original Orange County capias.

The “speedy trial” 180 day period begins to run when the defendant is arrested “as a result of the conduct or criminal episode giving rise to the crime charged.” Subsection (h)(2) of the rule provides that the speedy trial period shall not be avoided by allowing the state to nolle prosse a crime charged and later prosecute a new crime “grounded on the same conduct or criminal episode.” (Emphasis supplied). What constitutes the “same conduct” or “criminal episode” is not defined in the rule. However, it has been given a much broader scope than the test for when prosecution is barred by double jeopardy. State ex rel. Meyer v. Keough, 325 So.2d 75 (Fla. 2d DCA 1976), cert. denied, 336 So.2d 601 (Fla.1976); State v. Boren, 273 So.2d 415 (Fla. 3d DCA 1973); Bryant v. Blount, 261 So.2d 847 (Fla. 1st DCA 1972), cert. denied, 267 So.2d 82 (Fla.1972).

Both of the charges against Wright involved his obtaining the same two ten speed bikes from the same store, on the same day. The fact that Wright allegedly obtained the bikes by use of a stolen credit card in Orange County, and subsequently held them in Seminole County might allow the prosecution to charge Wright with the commission of two different crimes, but it is clear both crimes grew out of the same criminal episode. Richardson v. State, 340 So.2d 1198 (Fla. 4th DCA 1976).

State v. Evans, 338 So.2d 51 (Fla. 4th DCA 1976), cert. denied, 346 So.2d 1248 (Fla.1977) is not controlling because in Evans, the defendant was charged with committing different acts of arson at different times, against different property and victims. Had Wright been charged with obtaining different merchandise from different stores, even if it were with the same stolen credit card on the same day, we would have found Evans persuasive.

We also reject the state’s argument that the “speedy trial” period did not run because Wright left the county and was not “continuously available” for trial. Fla.R. Crim.P. 3.191(a)(1) necessitates a finding that the defendant was “continuously available for trial during such period of time for trial” prior to granting the defendant’s motion for discharge. The lower court drew no such conclusion, nor was it required to do so since it denied the defendant’s motion for discharge. However its findings clearly show Wright was “continuously available” for trial during the running of the 180 day period. Orange County failed to arrest Wright because it had an incorrect address. The court found that Wright left his forwarding address with the U.S. post office and the telephone company. There was no testimony or finding that Wright was evading arrest in any way.

The conviction is reversed and the defendant is discharged.

REVERSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Fla.R.Crim.P. 3.191(a)(1).

      . Fla.R.Crim.P. 3.191(a)(1). Wiggins v. State, 384 So.2d 43 (Fla. 1st DCA 1980).

      . State v. Boren, 273 So.2d 415 (Fla. 3d DCA 1973); Bryant v. Blount, 261 So.2d 847 (Fla. 1st DCA 1972), cert. denied, 267 So.2d 82 (Fla.1972).

      . State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla. 4th DCA 1972).

      . See State ex rel. Green v. Patterson, 279 So.2d 362 (Fla. 2d DCA 1973).


author: GREEN, OLIVER L., Associate Judge.

text:
    STATE of Florida, Appellant, v. Eric Anthony FRANCOEUR, and Debra Kay Stewlow, Appellees.
    Nos. 79-1135/T4-567, 79-1207/T4-579.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, Chief Appellate Division, West Palm Beach, for appellees.
   GREEN, OLIVER L., Associate Judge.

The above cases are consolidated in this appeal.

The trial court granted appellee’s motion to suppress various controlled substances including a quantity of non-tax paid alcoholic beverages taken from a vehicle, which was then occupied by the appellees. We reverse.

On the evening of January 10, 1979, a concert had begun at the Bob Carr auditorium in Orlando, Florida, at which time two Orlando police officers, Sergeant Charles Smith and Officer Michael Wenger, saw a vehicle variously described as a “mobile home,” “camper home,” or “van,” which was occupied by the appellees. The vehicle was parked in the Bob Carr Auditorium Municipal Parking Lot. Sergeant Smith approached the occupants of the vehicle to ask if they planned to go inside the auditorium. Sergeant Smith shined his flashlight inside the vehicle and saw the defendant, Eric Anthony Francoeur, shove something between his legs. The defendant, Mr. Francoeur, was directed by Sergeant Smith to pull his hand out, at which time, -Sergeant Smith observed the handle of a .45 caliber automatic pistol. This pistol was later found to be loaded with armor piercing bullets, and was also found to have the serial number removed. Sergeant Smith ordered the defendant, Eric Anthony Fran-coeur, and co-defendant, Debra Kay Stew-low, to exit the vehicle. He then searched both for weapons and called for assistance.

A third Orlando police officer, Officer Repass, then arrived and was instructed by Sergeant Smith that the defendant, Eric Anthony Francoeur, was under arrest for possession of the weapon, and that he should be carefully searched before being placed in the patrol car of Officer Repass. Officer Repass found 20 packages of controlled substances during this search. Sergeant Smith then asked the defendant, Debra Kay Stewlow, for identification. Ms. Stewlow opened the passenger door of the vehicle to get her purse, and at that time, Sergeant Smith observed a round, plastic package behind the driver’s seat containing a white powder, which he believed to be a controlled substance. He also observed bales between curtains which hung behind the seats of the vehicle. Sergeant Smith suspected these bales contained marijuana.

Officer Wenger took over supervision of the defendant, Debra Kay Stewlow. Officer Wenger testified that he advised the defendant, Debra Kay Stewlow, of her constitutional rights and then asked if there were other people, drugs, or weapons in the vehicle. Ms. Stewlow told Officer Wenger that she and the defendant, Eric Anthony Francoeur, had been smoking marijuana in the vehicle, and that there was a small amount of marijuana in the vehicle, as well as an additional weapon. Ms. Stewlow was vague as to whether or not anyone else was inside the vehicle. This information was relayed by Officer Wenger to Sergeant Smith. Sergeant Smith then called for his supervisor and the Department K-9 unit.

Officers Smith and Wenger first approached the vehicle at approximately 9:00 p. m., and approximately twenty minutes later, Orlando Police Officer Kenneth Gregory arrived with a dog named Kurt. Officer Gregory first entered the vehicle for the purpose of determining if anyone else was inside. The police dog, Kurt, was trained in locating controlled substances. Before entering the vehicle, the dog indicated there were drugs inside. Officer Gregory and Kurt entered the vehicle and the dog alerted on an attache case. The dog nosed the case, causing it to open. A plastic bag in the attache case was then observed by Officer Gregory. Officer Gregory closed the case and then observed that the bales contained cases of Coors beer. Officer Gregory existed the vehicle, followed by the dog’s trainer, who had picked up the attache case and carried it out. The attache case was then returned to the vehicle.

While some of the aforementioned proceedings were transpiring, Officer Wenger went into the Bob Carr Auditorium in order to use the telephone. A young lady named Kathy Turnbeaugh told him that she had earlier been approached by a white female fitting the description of the Defendant, Debra Kay Stewlow, who asked if she wanted to buy controlled substances. Miss Turnbeaugh was taken outside, where she identified Ms. Stewlow as the female who had approached her.

At this point, the officers obtained a search warrant and during the execution of the warrant, controlled substances were found in the attache case. Additional controlled substances, drug paraphernalia, 62.5 cases of untaxed Coors beer, and a .38 caliber Colt revolver were found in the vehicle.

The trial judge’s order does not provide us with the basis on which he suppressed the evidence. The appellees, by their counsel, candidly acknowledge that except for the special configuration of the vehicle, the entire procedure was supported under the “automobile exception” line of cases, as first decided in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Indeed, we agree that the conduct of the Orlando Police Department officers in this case fully complies with the law applicable to vehicular searches. The configuration of the vehicle in this case does not alter the result. In the first instance, the vehicle in this case was generally described as being a “mobile home,” “camper home,” or “van.” The dimensions of the vehicle were 8 feet by 22 feet. The facts indicate that the vehicle was being used as personal transportation for the defendants, Eric Anthony Francoeur and Debra Kay Stewlow. The vehicle was also being used at a public place, for the purpose of transporting several different types of controlled substances, narcotic paraphernalia, untaxed beer and weapons.

While there is no testimony that the defendants were using the vehicle as a living accommodation, it is our view that this factor would not alter the results, in light of all other factors existing in this case. The appellee’s attorney has not directed us to any authority which would exclude vehicles of this sort from the “automobile exception” theory. We are aware of none.

In State v. Lopez, 369 So.2d 623 (Fla. 2d DCA 1979), the court applied the “automobile exception” rule to authorize a warrant-less search of a locked, cargo portion of a large rental truck. In Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978), the court held that the “automobile exception” rule could be applied to the search of a commercial fishing boat. The court stated that “one’s reasonable expectation of privacy in an automobile or boat is less than that of a private dwelling and therefore is more open to legitimate governmental intrusion.” In Chestnut v. State, 382 So.2d 1349 (Fla. 4th DCA Í980), the court upheld the search of a “seagoing vessel” under the “exigent circumstances” doctrine.

We see no reason for applying an exception to the “automobile exception” rule under the facts of this case. Furthermore, we find that the seizure of the attache case was entirely proper, and the fact that it had been opened by the dog had no bearing on the subsequent search under a lawfully executed search warrant. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979).

Lastly, the defendant, Eric Anthony Francoeur and Debra Kay Stewlow, present the time-worn argument that no “exigent circumstances” existed because the vehicle in this case was under police custody. The facts of this case, including the observance of most of the contraband by Sergeant Smith from outside the vehicle, and the duty of the officers to search for additional occupants, cause this argument to pale to a state of insignificance in light of the holdings in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The United States Supreme Court also rejected this argument in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970), stating:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which is the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

We have carefully reviewed all of the several search and seizure incidents related to the multiple charges against each defendant in this case. We do not find fault with any such incident during which the Orlando Police Officers searched for and seized the several items which have been suppressed in this case. We reverse the order granting the appellee’s motion to suppress, and remand the case to the trial court for further proceedings pursuant to this opinion.

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Cecil A. WOODARD.
    No. 65441.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 3, 1980.
    Dissenting Opinion Nov. 4, 1980.

      Carl A. Leckband, Jr., Miguez & Leck-band, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Charles Richard, Abbott J. Reeves, Asst. Dist. Attys., for the State.
   WATSON, Justice.

Defendant, Cecil A. Woodard, was convicted of operating a motor vehicle after being adjudged an habitual' offender in violation of LSA-R.S. 32:1480. He was sentenced to three years in jail and has appealed to this court, relying upon thirteen assignments of error.

FACTS

In February, 1976, Woodard, with advice of his attorney, Henry Liles, pleaded guilty to two counts of driving while intoxicated. In June, 1976, he was arraigned for running a red light, disturbing the peace and driving while intoxicated. Defendant, who stated that he had engaged the same counsel, waived the presence of his attorney at arraignment and pleaded not guilty. In February, 1977, defendant, without counsel, pleaded guilty to a bill of information which had been amended to read “First Offense.” Since this was Woodard’s third conviction of driving while intoxicated, he fit the description of an habitual offender in LSA-R.S. 32:1472(A)(l)(b):

“A. A habitual offender shall be any person, resident or non-resident, whose record, as maintained in the office of the Department of Public Safety shows that such person has accumulated the convictions for separate and distinct offenses described in the following Paragraphs (1) and (2) of this Subsection, committed during a five-year period, provided that where more than one included offense shall be committed within a twelve-hour period such multiple offenses shall be treated for the purposes of this Chapter as one offense:
“(1) Three or more convictions, singularly or in combination of any of the following separate and distinct offenses arising out of separate acts:
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“(b) Operating or attempting to operate while under the influence of intoxicating liquor or drugs, operating or attempting to operate while impaired by the use of intoxicating liquor or drugs or operating or attempting to operate while intoxicated by the use of intoxicating liquor or drugs;”

On May 3, 1977, the State filed a petition for a rule to show cause why defendant’s driving privileges should not be suspended. In the petition, it was alleged that:

“2.
“Your petitioner has received from the Department of Public Safety an abstract of the driving record for defendant including excessive violations of such magnitude that he should be declared a habitual offender as defined by Louisiana Revised Statutes 32:1472.” (Tr. 26)

Accompanying the petition was a certified conviction record from the Department of Public Safety. Defendant admits that he was served in the suit (Tr. 71), and the sheriff’s return of service is in the record. However, defendant did not appear at the rule hearing on May 18, 1977, when judgment was rendered declaring him an habitual offender and suspending his driving privileges for five years. The court notified the Department of Public Safety of the judgment (as required by LSA-R.S. 32:1477) but no notice of the judgment was given to defendant himself.

On August 3,1978, at approximately 3:30 A.M., defendant was observed driving with a headlight out and was stopped by a state trooper. A driver’s license check revealed that defendant’s license had been suspended. Defendant was cited for driving under revocation in violation of LSA-R.S. 32:415.

A bill of information was filed charging defendant with unlawful operation of a motor vehicle after being adjudged an habitual offender in violation of LSA-R.S. 32:1480. Defendant’s motion to quash was denied. At trial the court found defendant guilty, denied his motion for a new trial, and sentenced him to three years in the Calcasieu Parish Jail.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the bill of information should have been quashed because the habitual offender statute (LSA-R.S. 32:1471, et seq.) is unconstitutional in its failure to provide for notice of adjudication as an habitual offender. The Statute is civil in nature, State v. Page, 332 So.2d 427 (La., 1976); State v. Bradley, 360 So.2d 858 (La., 1978); State v. Williams, 332 So.2d 432 (La., 1976). However, because of the potential criminal penalties for violation, defendant contends that notice was necessary for him to receive due process of law.

Defendant’s contention is without merit. He was personally served with a rule to show cause, an order to appear in court to show why his driving privileges should not be suspended because of being an habitual offender. When defendant failed to appear, the rule was made absolute. Service of this petition and order notified defendant of the possible consequences of his non-appearance. Defendant was afforded an opportunity for a hearing and chose not to take it. The requirements of procedural due process are prior notice and a chance to be heard, which defendant received. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

ASSIGNMENT OF ERROR NUMBER TWO

It is contended that the trial court erred in allowing into evidence a citation issued by a state trooper containing information furnished by defendant. Because the information, consisting of name, address, driver’s license number and age, was essential in showing defendant to be an habitual offender and was obtained prior to any warning against self-incrimination, defendant contends it was inadmissible.

The information itself was not incriminating. Moreover, defendant was stopped for a valid reason (only one headlight), and the information was equally available to the state trooper from defendant’s driver’s license. LSA-R.S. 32:411(D) provides, in pertinent part:

“D. The licensee shall have his license in his immediate possession at all times when driving a motor vehicle and shall display it upon demand of any officer or agent of the department or any police officer of the state, parish or municipali-■j-y * * * »
The evidence was admissible.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that the three D.W.I. convictions were erroneously admitted into evidence without being properly identified as his. They were based upon citations issued to one with the same driver’s license number, date of birth, height and weight.

LSA-R.S. 32:1476 provides the procedure to be followed if a defendant denies a prior conviction, but Woodard did not appear at the rule hearing to contest the convictions. See State v. Neathery, 357 So.2d 901 (La.App. 2 Cir. 1978). There was no error.

ASSIGNMENTS OF ERROR NUMBER FOUR AND TWELVE

In these assignments, defendant complains of the use of his prior guilty pleas because: (1) he was unrepresented by counsel; and, (2) he was not advised of his rights as required by Boykin.

A person may be adjudged an habitual offender in a civil proceeding on the basis of prior uncounseled guilty pleas. State v. Free, 321 So.2d 50 (La.App. 3 Cir. 1975); State v. Love, 312 So.2d 675 (La.App. 2 Cir. 1975). However, a prior D.W.I. conviction may not be used to subject an accused to criminal prosecution and imprisonment as a second offender under LSA-R.S. 14:98, unless there was counsel or a knowing waiver of the right to counsel at the time of the first conviction. City of Monroe v. Fincher, 305 So.2d 108 (La., 1974); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

When Cecil A. Woodard pleaded guilty and was convicted of the first two charges of driving while intoxicated he was represented by counsel. At the time of his arraignment on the third charge of driving while intoxicated, Woodard informed the court that he had retained the same attorney, Henry Liles, although he later appeared without counsel and pleaded guilty. Thus, Woodard was either represented or waived counsel at all three convictions. Consequently, the convictions may be used to subject defendant to imprisonment for driving after adjudication as an habitual offender under LSA-R.S. 32:1481.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), holds that the record must disclose that a defendant voluntarily entered a plea of guilty, while understanding that he was waiving various constitutional rights, including the privileges against compulsory self-incrimination, the right to trial by jury, and the right of confrontation. Defendant contends on appeal that he was not advised of those rights when he pleaded guilty to the charges of D.W.I.

At trial, defendant’s objection to the use of the prior guilty pleas was based solely on the ground that they were made without counsel. A new basis for an objection cannot be presented for the first time on appeal. LSA-C.Cr.P. art. 841; State v. Davis, 357 So.2d 1125 (La., 1978); State v. Fowlkes, 352 So.2d 208 (La., 1977). Therefore, it is not necessary to consider whether Boykin was followed at the time of defendant’s guilty pleas or whether the rule of Boykin is applicable in this instance.

ASSIGNMENTS OF ERROR NUMBER FIVE, SIX, SEVEN, EIGHT, NINE, TEN AND THIRTEEN

These assignments of error relate to the fingerprinting and introduction of evidence of fingerprints and other documents at trial.

Defendant complains that the court allowed an expert witness, Deputy Sheriff Tom Harless, Supervisor of Identification and Records Division of the Calcasieu Parish Sheriff’s Department, to take his fingerprints in court. This issue was decided in State v. House, 320 So.2d 181 (La., 1975), which held that defendant’s privilege against self-incrimination was not violated when his fingerprints were taken in court.

Defendant contends that the trial recesses the court allowed to enable the State to obtain an expert fingerprinter prejudiced him. A fifteen minute recess allowed the State’s expert witness time to arrive at court. The witness was en route. After the fingerprinting, the court granted a few minutes recess so that defendant’s prints could be compared with those on fingerprint cards. The granting of recesses is in the discretion of the trial court, and there is no showing of prejudice.

Defendant also objects to the introduction of his past fingerprint cards. The custodian of the cards testified that he did not take the fringerprints himself, and could not testify of his own knowledge that the prints were taken on the stated days for the listed offenses. The fingerprint cards were obtained from the identification division, which was under his supervision. They were signed to show who took the fingerprints. The witness identified the prints and connected them with defendant’s rap sheet. State v. Nicholas, 359 So.2d 965 (La., 1978) held that fingerprint cards are within the “public records” exception to he hearsay rule. The trial court correctly admitted the fingerprint cards.

Defendant’s contention that his pri- or arrest records were improperly admitted is also without merit. They were properly certified and admissible as public records. State v. Overton, 337 So.2d 1201 (La., 1976).

ASSIGNMENT OF ERROR NUMBER ELEVEN

Defendant contends that the court should have granted his motion for acquittal because there was no evidence in the record by which he could have been found guilty of driving after being declared an habitual offender. The assignment is without merit.

DECREE

For the reasons assigned, we affirm the conviction and sentence.

AFFIRMED.

CALOGERO, J., dissents.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Defendant’s assignments of error numbers one and four have merit.

      . LSA-R.S. 32:1472.