author: EN BANC.

text:
    Elaine D. GOODELL, Appellant, v. Richard C. GOODELL, Appellee.
    No. 81-468.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Frank B. Kessler, of Zwickel, Gross & Kessler, Lake Worth, for appellant.
    F. Neal Colvin and Joel M. Weissman, of Sales & Weissman, P.A., West Palm Beach, for appellee.
   EN BANC.

Appellant (former wife) was found in contempt because of the violation of an injunction contained in the final judgment dissolving her marriage, which judgment was entered some three years earlier. She appeals. We affirm.

The injunction provided, “Both parties are enjoined from harassing, hurting or molesting the other.” The wife does not dispute the fact of her violation which consisted of entering her former husband’s home without invitation and then screaming and threatening to kill him. The wife’s appellate point simply is a contention that the injunction was void ab initio because it was “perpetual,” that is to say, void because no time limit was provided for its termination.

We agree as basic that if the injunction was void from the outset the contempt stemming from it would necessarily fail. However, we do not agree that the injunction was void.

The wife places her hopes upon language contained in an opinion issued by this court in U Shop Rite, Inc. v. Richard’s Paint Manufacturing Co., Inc., 369 So.2d 1033 (Fla. 4th DCA 1979). This is the particular quote upon which she relies, “a perpetual injunction is unknown to the law, therefore unenforceable through a judgment of the court and the attempt to impose such a sanction is an abuse by the trial court of its equity powers.” Indeed, if these words are taken alone and literally the wife would be home scot free. However, such is not to be the case.

For comparison, what are the salient facts of the U Shop Rite case which prompted the quote upon which the wife relies? U Shop Rite and others contracted not to enter into a certain competitive paint business for a period of ten years. Apparently U Shop Rite and others breached and were taken to court. An injunction was entered which “perpetually” enjoined such competition. This court then correctly held in its published opinion, among other things, that the injunction could not be in excess of the terms of the contract, meaning that it could not exceed the contracted 10 year term or limitation.

Meeting the issue head on, we hereby recede from the principle, “a perpetual injunction is unknown to the law, therefore unenforceable through a judgment of the court and the attempt to impose such a sanction is an abuse by the trial court of its equity powers” found in the U Shop Rite case which is also cited in 29 Fla.Jur.2d, Injunctions, § 83 at page 748. We do so because we are persuaded that it is incorrect and misleading. We think a correct reflection of the U Shop Rite rationale would be, depending on the facts, injunctions that are over broad or over long in application are erroneous and may not be enforceable to the extent that they are over broad or over long.

In Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So.2d 143 (1942), the Supreme Court of Florida recognized the proper existence of permanent or perpetual injunctions. It cited with approval (7 So.2d at page 146) an excerpt from 28 Am.Jur. pages 494 and 495. Excerpting therefrom still further, we note:

Unless otherwise provided by its terms, the injunction will remain in force as long as the court may feel that the protection which it affords is necessary to complainant’s rights, or until conditions demand a modification of that protection or its entire removal. There is no doubt but that the court which renders a decree for a permanent or perpetual injunction may open or modify the same where the circumstances, and circumstances of the parties, are shown to have so changed as to make it just and equitable to do so, and especially where the decree itself reserves the right, (emphasis supplied)

See also 42 Am.Jur.2d, Injunctions § 334; and 29 Fla.Jur.2d, Injunctions § 84.

We hold that the injunction here was properly entered and enforceable. See Carpenter v. Carpenter, 252 So.2d 591 (Fla. 1st DCA 1971); Walborsky v. Walborsky, 258 So.2d 304 (Fla. 1st DCA 1972), cert. denied, 263 So.2d 831 (Fla.1972). If in the future a party feels that circumstances have changed so as to justify its modification or dissolution, they have the right to apply to the court for such change.

Affirmed.

LETTS, C.J., and DOWNEY, BERANEK, HERSEY, GLICKSTEIN, HURLEY and WALDEN, JJ., concur.

ANSTEAD and DELL, JJ., did not participate in the decision of the court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re The ESTATE OF Christina VETTESE, Deceased.
    No. 81-656.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Larry Klein, West Palm Beach, and Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for appellant-Gary Vettese, individually and as Ancillary Personal Representative of the Estate of Christina Vettese, deceased.
    John W. Hewitt of Warwick, Campbell & Hewitt, Palm Beach, and John L. Burns, P.A., West Palm Beach, for appellees-Emily McArthur and Mafalda Smith.
   PER CURIAM.

This is an appeal brought by Gary Vettese from a final judgment which primarily voided a personal representative’s deed which conveyed certain Florida property to decedent’s son, Gary Vettese. This son served as one of the co-executors of the decedent’s domicilliary estate in Canada and he also served as ancilliary personal representative of the decedent’s Florida estate. We have surveyed and considered the record and appellate treatment. We reach the conclusion that reversible error has not been made to appear as concerns the trial court’s decision to cancel the deed and conveyance in question. We affirm that portion of the judgment.

The final judgment went further and ordered the conveyance of the Florida property which is the subject of this appeal directly to the three daughters of the decedent as tenants in common. This was done despite the fact that there was no pleading basis or request for such action. These daughters were residuary beneficiaries under decedent’s will. This disposition of the property was error. Prior to the abortive transfer to Gary Vettese the property was a part of the decedent’s estate. Thus, it is basic that, upon cancellation of the transfer, the property should revert to the estate and be there administered under the terms of the will according to law.

That portion of the final judgment which ordered the conveyance of the Florida property to the three daughters is reversed; in all other respects the judgment is affirmed; and the cause is remanded for further proceedings consistent herewith.

Affirmed in part, reversed in part, and remanded.

LETTS, C.J., and DOWNEY and WALDEN, JJ., concur.

      . It could well be that, upon proper distribution at the conclusion of the administration, the three daughters will receive this Florida property as residuary beneficiaries. However, this should only occur in regular course following the adjudication of any claims against the Estate and the payment of all taxes and debts, if any.


author: HERSEY, Judge.

text:
    OUR SAVIOR LUTHERAN CHURCH, Appellant, v. TOM JONES ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 81-761.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      G. Russell Peterson of Petersen & Pegg, Vero Beach, for appellant.
    Gordon B. Johnston, Vero Beach, for ap-pellee.
   HERSEY, Judge.

This is an appeal from a final judgment ordering specific performance of a contract.

Appellant Church as seller and appellee corporation as buyer entered into a purchase and sale agreement which contained the following condition: “This offer is subject to the buyer obtaining rezoning within 6 months from current zoning to R2 Multifamily. If rezoning not granted the buyer has the option to purchase as is.” Other pertinent conditions included a requirement that seller would furnish to buyer within 30 days “from date of contract” a title insurance commitment and closing would take place “within 30 days of rezoning if approved.” The contract was dated May 13, 1978.

On October 23, 1978, seller was advised that additional hearings would be necessary to accomplish rezoning and such hearings would require approximately four to six months. Seller, through its attorney, advised buyer that the option would only be open until November 13, 1978. On November 27, 1978, seller returned the earnest money deposit to buyer noting that the contract period had expired. The following day seller received a letter from buyer stating: “If, however, your congregation does not vote to grant me the extension in January in order to proceed with the city for the zoning change, then I wish to inform you and your congregation that I reserve my rights under the contract to take title, as is, at that time.”

Two additional factual matters deserve mention. Some evidence indicated that seller had led buyer to believe an extension of time would not be out of the question. The complaint, however, contains no allegation that the contract was amended, or that oral representations were made and relied upon nor did the complaint raise any other issue making this evidence relevant and material. The parties conceded that the title insurance commitment was never delivered. Again there is no allegation raising this issue nor does the evidence show that this omission had any effect upon buyer. These paper issues play no part in our determination for the reasons we have indicated.

The trial court held that the option to take “as is” was timely exercised. We disagree. In fact, we think the option was never exercised.

The contract clearly provided that the buyer had six months to obtain rezoning or to exercise the option to take the property “as is.” The buyer did not obtain rezoning during that period nor was there any attempt to exercise the option. Buyer argued and the trial court concluded that the option period did not expire on November 13, 1978. We find no evidence to substantiate a term longer than six months. In Hi-Acres Groves, Inc. v. Bassett, 338 So.2d 1076, 1077 (Fla. 4th DCA 1976), we pointed out:

The rule in Florida is well established that in a suit for specific performance of a contract for the sale of realty the plaintiff must do more than prove his case by a preponderance of the evidence; he must prove his case by competent and satisfactory proof which must be clear, definite, and certain.

The buyer, appellee here, did not meet that burden in attempting to show an option term longer than six months.

Even assuming that the evidence established a period longer than six months, the option was never effectively exercised. The letter relied on by appellee simply indicated an intention to take some action in January if an extension was not forthcoming. Thus on November 29,1978, there was no definitive exercise of the option. Looking into the future we see that the buyer did not even commit himself to exercise the option in January. Buyer simply reserved the right to exercise the option in January without in any way being legally obligated to take the property “as is” unless in January, buyer elected to exercise his “rights under the contract.”

Summarizing, the buyer-appellee has not shown by clear, definite and certain proof that the term of the option was longer than six months. See Hi Acres Groves v. Bassett, 338 So.2d at 1076, and Brown v. Dobry, 311 So.2d 159 (Fla. 2d DCA 1975). The purported exercise of the option on November 28,1978, was not only too late, Pattison v. Reid, 303 So.2d 40 (Fla. 3d DCA 1974), but was also ineffective.

We therefore reverse and remand with instructions to enter final judgment for appellant, voiding the purchase and sale agreement.

REVERSED and REMANDED WITH INSTRUCTIONS.

LETTS, C.J., and DELL, J., concur.


author: GLICKSTEIN, Judge.

text:
    Carlos H. MERCADO, Appellant, v. P. Jacques PARENT, Appellee.
    No. 81-824.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Jeff M. Brown of Lavalle, Wochna, Rutherford, Truesdell & Brown, Boca Raton, for appellant.
    Robert C. Furr, Boca Raton, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a post-judgment order requiring a lawyer who represented a defendant in a civil action to divulge the client’s address in aid of execution following the entry of final judgment. We reverse.

The lawyer-client privilege is codified in section 90.502, Florida Statutes (1979) and enables the lawyer to claim the privilege on behalf of the client to refuse to disclose the contents of a confidential communication. Exclusions therefrom are set forth in the same section. The address of a client is not specifically mentioned therein.

97 C.J.S. Witnesses § 286, at p. 812 (1957) states the general rule to be:

As a general rule an address given confidentially by a client to an attorney while consulting him in a professional capacity is a privileged communication, and he will not be compelled to disclose it where no sufficient ground is shown for the necessity therefor.

(Footnotes omitted.) We believe it to be a sound rule. See also Annot., 16 A.L.R.3d 1047 (1967). Cf. McCormick’s Handbook of the Law of Evidence § 90 (E. Cleary 2d ed. 1972); Willis v. Superior Court, 112 Cal.App.3d 277, 169 Cal.Rptr. 301 (1980).

We realize that there is authority for not applying the general rule during the pend-ency of litigation. The court is entitled to know the identity and addresses of the parties. See Burden v. Church of Scientology of California, 526 F.Supp. 44 (M.D.Fla.1981), which relied upon Florida Rule of Judicial Administration 2.060(d) in requiring former counsel for defendants to disclose the defendants’ whereabouts as the plaintiff had been unable to serve them with a copy of the complaint.

However, we also recognize that in the absence of disclosure for the proper administration of justice, such as requiring the information to prevent the flaunting of the court’s orders, the entry of judgment absent appeal should serve as a proper line of demarcation subsequent to which the attorney should be able to claim the privilege. At that point the action is over.- We are not the only court to recognize such a distinction. See Matter of Jacqueline F., 47 N.Y.2d 215, 417 N.Y.S.2d 884, 391 N.E.2d 967 (1979); Potamkin Cadillac Corp. v. Karmgard, 100 Misc.2d 627, 420 N.Y.S.2d 104 (N.Y.Civ.Ct.1979).

In the present ease we perceive no compelling ground to require disclosure for the proper administration of justice. Accordingly, we reverse the post-judgment order.

HURLEY and DELL, JJ., concur.

      . It is not without significance that this privilege is the oldest of the privileges for confidential communications, its history extending from the reign of Elizabeth I. 8 J. Wigmore, Evidence § 2290 (McNaughton rev., 1961).

      . Florida Rule of Judicial Administration 2.060(d) provides that an attorney may be required by the court to give the address of the party he represents.


author: HURLEY, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. ARVIDA CORPORATION, a Delaware corporation authorized to do business in Florida, National West, Inc., f/k/a National Roofing Company, Inc., et al., Appellees.
    No. 81-984.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      K. P. Jones of Jones & Zaifert, Fort Lauderdale, for appellant.
    William Robert Leonard of Coleman, Leonard & Morrison, Fort Lauderdale, for appellees Nat. West, Inc., Charles E. McGee, Jr., and Elizabeth L. McGee.
   HURLEY, Judge.

Allstate Insurance Company (Allstate) appeals from an order which purports to grant partial summary judgment, but which, in fact, requires Allstate to defend National West, Inc., an Allstate policy holder. Since we conclude that genuine issues of material fact remain for resolution, we are compelled to reverse.

In 1978 Arvida Corporation, a major housing developer, sued its roofing contractor, National West, Inc. Arvida claimed that National West performed defective roofing work at Arvida’s ‘Missionwood’ development. Subsequently, Arvida filed a second amended complaint which named Allstate as a co-defendant of National West. Arvida claimed that Allstate had issued an insurance policy to National West and that the policy provided coverage for the damage alleged in this case.

The next significant pleading was National West’s amended cross-claim against Allstate. Therein, National West claimed that Allstate breached its contract by refusing to defend National West in its suit with Arvida. Therefore, National West sued for damages. Allstate answered and, as an affirmative defense, asserted that National West had not complied with material requirements of the insurance contract. Apparently, this referred to Allstate’s contention that National West had failed to provide timely notice to Allstate and, thus, it was relieved of its duty to defend. Parenthetically, we note that National West never questioned the adequacy of this pleading and both parties have litigated on the assumption that it adequately asserted an affirmative defense.

National West then filed a motion for summary judgment against Allstate. Affidavits were filed in support of, and in opposition to the motion. In what can only be described as a curious order, the trial court held in favor of National West and proceeded to rule that “from the date of this Order hence, Allstate Insurance Company, shall assume the defense of this matter.... ” The court further noted that it had not reached a determination of whether Allstate’s policy provided coverage for the damages claimed by Arvida.

We begin by considering the issue of this court’s jurisdiction. Depending on how one chooses to classify the “partial summary judgment,” it suggests three independent bases for jurisdiction. First, although National West did not plead for specific performance, the order, in fact, requires Allstate to perform on the contract and, thus, the judgment could be construed as a final judgment, appealable under Rule 9.110, Fla.R.App.P. Alternatively, the order could be construed to be a mandatory injunction, appealable under Rule 9.130(a)(3)(B), Fla.R.App.P. Finally, and perhaps the weakest possibility, the order might be construed as one which determines the issue of liability in favor of a party seeking affirmative relief. Rule 9.130(a)(3)(C)(iv). Fla.R.App.P. Under any of these characterizations, we have jurisdiction.

Turning to the merits, the order must be reversed for two reasons. First, it grants a remedy not pled for nor supportable in light of National West’s request for money damages. Second, it violates an elemental rule governing summary judgments. “[T]o obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Bunner v. Florida Coast Bank, 390 So.2d 126, 127 (Fla. 4th DCA 1980); see also Esteban v. Cordoba, 398 So.2d 481 (Fla. 4th DCA 1981). National West did neither. If anything, the supporting and opposing affidavits in this case firmly indicate the existence of genuine issues of material fact regarding timely notice and resulting prejudice. See American Fire & Casualty Co. v. Collura, 163 So.2d 784 (Fla. 2d DCA), cert. denied, 171 So.2d 389 (Fla.1964); State Farm Mutual Automobile Insurance Co. v. Ranson, 121 So.2d 175 (Fla. 2d DCA 1960). Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

LETTS, C.J., and DOWNEY, J., concur.


text:
    Bobbie L. MEARS and Larry E. Mears, Appellants, v. INTERNATIONAL PRECIOUS METALS CORPORATION, Appellee.
    No. 81-1211.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Charles D. Franken, Fort Lauderdale, for appellant.
    R. Lawrence Bonner of Arky, Freed, Stearns, Watson & Greer, Miami, for appel-lee.
   GLICKSTEIN, Judge.

This is an appeal from the trial court’s order denying the nonresident appellants’ motion to quash service for lack of personal jurisdiction. We affirm.

We start with the following premise recited in Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561, 567 (Fla.1975):

A long-arm statute is unconstitutional unless it is interpreted in a manner that requires a showing of minimal contacts sufficient to meet due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The minimum contacts referred to are the minimum contacts of the nonresident defendant to the state wherein the plaintiff brings the action.

The long-arm statute in this case is section 48.181, Florida Statutes (1979), which provides for service on nonresidents who “operate, conduct, engage in, or carry on a business or business venture in the state .... ” In considering whether the nonresident appellants are subject to that statute, the first inquiry is whether the complaint against them alleged a short and plain statement of ultimate facts, pursuant to Florida Rule of Civil Procedure 1.110(b), showing appellee was entitled to relief. In essence, the complaint alleged appellants, pursuant to a written agreement dated June 1, 1979, purchased and sold commodities through and to their broker (appellee) in Florida; that appellee was a Michigan corporation authorized to do business in Florida, with offices at 6451 North Federal Highway in Fort Lauderdale; that, in March of 1980, appellants failed to keep their account above 13% of the market value of all properties in their account as required by their written agreement; and that, as a result of their failure, appellee liquidated the account two months later at a loss to appellee of $35,645.07. We believe the trial judge legitimately could conclude, as a matter of law, that such allegations presented sufficient ultimate facts to come within the above-quoted portion of the long-arm statute. Nevertheless, appellants filed various joined motions that included the motion to quash service for lack of personal jurisdiction.

In support of their motion to quash, appellants filed affidavits in which they recited a number of facts to dispute any contact with Florida; but it is what they fail to allege, rather than what they allege, that we find determinative. The most important omissions are that nowhere do appellants dispute their agreement with appellee nor the critical allegation in the complaint that they purchased commodities through appellee as their broker in this state. Peripherally, they assert that the agreement was executed in the state of their residence (Washington), but neglect to mention that a sentence in the agreement instructed them to return it to appellee’s office in Florida. They state that funds appellee requested went through a New York bank, but they fail to attach (contrary to what they said they did) the written instructions appellants claim they received from appellee. They admit “accepting offers” in Washington from appellee’s agent to buy or sell silver and gold, but decline to say where the agent was located.

Had appellants denied under oath the existence of any agreement and the purchase of commodities through appellee as their broker in Florida, it would have been incumbent upon appellee to produce proof to the contrary by counter-affidavit in accordance with the procedure approved by this court in Elmex Corp. v. Atlantic Federal Savings & Loan Association, 325 So.2d 58 (Fla. 4th DCA 1976). But, just as a nonresident defendant need not come forward with proof to refute allegations in a complaint which are facially insufficient to invoke the long-arm statute, a plaintiff whose complaint is legally sufficient need not come forward with proof thereof in the absence of proof from the nonresident defendants on the critical jurisdictional allegations.

LETTS, C.J., and HERSEY, J., concur.

      . Appellee’s allegations appear quite similar to those this court considered sufficient in Bank of Wessington v. Winters Gov’t Sec. Corp., 361 So.2d 757 (Fla. 4th DCA 1978), and Citizens State Bank v. Winters Gov’t Sec. Corp., 361 So.2d 760 (Fla. 4th DCA 1978).

      . Appellants also assert the legal conclusion— which we choose to disregard — that they did not “operate, conduct or engage in a business or business venture within the State of Florida.”

      . See the Winters decisions, supra note 1. We are aware of a contention in appellants’ reply brief that a federal trial court has entered an order, in another case involving appellee, dismissing a complaint claimed to be similar to the complaint in this case on the grounds that (a) the complaint failed to allege sufficient facts to invoke the long-arm statute and (b) the plaintiff failed to come forward with proof. International Precious Metals Corp. v. Daly, No. 81-6190-CIV-SMA (S.D.Fla. Sept. 15, 1981) (order dismissing complaint with leave to amend). The complaint filed in that court apparently is not part of appellants’ appendix. Assuming its complete identity, however, we adhere to our decision, noting that the federal court dismissed with leave to amend.


text:
    Jeffrey F. BERIN, as Guardian ad Litem of Toni Sue Boyd and Tammy Jo Boyd, Appellant, v. Olva Sue BOYD and Jimmy K. Boyd, Appellees.
    No. 81-1438.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Jeffrey F. Berin, Palm Beach, for appellant. t
    Amy Shield Levine, Boca Raton and James F. Simpson, West Palm Beach, for appellees.
   GLICKSTEIN, Judge.

We have sua sponte considered this matter to be a plenary appeal from the final judgment entered by the trial court; the notice of appeal to be amended so to reflect; and the appendices to serve as the record on appeal.

The final judgment is affirmed as there is substantial, competent evidence to support it. The trial judge found from the evidence that the former husband plainly used the parties’ children as pawns in a scheme to retake from the former wife the real property which he had conveyed to her by having her convey the property to them and almost immediately thereafter having them convey the property to him. Through harassment and intimidation he obtained her name on a quit claim deed to the children who then executed another quit claim deed to the former husband. Although it is the guardian ad litem for two of the parties’ three children who is actively pursuing this appeal, not the former husband, there was no doubt in the trial judge’s mind nor in ours that to characterize the minor children as anything other than the unwitting instrumentalities of their father would put judicial imprimatur upon intolerable conduct and a patently unjust result simply to satisfy a claimed fear of the former husband that his former wife of many years would transfer her property to another man rather than to the parties’ children.

LETTS, C.J., and DELL, J., concur.


author: WALDEN, Judge.

text:
    Wallace MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1509.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

The defendant appeals his convictions on the charges of burglary, kidnapping, sexual battery, and robbery. The amended information charged the appellant with robbery with a “... deadly weapon, to wit: a knife, contrary to ...” Section 812.13(2)(a), Florida Statutes (1979). At his trial the defendant moved for a directed judgment of acquittal as to the robbery with a deadly weapon count.

The defendant asserted there was insufficient proof that he either used or threatened to use the knife in a manner likely to produce death or great bodily harm. The defendant’s motion was denied and he was subsequently convicted of all counts charged and on the robbery conviction the appellant was sentenced to life imprisonment under Section 812.13(2)(a), supra.

The victim's testimony was the only evidence presented by the State regarding the use of a weapon in the course of the robbery. During the State’s direct examination the victim testified:

Q When you arrived at this second location some five minutes later, what happened there?
A He tried to take my stereo out of my car.
Q Did he use anything to assist him in doing that?
A After about two minutes or so of trying to take it out, he tried to get into my trunk. I gave him the keys to my trunk to look for something to get it out, and he didn’t find anything. He went down the street and he came back and he had a knife and he tried to take it out with a knife, but he didn’t.

Furthermore, upon cross-examination the victim gave the following account:

Q When he came back, that’s when he had some kind of knife?
A Right.
Q What kind of knife was that?
Describe it.
A It looked like a kitchen knife, steak knife or something.
Q What did he do with this kitchen or steak knife? What did he do with it, then?
A He tried to take the radio out.
Q How did he do it?
Describe what he did to try to take the radio out.
A He tried to unscrew the screws and cut it out, I guess. I don’t know.
Q He tried to unscrew the screws, cut it out someway, but he still couldn’t pull it out? ...
Q Did he ever threaten you with that knife?
A No.
Q He just used it to jiggle the radio out of the slots it was in?
A Uh-huh.

The trial court gave the following instruction on a deadly weapon:

A deadly weapon is any weapon which, in the manner in which it is used, is likely to produce death or great bodily harm.

We conclude, based upon the foregoing testimony, the evidence was insufficient to prove the instrument used was a deadly weapon and the trial court erred in failing to grant the defendant’s motion for acquittal. See M.M. v. State, 391 So.2d 366 (Fla.1st DCA 1980), cert. denied, 411 So.2d 384 (Fla.1981); McCray v. State, 358 So.2d 615 (Fla.1st DCA 1978). However, the evidence does support the lesser crime of robbery with a weapon under Section 812.-13(2)(b), Florida Statutes (1979). Robbery with a weapon is a felony of the first degree punishable by a maximum term of imprisonment not exceeding 30 years. Therefore, this cause is remanded to the trial court with directions to adjudicate the defendant guilty of robbery with a weapon and to resentence him accordingly. In all other respects, the trial court’s judgment is affirmed.

Affirmed in part, reversed in part and remanded with directions.

LETTS, C.J., and HURLEY, J., concur.

      . A dirk is a prohibited weapon. See § 790.-001(3)(a), Fla.Stat. (1981). A dirk or dagger is defined as “any straight knife to be worn on the person which is capable of inflicting death, except what is commonly known as a ‘pocket knife.’ ‘Dirk’ and ‘dagger,’ are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. Century Dictionary. They may consist of any weapon fitted primarily for stabbing.” People v. Forrest, 67 Cal.2d 478, 62 Cal.Rptr. 766, 432 P.2d 374, 375 (1967), quoting People v. Ruiz, 88 Cal.App. 502, 504, 263 P. 836, 837 (1928). “[T]he test of a ‘dirk or dagger’ is its capability for use as a stabbing weapon.” Bills v. Superior Court, 86 Cal.App.3d 855, 150 Cal.Rptr. 582, 584 (1978) (applying Forrest’s “primarily designed test” and concluding that a pair of barber scissors is not designed primarily for stabbing and, thus, is not a dirk or dagger). See also, People v. Ferguson, 7 Cal.App.3d 13, 86 Cal.Rptr. 383 (1970) (affirming the jury’s finding that an ordinary kitchen knife with a wooden handle and an eight inch steel blade with a point and one cutting edge is a dirk or dagger).


text:
    Eva M. DESHAMBO, Appellant, v. Jeanette BARATZ, Appellee.
    No. 81-1661.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Gordon C. Brydger of Brydger & Levitt, P.A., Sunrise, for appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

This is an appeal from a final judgment on the issue of undue influence in a suit to set aside certain inter vivos transfers of assets. The action was brought on behalf of the estate of the deceased donor. We are considerably hampered in our efforts by the absence of a brief from appellee. We have reviewed appellant’s brief and the record on appeal and conclude that the trial court erred. The evidence showed the existence of a confidential relationship and active procurement resulting in financial gain on the part of appellee. The appellee offered no reasonable explanation for her conduct before the trial court and was further unable to explain how the assets transferred to her had been dissipated. Under the circumstances of this case we conclude that a presumption of undue influence arose in accordance with the principles enunciated initially in the case of In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), as extended by the rationale of Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975) and Pate v. Mellen, 275 So.2d 562 (Fla. 1st DCA 1973). We conclude that the trial court did not properly apply this presumption and therefore vacate the final judgment and remand for further proceedings which may, in the discretion of the trial court, include the taking of further evidence.

REVERSED AND REMANDED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    Albert Paul KRUEGER, II, Appellant, v. W. Wolf BAUER and City of Stuart, Florida, a Florida municipal corporation, Appellees.
    No. 81-1905.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Edna L. Caruso, West Palm Beach, and Steven L. Perry, Stuart, for appellant.
    Carl F. Ellwanger, Stuart, for appellee Bauer.
    Stephen B. Calvert, City Atty., Stuart, for appellee City of Stuart.
   PER CURIAM.

The Grantee under a warranty deed brought suit against the City of Stuart to quiet his title to a certain piece of property. He also sued his grantor for breach of warranty should the quiet title suit be unsuccessful. At issue was a parcel on a subdivision plat marked “parking.” The City of Stuart counterclaimed for quiet title and declaratory judgment.

We affirm the judgment quieting title in favor of the City since we find no meaningful distinction between this case and the case of Laube v. City of Stuart, 107 So.2d 757 (Fla. 2d DCA 1958), in which, on substantially similar facts, the court determined that an unmarked parcel on a similar plat, another portion of the same subdivision, was intended by the developer to be a part of the plat dedicated for roads and streets. The trial court’s finding of acceptance of dedication by general public user prior to revocation is supported by substantial competent evidence.

We also affirm that part of the judgment finding in favor of the grantee on the issue of liability of the grantor for breach of warranty and reserving for a separate hearing the issue of damages. However, we do not decide the proper measure of damages to be awarded to the grantee since that issue is not properly before us at this time.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ„ and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


author: GLICKSTEIN, Judge. LETTS, C.J.,

text:
    Lucille WEASEL, Appellant, v. George E. WEASEL, Jr., Appellee.
    No. 81-1906.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Robert S. Levy, West Palm Beach, for appellant.
    Michael J. Ferris of Beverly & Freeman, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The trial court denied appellant’s motion for temporary relief, suit money and attorney’s fees. We reverse and remand on the authority of Belcher v. Belcher, 271 So.2d 7, 10 (Fla.1972), which held with respect to the issue of “adequate care” in determining temporary alimony:

The measure of adequate care is the historical need of the wife, ability of the
husband to pay and their standard of living (footnote omitted).

See also Vickers v. Vickers, 413 So.2d 788 (Fla. 3d DCA 1982).

Unfortunately, the trial judge never gave due consideration to the standard of living to which appellant was accustomed and short circuited the testimonial portion of the hearing before appellant was able to present all of her evidence upon the issue of temporary alimony or any evidence upon the issue of temporary attorney’s fees and suit money. He informed the parties that he had not reviewed appellant’s financial affidavit, referred to her “petition” as a waste of time, and remarked that there were other people with real problems waiting to be heard.

Appellant’s wealth was apparently the cause of her demise in the trial court, as her financial affidavit reflected assets in excess of $2,000,000, notwithstanding allusions to her husband’s excessive wealth in comparison. We use the word “allusions” because the trial judge stopped the testimony before there was any evidence of appellee’s wealth. Appellee neither filed a financial affidavit nor appeared at the hearing. His counsel informed the trial court that his client was financially able to provide support. The trial judge suddenly halted the testimony, apparently convinced that if appellant desired to maintain the standard of living set for her by appellee, she could sell her capital assets. The evidence in the brief testimonial portion of the transcript indicates appellant’s cash was less than $15,000 but her monthly expenses were in excess of $33,000. The trial judge appeared to equate bonds with the term “liquid assets,” indicating his reliance upon Grace v. Grace, 162 So.2d 314 (Fla. 1st DCA 1964). As the liquid assets in Grace were bank accounts and not securities, we are hard pressed to see how the trial court determined Grace to be authority for the proposition that securities were liquid assets.

While appellant’s apparent life style may be overwhelming to most people, she was entitled to her day in court, and it was denied her. Accordingly, we reverse the trial court’s order and remand the cause with directions to order such amount of temporary alimony, nunc pro tune July 1, 1981, as the application of Belcher and Vickers to the relevant facts herein require and to award temporary attorney’s fees as requested on appeal and suit money in a reasonable amount as the testimony taken establishes.

DELL, J., concurs.

LETTS, C.J.,

concurs in conclusion only as to the opinion and dissents as to the award by this court of attorneys fees in response to appellant’s motion for same.


text:
    Lloyd C. McDOWELL, Appellant, v. TRAILER RANCH, INC., a Florida corporation, Angelo Domenick, and Lucinda Guinta, Appellees.
    No. 81-1970.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    George E. Gleason of Sullivan, Ranaghan, Bailey & Gleason, P.A., Pompano Beach, for appellant.
    Robert W. Sidweber of Toothaker & Sid-weber, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

Appellant and two other parties — neither of whom is his wife — own a parcel of real property in Broward County as joint tenants with right of survivorship. Appellees obtained a judgment against appellant for $50,000 as punitive damages, which was not superceded, and sought execution on appellant’s interest in the property. When the Sheriff of Broward County requested a court order before acting upon appellee’s writ of execution, appellee obtained an order which authorized and directed the sheriff to proceed with execution. It is that post-judgment order which appellant seeks to reverse.

There is simply no merit to appellant’s position that his interest is not subject to execution. While there is no case in Florida directly on point, a plethora of authority throughout the country exists in support of our conclusion. Accordingly, we affirm.

DOWNEY and HURLEY, JJ., concur.

      . The judgment for punitive damages was subsequently affirmed by this court. McDowell v. Guinta, 421 So.2d 810 (Fla. 4th DCA 1982).

      . See 12 Fla.Jur.2d Cotenancy and Partition § 8 (1979):
      A joint tenancy may also be severed involuntarily, as by an execution sale of any interest that is subject thereto....
      4 Thompson, Real Property § 1780 (1979 Replacement) cites authority from Alabama, Georgia, Illinois, Indiana, Kentucky, Michigan, Minnesota, North Carolina and Vermont for the following principle:
      The individual interest of one joint tenant is subject to levy and sale upon execution against him.
      In a thoughtful opinion, Jamestown Terminal Elevator, Inc. v. Knopp, 246 N.W.2d 612, 614 (N.D.1976), the court said:
      Severance of a joint tenancy interest in real property may be accomplished by partition.
        In Re Larendon’s Estate, 439 Pa. 535, 266 A.2d 763, 42 A.L.R.3d 1107 (1970); Underwood v. Otwell, 269 N.C. 571, 153 S.E.2d 40 (1967). Severance may be accomplished also by alienation. Schimke v. Karlstad, 87 S.D. 349, 208 N.W.2d 710 (1973); Keokuk Savings Bank & Trust Co. v. Desvaux, 259 Iowa 387, 143 N.W.2d 296 (1966). Sale under execution upon a judgment lien will likewise sever the joint tenancy. Frederick v. Shorman, 259 Iowa 1050, 147 N.W.2d 478 (1966); In Re King’s Estate, 261 Wis. 266, 52 N.W.2d 885 (1952); Rauer’s Collection Co. v. Higgins, 87 Cal.App.2d 248, 196 P.2d 803 (1948).
      20 Am.Jur.2d, Cotenancy and Joint Ownership § 21 (1965) recites:
      [I]t is generally true that a sale under execution of a joint tenant’s interest in joint property operates as a severance of the joint tenancy.
      (Footnote omitted.) See also 33 C.J.S. Executions § 101 (1942).


text:
    In re The Estate of Jane Greer Kelly BROWN, deceased. SHELBY COMPANY LIMITED, Appellant, v. Wilson SMITH, Esq., as Successor Personal Representative of the Estate of Jane Greer Kelly Brown, Appellee.
    No. 81-2130.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Robert L. Beals of DiGiulian, Spellacy & DiChiara, Fort Lauderdale, for appellant.
    Arthur J. England, Jr., of Steel, Hector & Davis, Miami, for appellee.
   WALDEN, Judge.

Shelby Company Limited (“Shelby”) filed a claim in the Estate of Jane Greer Kelly Brown (“Estate”), which Estate was being administered in Florida. The trial court, upon Petition of the Successor Personal Representative, struck the claim. Shelby appeals. We reverse.

History. Shelby’s assignor, H. Brent Kelly, filed a counterclaim in a Bermuda lawsuit that the decedent, Jane Greer Kelly Brown, had initiated. Thereafter, Shelby filed a timely claim here in the Estate based on “that certain counterclaim filed by H. Brent Kelly against Jane Greer Kelly in the Supreme Court of Bermuda, Case No. 1997 n.o. 184.” The claim in the Estate was in excess of $150,000.00 and was described as being contingent upon “a finding of liability and proof of damages in [the Bermuda lawsuit].” Jane Greer Kelly Brown died on September 5, 1980, and Joseph Brown, as personal representative, substituted for the decedent in the Bermuda law suit. H. Brent Kelly obtained a default judgment on his counterclaim in Bermuda. In April 1981, Joseph Brown, personal representative, sought to have the judgment set aside.

Without particular detail, an objection was filed in the Estate to Shelby’s claim. Certain stipulations were made and on October 5, 1981, the successor personal representative, moved to strike Shelby’s claim, saying:

“1. Shelby Company Limited filed a Statement of Claim in this estate, which Claim was objected to by the Successor Personal Representative.

2. The Successor Personal Representative entered into a Stipulation with the attorneys of record for Shelby Company Limited, a copy of which is attached hereto as Exhibit A, which extended the time for Shelby Company Limited to bring an independent action on its Claim until 30 days after receipt of notice in writing from the Successor Personal Representative.

3. The Successor Personal Representative has served the written notice as provided in the Stipulation on Shelby Company Limited, stating that an action to enforce its Claim against the estate must be commenced within 30 days, which notice was received by the Shelby Company Limited attorneys of record on July 27, 1981. A copy of the written notice, together with proof of delivery, is attached hereto as Exhibit B.

4. More than 30 days have elapsed since delivery of the written notice, but no action has been taken to enforce the Claim of Shelby Company Limited and the Claim is, therefore, barred by Section 733.705 of the Florida Statutes.”

The recitals were accurate and the trial court struck the claim upon the basis that Shelby had not met the requirements of Section 733.705(3), Florida Statutes (1980) (which provides a cut off date for filing an independent action on a claim after objection) or the extension of time provided by stipulation. This appeal ensued.

Because of the pendency of the Bermuda litigation, this being a jurisdiction chosen by the decedent and acquiesced in by her personal representative when he voluntarily substituted himself, we are of the opinion that it was unnecessary for Shelby to file an independent action in Florida as concerns the Estate. The Bermuda action was the equivalent of such procedure. Cloer v. Shawver, 177 So.2d 691 (Fla. 1st DCA 1965); Kornblum v. Heflin, 183 So.2d 843 (Fla. 2d DCA 1966), cert. denied, 189 So.2d 632 (Fla.1966), and Brown v. Wood, 202 So.2d 125 at 128 (Fla. 2d DCA 1967).

We believe that the rationale and purpose of Section 733.705, Florida Statutes (1980) is to uncover and resolve or bar all pending claims against an Estate so that the administration can be processed expeditiously to the end that assets may be marshalled, proper creditors paid, and distribution made. In cases such as this where litigation of the matter forming the basis of the claim is pending with the personal representative voluntarily participating, it is obvious that the existence of the claim is known and objected to, and that it is already in the process of judicial determination. It would be duplicitous and serve no useful purpose to require the claimant to again make known his claim and file a second independent action. Such a step would in nowise aid the administration. It would only create needless expense to those involved plus an added burden to the courts.

The Estate attempts to distinguish the Cloer and Kornblum cases. It agrees that an action properly filed in the courts of a sister state can be the predicate for and serve as the equivalent of “an independent action” under the statute. However, it is the Estate’s position that litigation in a foreign place such as Bermuda may not form such predicate because a Bermuda judgment might not have the same stature as that of a sister state. This may be true. Regardless, we reject the notion that the difference is controlling. The Estate can hardly be heard to say that Bermuda is an ineffective forum when the decedent selected it and energized its judicial machinery against Shelby’s assignor, and where the personal representative voluntarily entered the suit and took up the cudgels on behalf of the Estate. Moreover, a Bermuda judgment is valid here under the principles of comity (even assuming the Estate is not barred from raising objections to the judgment by its participation there under the principles of waiver or estoppel) if the Bermuda court had jurisdiction and the judgment resulted from procedures which would render it valid had it been litigated in this Court. Ogden v. Ogden, 159 Fla. 604, 33 So.2d 870 (1948).

Finally, the Estate says that Shelby was absolutely obligated by the terms of the stipulation to file an independent action here in Florida or, failing to do so, suffer dismissal of its claim. We disagree.

The stipulation did not mention the Bermuda action or evince any notion of its abandonment and the election of Florida as the sole forum. Indeed, it would be impossible for Shelby to disengage in Bermuda without default or prejudice. The Bermuda claim was still undecided and unliquidated. Thus, even if Shelby filed the action here in Florida, it would probably have to lie dormant pending the ripening and disposition in Bermuda since the claim here depends upon the outcome there. Again, as we see it, Shelby had the option of paralleling the Bermuda suit by filing an action here. However, it was not required to do so and, under the circumstances, could elect not to proceed further here in Florida. We fail to see where the Estate has been in anywise prejudiced by the disinclination of Shelby to pursue the action here, but to the contrary.

We reverse and remand with instructions to reinstate Shelby’s claim.

REVERSED and REMANDED.

LETTS, C.J., and ANSTEAD, J., concur.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    STATE of Florida, Appellant, v. Donald Howard REED, Appellee.
    No. 81-2158.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   HERSEY, Judge.

The state appeals from an order granting a defense motion to suppress a confession in a sexual battery case. We reverse.

The defense filed two motions on October 13, 1981: a motion to compel examination of the scene and a motion to suppress. At the hearing on November 9, 1981 the trial court called both motions to be heard. Apparently the state had not anticipated that the motion to suppress was to be heard at that time. The witnesses were unavailable and the state was otherwise unprepared to sustain its affirmative burden of showing that the confession had been made voluntarily. The state requested a continuance representing to the court that defense counsel had agreed to have a hearing on the motion immediately before trial which was scheduled for the following week. The trial court refused to continue the hearing and, when the state was unable to produce its witnesses, granted the motion to suppress.

The record indicates that the complaining witness had been less than cooperative. It is understandable that the trial court wanted to move his docket along and perhaps became a little more impatient with the situation than he otherwise might have.

The presumption of correctness ordinarily attributed to the findings of the trial court does not apply here because there were no findings of fact. Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975); Herzog v. Herzog, 346 So.2d 56 (Fla.1977). This case involves an exercise of discretion and the issue is whether there was an abuse of that discretion.

‘Judicial discretion’ does not imply that a court may act, or fail to act, according to the mere whim or caprice of the presiding judge, but it means a discretion exercised within the limits of the applicable principles of law and equity, and the exercise of which, if clearly arbitrary, unreasonable, or unjust, when tested in the light of such principles, amounting to an abuse of such discretion, may be set aside on appeal. This is ‘a government of laws and not of men.’

Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247 (1930). And see Matire v. State, 232 So.2d 209 (Fla. 4th DCA 1970).

It is always easier to assess a course of action in retrospect and at leisure rather than during the fray, and we therefore do not fault the trial court for responding to the situation in a manner designed to remedy delay. A motion for the suppression of a confession, however, is an extremely important matter having severe repercussions to the losing party, whether the state or the accused. For that reason it is imperative that both sides be given fair opportunity to be heard. Only where prejudice will result to the accused should simple neglect or attorney error be sanctioned with the extreme remedy of granting a motion to suppress a confession. No such prejudice appears on this record; accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I would sustain the trial court’s ruling since the record reflects that the hearing on the motion to suppress had been scheduled for several weeks and the state had been on notice of the hearing for that same period of time. In essence, we are reversing the trial court’s decision to deny the state’s request for a continuance of the hearing and I do not believe there is any basis in the record for concluding that this constituted an abuse of discretion.


text:
    FIRST FEDERAL SAVINGS OF the PALM BEACHES, Appellant, v. Michael C. COOPER and Marcia D. Cooper, his wife; and David C. Finnerty and Ellen R. Finnerty, his wife, Appellees.
    No. 81-2204.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    J. Robert Olian of Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellant.
    Gary J. Nagle of Scott, Royce, Harris & Bryan, P.A., Palm Beach, for appellee.
   PER CURIAM.

We reverse the final order of dismissal upon the authority of Fidelity Federal Savings and Loan Association v. de la Cuesta, - U.S.-, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

Accordingly, we reverse and remand for further proceedings consistent with de la Cuesta.

HURLEY and WALDEN, JJ., and OWEN, WILLIAM C. Jr., (Retired) Associate Judge, concur.


author: BERANEK, Judge.

text:
    Francis J. McCARTHY, as Administrator of the Estate of Michael McCarthy, deceased, and on behalf of Francis J. McCarthy and Marie Eve McCarthy, parents of Michael McCarthy, a minor child, Appellants, v. DANNY’S WEST, INC., a Florida corporation, and Illinois Insurance Company of Wausau, a company licensed to do business in the State of Florida, Appellees.
    No. 81-2267.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Timothy J. Hmielewski of Stover, Stoker, Medlin & Hmielewski, P.A., Fort Lauder-dale, for appellants.
    Charles T. Kessler of Pyszka & Kessler, P.A., Fort Lauderdale, for appellees.
   BERANEK, Judge.

Plaintiff appeals from a summary judgment in favor of defendant in a wrongful death action. Plaintiff is the administrator of the Estate of his deceased son. The minor son, Michael McCarthy, age 17, entered the defendant’s bar, was served liquor, became intoxicated, and died later that evening in a one car accident which occurred while he was driving his automobile in an intoxicated state. While in the bar, Michael was accompanied by a 30-year old adult. Michael was not checked for identification at any time. The trial court entered summary judgment for the defendant, apparently on the theory that the accident was unforeseeable. This finding was based on two facts — that the accident happened approximately three and one-half hours after the minor left the bar, and that the minor was in the company of an adult while in the bar. We conclude that factual issues remain which barred summary judgment.

Initially, we find that the three and one-half hour interval is not so long as to break the alleged chain of causation as a matter of law. At least, conflicting inferences remained as to proximate cause and foreseeability. Defendant also contends that Michael McCarthy was accompanied by an adult on the evening in question and that the bar had the right to assume that the adult would take care of the minor to the extent of not letting the intoxicated minor drive an automobile. Defendant relies upon Rio v. Minton, 291 So.2d 214 (Fla. 2d DCA 1974), for this position. We reject this argument. If the bar operator knew Michael McCarthy was a minor and sold him liquor to the extent of intoxication based upon the assumption that an adult accompanying him would prohibit him from driving, then we conclude that such conduct would be a basis for liability against the bar. The bar’s pleadings do not expressly admit the knowledge of McCarthy’s status as a minor, but its arguments under the Rio case presume such knowledge. We choose not to approve a policy which would protect a bar from liability for the intentional sale of liquor to a known minor who happens to be accompanied by an adult.

Appellant urges liability under Section 562.11, Florida Statutes (1979) and Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). Appellee urges that the case is controlled by Section 768.125, Florida Statutes (1981). These questions have yet to be considered by the trial court due to the erroneous finding re foreseeability based on the defendant’s defensive position and reliance on the Rio case. See Migliore v. Crown Liquors of Broward Inc., (Fla. 4th DCA Case No. 81-883, opinion filed October 6, 1982). We thus do not rule on the application of either statute.

We conclude that factual issues remain at least as to whether the bar was on notice that the minor was likely to be driving an automobile. We, therefore, reverse the summary judgment and remand for further proceedings.

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


author: ANSTEAD, Judge.

text:
    C. Thomas CHARNOCK, Appellant, v. John C. DIELEMAN, Appellee.
    No. 81-2275.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    John W. Bellamy, West Palm Beach, for appellant.
    Willard C. Wheeler, Jr., Jupiter, for ap-pellee.
   ANSTEAD, Judge.

This is an appeal from a final judgment granting foreclosure of a purchase money mortgage. We affirm.

On March 1,1978, the appellant, C. Thomas Charnock, executed a promissory note in favor of the appellee, John C. Dieleman, in the amount of $35,000.00 plus interest. This note was secured by a purchase money mortgage. The terms of the note provide that the mortgagor “shall have the right to prepay all or part of the principal at any time or times with interest to date of payment without penalty,” and that “[t]he principal... together with interest, shall be payable [in] five annual installments of $7,000.00 PLUS accrued interest... [commencing] one year from date of execution of the note and continuing on said date each year thereafter until fully paid.”

Six months before the first payment was due Charnock made a prepayment of $24,-999.75 in principal plus $1,572.60 in interest. However, for two years thereafter Char-nock failed to pay the projected annual installments. Thereafter, John C. Diele-man, the mortgagee and holder of the note, filed a mortgage foreclosure action, asserting a right to accelerate payment of the balance as a result of the mortgagor's failure to make the required periodic payments. Charnock claimed that no periodic payments were due under the provisions of the note since his prepayment exceeded the amount that was due under the first two periodic payments. The trial court rejected this defense and entered a final judgment of foreclosure in favor of Dieleman.

Charnock contends that the final judgment effectively enforces a prepayment penalty contrary to the provisions of the instrument. We cannot agree. To construe the prepayment provision as constituting a penalty unless it is applied to the required periodic payments would, in our view, render meaningless the provision establishing Chamock’s “continuing” obligation to pay annual installments until the entire amount due was “fully paid.” We believe the trial court acted correctly in construing the prepayment provision as meaning merely that any prepayment of monies due would not, contrary to the possible practice in such situations, require appellant to pay any additional interest or otherwise incur an obligation to pay a penalty for the right to pay the principal amount due in advance of the schedule provided in the note. Charnock incurred no such penalty as a result of his prepayment, and indeed derived the benefit of reducing the amount of interest due on the outstanding principal. It was only after he twice failed to honor his “continuing” obligation to pay annual installments until the entire amount due was “fully paid” that the trial court found him in default. We do not believe that the trial court erred in ruling that the prepayment provision was not designed to permit him to avoid the obligation to make periodic payments until the obligation was paid in full. Zerkel v. Lindsey, 270 Or. 517, 528 P.2d 1041 (1974); Smith v. Renz, 122 Cal.App.2d 535, 265 P.2d 160 (1954).

We acknowledge that our decision appears at first glance to conflict with the decision of the Second District Court of Appeal in Gulf Life Ins. Co. v. Pringle, 216 So.2d 468 (Fla. 2d DCA 1968). However, we do not find Pringle persuasive on the facts involved herein. See generally Guynn v. Brentmoore Farms, Inc., 253 So.2d 136 (Fla. 1st DCA 1971). The Pringle case is distinguishable on the facts because the stated amount of the periodic payments involved therein included principal and interest. Here the stated amount of the periodic payments, $7,000.00, was solely for principal. An additional periodic payment of interest was also to be paid, the amount of which would vary depending on the balance due on the principal. There was also a limited provision for prepayment in the Pringle note, and apparently the prepayments actually made were not made in accord with those provisions. On these facts the trial court found, as a matter of fact, that the prepayments made were actually advance payments of the periodic payments. Here, the advance payment was made in compliance with the terms of the note and the trial court has concluded that this payment was not an advance payment of the obligation to make periodic payments of principal and interest.

Accordingly, for the reasons set out above, we affirm the judgment of the trial court.

LETTS, C.J., and HERSEY, J., concur.


author: DOWNEY, Judge.

text:
    STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Gary A. GLASS and Leora Glass, his wife, Appellees.
    Nos. 81-2312, 82-86.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Gordon B. Linn of Gunther, Grimmett & Whitaker, Fort Lauderdale, for appellant.
    Henry Laffer, Sunrise, for appellees.
   DOWNEY, Judge.

State Farm Fire & Casualty Company seeks reversal of two judgments entered in favor of appellees, Gary and Leora Glass. The first judgment dismissed appellant’s counterclaim. The second judgment granted appellees a summary judgment and directed the parties to proceed to arbitration. The litigation was commenced by the Glasses’ filing a complaint to compel arbitration pursuant to the terms of their automobile insurance policy issued by appellant. The complaint alleged that the Glasses had sustained injuries and damages as a result of the negligence of an uninsured motorist, and that a claim had been submitted to appellant and denied. It was further alleged that the Glasses had then demanded arbitration and that, too, had been declined. Accordingly, the Glasses prayed for an order requiring appellant to arbitrate. Appellant answered generally denying the allegations of the complaint and contending that it is not required to arbitrate because uninsured motorist coverage does not exist under the circumstances of this case since the accident in question did not arise out of the operation, maintenance or use of an uninsured motor vehicle. Appellant also filed a counterclaim for declaratory relief, in which it requested the court to declare that the Glasses did not have uninsured motorist coverage under the circumstances of this case. The trial court issued an order on November 13, 1981, dismissing the counterclaim and granted a motion for summary judgment on December 22, 1981, directing the parties to proceed to arbitration. Those judgments are the subject of these consolidated appeals.

The existence of insurance coverage is a question for the court, not one for arbitration. As the court stated in Vigilant Insurance Company v. Kelps, 372 So.2d 207 (Fla. 3rd DCA 1979):

It is well-settled that issues concerning the existence of uninsured motorist coverage may be determined only by the court, and, conversely, may not be a subject of the arbitration proceedings commonly provided for in such policies. Aetna Casualty and Surety Co. v. Goldman, 346 So.2d 111 (Fla. 3d DCA 1977); Government Employees Ins. Co. v. Mirth, 333 So.2d 545 (Fla. 3d DCA 1976); Zeagler v. Commercial Union Ins. Co. of New York, 166 So.2d 616 (Fla. 3d DCA 1964); Cruger v. Allstate Ins. Co., 162 So.2d 690 (Fla. 3d DCA 1964), writ disch. 172 So.2d 450 (Fla.1965). It is just as clear that no UM coverage exists if the offending motorist is not actually un- or underinsured. Hayston v. Allstate Ins. Co., 290 So.2d 67 (Fla. 3d DCA 1974); Green v. United States Fidelity and Guaranty Co., 181 So.2d 198, 199 (Fla. 3d DCA 1965) (“It is essential to coverage under the policy that the status of the motorist, as to uninsured or insured, be established.”) To complete the syllogism, it therefore follows that the court, and not the arbitrators, must determine the insurance status of the allegedly negligent driver (or parker) of the vehicle in question. Government Employees Ins. Co. v. Mirth, supra, squarely so holds.

372 So.2d 207, at 208.

See also: Hartford Accident & Indemnity Company v. Classie, 396 So.2d 1204 (Fla. 3rd DCA 1981). Appellees rely heavily upon the case of Ebens v. State Farm Mutual Automobile Insurance Company, 278 So.2d 674 (Fla. 3rd DCA 1973). However, as the same court stated in Vigilant, supra, its prior decision in Ebens, supra, merely held that issues of liability of an admittedly uninsured motorist were for the arbitrators to decide. Concededly, there is some confusion in the cases, probably caused by the use of the terms “liability” and “coverage.” We understand the law to be that, after the court has determined that the insured’s uninsured motorist policy is applicable to the case at hand, the arbitrators then determine the liability of the carrier, i.e., how much, if anything, the carrier must pay for the insured’s alleged damages.

Given the foregoing, the trial court erred in dismissing appellant’s counterclaim and in ordering the parties to arbitrate. The counterclaim poses a serious question as to whether the Glasses’ policy covers the factual situation surrounding the accident. That question should first be determined by the court and, if the coverage applies, then the court should refer the parties to arbitration.

The two judgments under review are reversed and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

LETTS, C.J., and WALDEN, J., concur.


text:
    STATE of Florida, Appellant, v. Prentiss BRELAND, Appellee.
    No. 81-2314.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    P.D. Aiken, Fort Lauderdale, for appel-lee.
   HURLEY, Judge.

The trial court found that a predecessor judge had engaged in overreaching by provoking the defendant’s motion for mistrial. The successor judge ruled that retrial was barred by the Double Jeopardy Clause and, therefore, granted the defendant’s motion to dismiss. We conclude that the finding of judicial overreaching is not supported by the record and, consequently,' we reverse.

The defendant was arrested and charged with trafficking in marijuana and possession of phenobarbital with intent to sell. He was fingerprinted as part of the booking process. Subsequently, he filed a motion to suppress tangible evidence. Therein, he alleged that the warrantless arrest was improper and that a subsequent search of an airplane (with a warrant) was likewise illegal. After an evidentiary hearing, the trial court granted the motion, in part, by ruling “that the Defendant’s Motion to Suppress the Physical Evidence of those items obtained from a search of the person of the Defendant and his baggage, is hereby granted.” The court, however, refused to suppress evidence found in the airplane. The state did not appeal the suppression order.

At trial, a controversy developed over whether the defendant’s fingerprints, taken during the booking process, had been suppressed. Defense counsel argued that they had been suppressed because his motion requested the suppression of all physical evidence derived as a result of the illegal arrest. Counsel for the state, however, contended that the post-arrest fingerprints had not been suppressed because the motion did not specify fingerprints as an item sought to be suppressed. Also, the prosecutor noted that defense counsel had failed to mention fingerprints when asked for an oral clarification at the outset of the suppression hearing. After extensive argument, to which we shall subsequently refer, the trial court ruled that the post-arrest fingerprints had not been raised by the defendant’s motion and, therefore, were not covered by the suppression order. Furthermore, in the exercise of its discretion, the court declined to permit an in-trial suppression hearing. However, the court did indicate that if requested by the defendant, it would grant a mistrial and thereafter grant an amended motion to suppress. Thereupon, defense counsel requested and received a mistrial.

Prior to retrial, the defendant moved to have the trial judge disqualify herself because of certain statements made during the discussion preceeding the motion for mistrial. Pursuant to Rule 3.230, Fla.R. Crim.P., the court disqualified itself and a successor judge was appointed. Next, the defendant filed a motion to dismiss on the ground that retrial was barred by the Double Jeopardy Clause. Defendant argued that he had been forced to move for a mistrial because of judicial overreaching and, therefore, could not be retried. The successor judge agreed and granted the motion. The state brought this appeal.

The general principles applicable to this case were set forth in Bell v. State, 413 So.2d 1292 (Fla. 5th DCA 1982).

Double jeopardy generally is not a defense to a subsequent prosecution when a mistrial had been granted in the original trial upon the defendant’s motion or with his consent or where the circumstances clearly required the mistrial in the interest of justice. However, double jeopardy will bar a second prosecution when the mistrial resulted from judicial or prosecu-torial overreaching.
Mere error by the judge or prosecutor resulting in the defendant’s request for mistrial is not sufficient to bar reprosecution. The double jeopardy clause protects a defendant against governmental actions intended to provoke a mistrial. It bars retrials where bad faith conduct by the judge or prosecutor goads the defendant to request a mistrial.

Id. at 1294 (citations omitted). Recently, the United States Supreme Court held that “the circumstances under which ... a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for mistrial was intended to provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, - U.S. -, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982). Similarly, the Wisconsin Supreme Court concluded that a finding of overreaching depends more on the motivation behind the conduct in question, than on the egregiousness of the conduct itself. State v. Copening, 101 Wis.2d 700, 303 N.W.2d 821 (1981). Thus, the court offered this definition of overreaching:

The culpable intent to deprive the defendant of a complete trial in the first tribunal for the purpose of avoiding an acquittal and to gain the opportunity to have a second and better opportunity to convict or for the malicious purpose of harassment in or by the second trial.

Id. 303 N.W.2d at 833.

In the case at bar, the defendant claimed that the first trial judge declined to permit an in-trial suppression hearing because of a manipulative motivation. In his renewed motion to dismiss, the defendant made the following allegation:

[The Judge], confronted with a situation where the Defendant was about to be acquitted, suggested, provoked, enticed and pressured the Defendant into moving for a mistrial. The actions of [the Judge] were in bad faith and calculated to give the State additional time and a second trial (now pending before this Court) at which new fingerprints could be introduced.

As indicated, the successor judge reviewed the transcript of the first trial and granted the motion to dismiss, impliedly finding impermissible overreaching by the predecessor judge.

To understand and evaluate this finding, we must detail a portion of the first trial. We begin at the point where the state attempted to introduce the defendant’s post-arrest fingerprints into evidence. Defense counsel objected on the ground that they had been suppressed. The prosecutor disagreed. He noted that the post-arrest fingerprints had not been listed in the defendant’s written motion and that defense counsel had failed to mention them when asked for an oral clarification at the outset of the hearing. The prosecutor said that he had been prepared to argue against the fingerprints’ suppression, but, in light of their omission by the defense, he decided it was unnecessary. The prosecutor further argued that even if the prints had been suppressed, he would have been entitled to have the defendant refingerprinted pursuant to Rule 3.220(b)(iii), Fla.R.Crim.P. Alternatively, he said that if he had been on notice of the defendant’s position, he would have tried to obtain a second set of prints from an independent source such as the FBI or the military.

In response, defense counsel noted that the court’s order expressly suppressed those items obtained from a search of the defendant. Since the fingerprints were obtained from the defendant after an illegal arrest, defense counsel argued that they were obviously covered by the order’s language. To buttress his position, defense counsel cited the United States Supreme Court’s holding in Davis v. Mississippi. Furthermore, he argued that due to the illegality of the arrest, the state was precluded from utilizing Rule 3.220(b)(iii) to have the defendant refingerprinted. Finally, he argued that due to the illegality of the arrest, the state was precluded from using any information gained from the arrest, e.g., the defendant’s name and address, to obtain fingerprints from an independent source.

At this point, the court said, “So, where does this put us, because I mean, I really don't see that I have much choice here considering the language in this case, Davis v. Mississippi and this Roosky (phonetic) v. State, that I read.” The prosecutor then asked for an early luncheon recess so that he might do some research and respond to the cases cited by the defense. Before granting the request for an early recess, the court restated the legal issue and said to the prosecutor, “Let’s assume that you would not have been able to get them from anyplace else. Believe me, I desperately want to help your end because I know the results of this situation, but I feel stuck.” A few moments later, alluding to defense counsel’s view of the controlling law, the court said, “Well, it’s influencing the Court’s decision to the extent that I intend to give them every opportunity to let them win.” Thereupon, the court recessed for lunch.

When the argument resumed, the prosecutor offered his recollection of what had transpired at the pre-trial suppression hearing. The court observed, “I remember all of that. I understand and I remember everything you have said. The only thing is, I wasn’t aware at the time that everybody was playing games. I mean, you [the prosecutor] are playing games, hoping to get to this point and you [defense counsel] are playing games hoping he wouldn’t get to this point.” Later, the court expanded on its perception of what had occurred. It said, “I am yelling at both of you. He [defense counsel] should have said: T want to suppress fingerprints.’ You [the prosecutor] should have said: ‘Does that include the fingerprints?’ And we could have ruled on it and everything.” In the same vein, the court said, “The funny thing is I believe that both of you did the wrong thing, I really do. I think we should cut out this baloney and let the chips fall wherever they are going to fall. The problem is no matter how I rule, I end up rewarding one of you for being a little bit [dis]honest with the Court.”

As the argument progressed, the court began to center its attention on Rule 3.190(h), Fla.R.Crim.P. Ultimately, the court concluded that the motion to suppress, as initially drafted and later clarified, did not encompass the post-arrest fingerprints. The court reasoned that the rule’s requirement of particularity demanded something more precise than a request to suppress all evidence. Therefore, the court limited the applicability of its suppression order to those items which had been orally specified by defense counsel at the suppression hearing. Furthermore, after assessing the state’s contention of prejudice, the court denied a defense motion to conduct an in-trial suppression hearing. The court explained: “I don’t think it’s proper for me to encourage everybody to file particle [sic] motions to suppress. We either should hear the motion to suppress or we shouldn’t hear the motion to suppress.”

Finally, the court inquired, “Can I grant a mistrial?” When informed that jeopardy would attach unless the defendant initiated the motion, the court stated, “That’s what I want to prevent. It seems to me the fairest thing now due to the fact, I don’t think either one should be rewarded for playing those games is to go back to the beginning.” Elaborating on this point, the court said, “I just think we are establishing precedent here that ought not to be established in terms of winning and I am trying, frankly, to give you a way to equalize the situation by suggesting a mistrial.” The court further stated, “it’s your only option, you know, I am trying to minimize the effect of the technicality involved here; but I just cannot see that I should encourage, if a motion to suppress was going to be filed, it ought to include everything and let me deal with it in the legal way and let you get on with the trial. I cannot encourage this kind of thing. We spent over an hour and a half on the motion to suppress and that should have been handled back when we had it.” Defense counsel then inquired about the date for retrial and the defendant’s prospects for bond if counsel should move for a mistrial. With this information in hand, counsel moved for and obtained a mistrial.

The question on appeal is whether the record contains substantial competent evidence to support the finding of overreaching. Rephrased in light of the applicable case law, the question is whether there is record support for the conclusion that the first trial judge exercised her discretion and declined to permit an in-trial suppression hearing because of a bad faith manipulative motivation to aid the state in gaining a tactical advantage over the defendant on retrial.

Although overreaching is virtually always discussed in connection with improper conduct, we believe that a discretionary act could support a finding of overreaching if it could be shown conclusively that the court exercised its discretion out of bad faith and for the manipulative purpose of inducing a motion for mistrial so that the state could improve its case on retrial. In this case, however, the defendant has failed to meet this burden. While some of the court’s remarks, if taken out of context, might lend themselves to such a characterization, the totality of the court’s remarks negates any suggestion of improper motivation. Indeed, it is obvious that the court acted to insure procedural regularity and, at the same time, to relieve the defendant from the consequences of a near-fatal pleading error.

Initially, the trial court ruled that its suppression order did not cover the post-arrest fingerprints because the defendant’s motion failed to satisfy Rule 3.190(h)(2)’s requirement of particularity. This ruling was correct. The motion as drafted was legally deficient. See State v. Hinton, 305 So.2d 804, 808 n. 2 (Fla. 4th DCA 1975). This deficiency is all the more glaring due to the fact that the defense was on notice of the state’s possession and potential use of fingerprints evidence. The state’s response to the defendant’s demand for discovery, filed long before the motion to suppress, listed fingerprints as a probable item of evidence. Furthermore, defense counsel did not mention fingerprints in his detailed response to the request for clarification at the beginning of the suppression hearing. Thus, counsel failed to cure the drafting error. Since the defendant was afforded a pretrial suppression hearing and either knew, or, in the exercise of reasonable diligence, should have known of the existence of the post-arrest fingerprints, we hold that the decision not to permit an in-trial suppression hearing was a matter within the trial court’s discretion. See Wingert v. State, 353 So.2d 643 (Fla. 3d DCA 1977); Rule 3.190(h)(4), Fla.R.Crim.P., cf. McDonnell v. State, 336 So.2d 553 (Fla.1976); Land v. State, 293 So.2d 704 (Fla.1974). Furthermore, our review of the record convinces us that the court exercised its discretion for wholly permissible reasons.

Actions manifest intent. Here, the actions of the first trial judge belie any suggestion of bad faith or manipulative intent. From the outset, the court implemented the law’s dictates. For example, it granted, in part, the defendant’s motion to suppress and consistently indicated that if the post-arrest fingerprints had been properly raised, they too would have been suppressed. Indeed, the court went so far as to indicate its willingness to grant an amended motion to suppress without taking additional evidence upon granting the defendant’s motion for mistrial.

In this effort to plumb the court’s mind and discern its intent, we believe that the court’s failure to take certain action is also relevant. If, as the defendant now suggests, the court’s purpose was to give the state a tactical advantage, then the surest method to achieve that end would have been to deny the defendant’s motion for an in-trial suppression hearing and to require that the trial proceed. The admission of the post-arrest fingerprints would have linked the defendant to the contraband and virtually assured his conviction. But this was not the court’s underlying purpose. Significantly, it was the trial judge, not defense counsel, who first raised the possibility of a mistrial. The purpose of this suggestion was eminently fair. It was to minimize the effect of defense counsel’s unintentional error which, if not rectified, would have resulted in a partial waiver of the defendant’s Fourth Amendment rights.

It is incongruous that the defendant, having profited from the court’s magnanimity, would now have us characterize that action as error. It was not. The court exercised its discretion and granted a mistrial only to save the defendant from the harsh consequences of his attorney’s action. The fact that the solution to the defendant’s dilemma originated in the mind of the court does not support a conclusion of judicial overreaching. Justice tempered with mercy is one of the highest ideals of Anglo-American jurisprudence. That ideal was realized here. Yet, it did not impair the court’s strict adherence to the doctrine “that every litigant is entitled to nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939).

In rendering this decision, we intend no criticism of the successor judge who was called upon to assess the actions of a colleague; that decision was difficult and courageous. Moreover, it was made without the benefit of the research provided to this court. Nonetheless, we hold that the record in this case, when measured against the appropriate standard, does not support a finding of judicial overreaching. Accordingly, the order of dismissal is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DOWNEY and BERANEK, JJ., concur.

      . § 893.135(l)(a), Fla.Stat. (1979).

      . § 893.13(l)(a), Fla.Stat. (1979).

      . Defendant’s motion sought the suppression of “all items seized by members of the Boca Ra-ton Police Department and the U.S. Customs Officers, particularly those tangible items contained in the information in the above-styled cause .... ”

      . “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb;” U.S. Const.amend. V.

      . The court gave this explanation for its adoption of the intent standard:
      [A] standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. When it is remembered that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system, but in the federal court system on habeas corpus as well, the desirability of an easily applied principle is apparent.

        Oregon v. Kennedy, - U.S. -, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).

      . Rule 3.220(b)(iii), Fla.R.Crim.P., provides that “[a]fter the filing of the indictment or information and subject to constitutional limitations, a judicial officer may require the accused to [b]e fingerprinted.” In the case at bar, however, the trial court indicated that it would not have permitted the defendant to be refingerprinted. “You cannot arrest somebody illegally, then bring them into court on an information; then using the discovery rules that say you can take his prints at trial, that makes no sense at all.” Since this issue is not before us, we decline to express an opinion on the correctness of the trial court’s assertion.

      . 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (fingerprints obtained during a constitutionally invalid detention held inadmissible at trial).

      . Subsection (h)(2) of Rule 3.190, Fla.R.Crim.P. requires that “[ejvery motion to suppress evidence shall clearly state the particular evidence sought to be suppressed .... ” Subsection (h)(4) states that “[t]he motion to suppress shall be made before trial ... but the court may entertain the motion or an appropriate objection at the trial.”

      .In particular, defense counsel complained about the following two statements. (1) “Believe me, I desperately want to help your end because I know the results of this situation, but I feel stuck.” (2) “Well, it’s influencing the Court’s decision to the extent that I intend to give them every opportunity to let them win.” Ante, at 764. In addition to the obvious unfairness of segmenting these remarks and viewing them out of context, we are concerned that such an approach would foreclose candid discussion between the court and counsel. The sound administration of justice demands that the court and counsel be able to talk to each other to better understand the issues at hand. That process would be severely impaired if the resulting dialogue were subject to blind dissection and analysis without reference to context.

      . Under the heading “3(i) — Tangible papers or objects obtained from or belonging to the Defendant,” the state listed: “Latents — Boca Ra-ton Police Dept.”
      Under the heading “3(j) — Tangible papers or objects not obtained from or belonging to the Defendant which the State intends to use at hearing or trial, “was listed: latent prints, known prints, photos, airplane, maps, marijuana, barbiuates [sic]/dilaudid, notes (flight), receipt, plastic wrap, and passport.”

      . The transcript of the suppression hearing also reveals that depositions had commenced prior to the suppression hearing.


text:
    William U. FINCH and Shambaugh & Finch, P.A., Appellants, v. Eric RIDER, Alan Weinstein, Mark Krasnow, et al., Appellees.
    No. 82-33.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Karel Baarslag of the Law Office of James Henderson, West Palm Beach, for appellants Finch and Shambaugh & Finch, P.A.
    H. Jack Klingensmith of Broad & Cassell, Bay Harbor Islands, for appellee Mark Krasnow.
    Gerald E. Rosser, Miami, for Appellee Alan E. Weinstein.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee Eric Rider.
    Sidney A. Stubbs, Jr., of Jones & Foster, Monroe A. Coogler, Jr., of Adams, Coogler, Watson & Smith, P.A., West Palm Beach, for appellees.
   PER CURIAM.

This is an appeal from an order denying motions attacking the jurisdiction of the court over nonresident defendants and denying motions to amend or withdraw answers filed on behalf of said nonresident defendants.

Appellants have filed three points on appeal all of which have been carefully considered and found to be without merit. While we do not approve the procedure giving rise to the problem raised in point III neither do we find any prejudice accruing to appellants by the de novo hearing held by the successor trial judge. Finally, we believe the record supports the finding of waiver.

Accordingly, the order appealed from is affirmed.

LETTS, C.J., and DOWNEY and DELL, JJ., concur.


text:
    Irene MAYES, Appellant, v. Joan COSGROVE and Metropolitan Life Insurance Company, Appellee.
    No. 82-131.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Richard L. Polin and William C. Gaus, Fort Lauderdale, for appellant.
    Alan Francis Ruf, Fort Lauderdale, for appellee, Metropolitan Life Ins. Co.
    Paul V. DeBianchi, Fort Lauderdale, for appellee, Joan Cosgrove.
   PER CURIAM.

This was an interpleader action brought by the Insurance Company to determine the decedent’s legal beneficiary. There were two claimants, Irene Mayes and Joan Cos-grove. The trial court entered summary judgment in favor of Joan Cosgrove. Irene Mayes appeals. We reverse and remand because there are existent genuine issues of material facts, which issues stand in the way of determining at this stage that Joan Cosgrove was entitled to judgment as a matter of law. Florida Rule of Civil Procedure 1.510(c).

The basic or beginning issue is whether or not the insured properly followed the procedures prescribed in the policy so as to designate Irene Mayes as the new beneficiary instead of the former beneficiary, Joan Cos-grove.

There are at least these genuine unresolved issues:

1. Whether the law of New York or Florida should apply;
2. Whether the facts established a waiver under Florida law or establish substantial compliance under New York law; and
3. Whether, by applying the rule of strict compliance, as the trial court did, the proceeds of the policy actually belong to the decedent’s estate rather than appellee.

Reversed and Remanded.

ANSTEAD, HURLEY and WALDEN, JJ., concur.


text:
    Edward Harry ALVIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-354.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Earle Lee Butler, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged by information with (1) introduction of contraband to a detention facility, (2) carrying a concealed firearm, (3) battery, (4) driving without a registration, (5) driving while intoxicated, and (6) unlawful blood alcohol content. Pursuant to plea negotiations, appellant entered a guilty plea to the carrying a concealed firearm count, with the remaining counts being nolle prossed. Appellant was adjudicated pursuant to the plea and placed on probation for five years. One of the conditions of probation was that he not drive or operate a motor vehicle without special permission of the court.

Appellant thereupon filed a motion for rehearing and/or to vacate or set aside sentence, premised upon the ground that the special condition of probation was not contemplated by the plea agreement. The motion was denied. We are satisfied that appellant established the ground raised by his motion; namely that the condition imposed was not contemplated by the plea negotiations. Accordingly, we reverse the judgment and imposition of probation and remand with direction that appellant be permitted to withdraw his plea of guilty in order that the matter may proceed in a manner consistent with such withdrawal.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    MERRILL ENTERPRISES, INC., Appellant, v. BARKETT OIL COMPANY OF FLORIDA, Appellee.
    No. 82-412.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Joseph S. Paglino, Miami, for appellant.
    Sidney M. Pertnoy of Wallace, Breslow & Pertnoy, Miami, for appellee.
   PER CURIAM.

This is an appeal from a post judgment order taxing costs and assessing attorneys’ fees against the plaintiff pursuant to Section 57.105, Florida Statutes (1981). The order in question was entered after plaintiff/appellant voluntarily dismissed the case on the eve of trial. Appellant contends that attorneys’ fees cannot be taxed after a voluntary dismissal. MacBain v. Bowling, 374 So.2d 75 (Fla. 3rd DCA 1979), holds to the contrary. We agree entirely with the MacBain decision and also hold that attorneys’ fees are taxable under the aforecited statute after a voluntary dismissal. The question is whether the fee award is based upon a finding of a complete absence of a justiciable issue of either law or fact. There is record support for the trial court’s determination that attorney’s fees should be awarded under Section 57.105 and there is no merit in any of the issues raised by appellant in its brief.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Harry T. HILSMAN, Appellant/Cross-Appellee, v. Barbara Paulette HILSMAN, Appellee/Cross-Appellant.
    No. 82-638.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant/cross-appellee.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P.A., and Edna L. Caruso, West Palm Beach, for appellee/cross-appellant.
   ON MOTION TO REVIEW

HERSEY, Judge.

The motion to review the trial court’s order staying final judgment, setting super-sedeas, and fixing family support pending appeal is denied.

The final judgment of dissolution in this case awarded wife, inter alia, $1,000 per month per child in child support for the two children, $3,000 per month in rehabilitative alimony for five years and the husband’s interest in the marital home. Husband filed a motion for supersedeas and to fix alimony pending appeal, claiming that he was unable to make the payments and wished to post security as bond. The trial court entered an order staying the final judgment, setting a supersedeas by requiring husband to deliver a quit-claim deed to other property owned by husband to be held in trust and awarding wife $2,500 in family support.

Wife claims that she was awarded $5,000 in child support and alimony by the final judgment and that this amount cannot be reduced to $2,500 except as a result of modification proceedings. Although it is not usual to stay a final order in dissolution proceedings, such action is authorized by Rule 9.310, Florida Rules of Appellate Procedure. According to that rule

[A] party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.

Thus, a trial court, in its sound discretion, may stay a final order of dissolution without providing for family support. However, pursuant to Rule 9.600, Florida Rules of Appellate Procedure, the trial court has “jurisdiction to enter ... orders awarding ... child support, alimony, or other awards necessary to protect the welfare and rights of any party pending appeal .... ”

The trial court here had jurisdiction to enter the order on review and since no abuse of discretion has been demonstrated that order is affirmed.

AFFIRMED.

LETTS, C.J., and ANSTEAD, J., concur.


text:
    C.Y. CHEN, Appellant, v. John F. WATTER, Appellee.
    No. 82-687.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      L. Frank Chopin of Cadwalader, Wickers-ham & Taft, Palm Beach, for appellant.
    Robert E. Ferris, Jr., of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Chen appeals the trial court’s order denying his motion to quash service of process. We have jurisdiction. Fla.R.App.P. 9.130(a)(3)(C)(i).

Appellant was served in New York. Section 48.193(l)(g), Florida Statutes, permits the courts of Florida to exercise jurisdiction over any person who breaches a contract in Florida by failure to perform acts required by the contract to be performed in Florida. Allegations in the record indicate that the contract which appellee alleges appellant breached included a provision that appellee would move to Florida. The agreement apparently contemplated that appellee would operate the business in Florida and that if the business failed appellant would indemnify appellee for his original investment in the business. Appellee alleged that the business did fail, but that appellant breached his agreement to indemnify appel-lee for his loss. Under these circumstances, it could be inferred that appellee would be entitled to payment in Florida, thus the failure to pay renders appellant amenable to long-arm jurisdiction.

AFFIRMED.

LETTS, C.J., and ANSTEAD and DELL, JJ., concur.