author: JOANOS, Judge. JOANOS, Judge.

text:
    The CITY OF JACKSONVILLE, a municipal corporation, Appellant, v. Jimmy Wayne DeRAY, Appellee.
    No. AD-450.
    District Court of Appeal of Florida, First District.
    July 2, 1982.
    Rehearing Denied Aug. 18, 1982.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen, Asst. Counsel, David C. Carter, Asst. Counsel, Jacksonville, for appellant.
    Hugh M. Davenport of Smith, Davenport, Bloom & Harden, Jacksonville, for appellee.
   JOANOS, Judge.

The City of Jacksonville appeals a final judgment, following a jury trial, in which it was found 50% negligent with regard to the conditions which led to appellee’s injuries. Prior to trial the City’s motion for summary judgment' on the issue of immunity from tort liability was denied. At trial its motion for directed verdict was denied and after trial, the City’s motion for judgment N.O.V. or in the alternative, for new trial, was denied. On appeal, the City argues that the denial of a directed verdict or a judgment N.O.V. in its favor was error. We agree and reverse.

DeRay was involved in an accident the night of July 9, 1979 when, while driving a small truck in a hard rain, he failed to round a curve on Duval Road. The truck collided with a bridge guardrail, uprooted two guardrail posts, cleared the 30 foot wide creek over which the bridge passed, landed on the opposite bank, and turned over. DeRay suffered a severed spinal cord and he is paralyzed from the waist down.

DeRay sued the City, alleging that the City breached its duty and carelessly or negligently failed to design, construct, or maintain Duval Road in a reasonably safe condition; was negligent in allowing an unreasonably narrow bridge to be located in an unreasonably sharp curve without sufficient warnings to motorists of the danger; and was negligent in failing to adequately illuminate the bridge or curve or otherwise warn motorists using the road at night of the degree of the curve or width of the bridge.

At the time of the accident the posted speed limit on Duval Road was 45 miles per hour. Existing markings included a curve sign on the approach to the curve and bridge, and a “slippery when wet” sign to which a 30 miles per hour plate was attached. The City did not design or construct the road, rather, it took over maintenance of the existing road in 1971, thus, as the case proceeded, the focus was on signalization and maintenance.

At trial Mr. Henry Mock, a traffic engineer with the City, stated that the City had adopted the Manual on Uniform Traffic Control Devices (the Manual) as the standard for signalization and markings. Mock acknowledged that his division, the Traffic Engineering Division, had received memos from the City’s Streets and Highways Division, recommending different signalization on this section of Duval Road. Mock said the recommended changes had not been made because the bridge was properly signed and the curve could be negotiated in the rain at 30 miles per hour. Signalization is the job of the Traffic Division.

Plaintiff/appellee presented expert testimony by an accident consulting engineer, Rolf W. Roley, who had viewed photographs of the area and read the reports. This expert based his testimony on the Manual. He opined that an appropriate speed at the curve would be 20 miles per hour due to the sharpness of the curve and the fact that it immediately preceded a bridge. He then stated that a turn sign, rather than a curve sign, would have been appropriate, because at speeds above 30 miles per hour a curve sign is used and for speeds below 30 miles per hour a turn sign is used. In his estimation a turn sign should have been placed 250 feet from the end of the bridge together with a speed advisory sign. In addition, in his opinion, delineators were needed on the edge of the road beginning at the turn sign and continuing through the bridge guardrail. Roley said the location was a problem because of the proximity of the bridge in relation to the curve.

Mr. Mock had testified that a turn differed from a curve in that it involves an angle of 90 degrees or more, and that the Manual indicates if speed is reduced to 30 m.p.h. or less a turn sign should be used. There was also testimony that some portions of the Manual are mandatory and some are advisory. Excerpts from the Manual were introduced in evidence.

On appeal the City argues that the marking and signalization on Duval Road and the decision whether to follow remedial recommendations are planning activities under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), and Ingham v. State, Department of Transportation, 399 So.2d 1028 (Fla. 1st DCA 1981), therefore it is immune from tort liability in this case. In Ingham v. State, Department of Transportation, 399 So.2d 1028 (Fla. 1st DCA 1981), this court held that the activities of construction of a road with a curve; position, shape, and size of a median; and adequacy of signalization, are discretionary policy functions and not operational activities. Even though the instant case also deals with adequacy of signalization, appel-lee makes a unique argument that signalization is an integral part of the duty to maintain. Appellee contends the planning phase of the City’s activities was concluded when the Manual was adopted as the standard and thereafter compliance with the Manual was an operational function, citing cases in which it has been held that road maintenance is an operational function. As an alternative, the City argues there was no actionable negligence on its part. To these arguments, appellee responds that the City was negligent in maintenance, repair, and failing to properly warn of a known dangerous condition, and that a jury could conclude that the existing markings were not in compliance with the Manual, proving that the City was negligent.

We agree that the planning stage of the City’s activities ended with the adoption of the Manual; putting the Manual into effect, insofar as its provisions are mandatory, would be operational. However, we have scrutinized the portions of the Manual introduced at trial and included in the record, and it appears the City was in compliance with the mandatory provisions. Cf. Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981) (duty to warn met with placement of signs meeting more than minimal requirements of “State Manual for Traffic Control Devices’’); State, Department of Transportation v. Cooper, 408 So.2d 781 (Fla. 2d DCA 1982) (accident caused by absence of stop ahead sign dictated by “Manual on Uniform Traffic Control Devices for Streets and Highways” adopted by DOT).

For example, under “General Provisions” in the Manual it is provided that the word “shall” indicates a mandatory condition, “should” an advisory condition, and “may” a permissive condition. Turning to the guidelines for the use of curve as opposed to turn signs, we find no mandatory language is used in describing the circumstances under which either sign is intended to be used. The Manual states that a curve sign “is intended for use where engineering investigations of roadway, geometric, and operating conditions show the recommended speed on the curve to be in the range between 30 and 60 miles per hour The turn sign is intended for use where the recommended speed on a turn is 30 m.p.h. or less. In this case the posted speed was 45 m.p.h. (or 30 m.p.h. when wet). Setting a speed limit is a planning function. Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979). It therefore, cannot be reasonably said that the curve sign was inappropriate under the Manual’s mandatory provisions.

With regard to placement of the warning signs, the portions of the Manual included in the record indicate that “in rural areas, warning signs should normally be placed about 750 feet in advance of the hazard or conditions” and in urban areas where speeds are relatively low “the advance distance should only be about 250 feet.” (e.s.) With regard to placement, then, the Manual is advisory; in addition, the record contains no evidence of how far from the hazards the warning signs were actually located other than an unverified suggestion by plaintiff’s counsel that the sign bearing the speed plate was 125 feet from the curve or bridge.

Although the plaintiff’s expert witness also opined that delineators should have been placed on the edge of the road leading up to the guardrail, the Manual indicates that use of delineators is mandatory on expressways, but “[t]hey may be provided on other classes of roads.” In addition, object markers for objects adjacent to the roadway, as opposed to objects in the roadway, are not mandatory and use of the chevron sign is not mandatory.

In short, there was no breach of duty in that there was no showing that the City failed to comply with the mandatory provisions of the Manual which had been adopted as a standard.

Accordingly, the final judgment appealed from is REVERSED and the proceeding is remanded to the Circuit Court with instructions to enter a judgment in favor of appellant.

THOMPSON and WIGGINTON, JJ., concur.

ON MOTION FOR REHEARING

JOANOS, Judge.

In a motion for rehearing, appellee directs our attention to the location in the record of testimony as to the distance between the warning signs and the hazards involved in this case. The statement in our opinion as to the lack of such evidence was offered as additional information, and does not affect the determination that with regard to placement of signs the Manual is advisory. We correct the original opinion by deleting from page five the partial sentence: “in addition, the record contains no evidence of how far from the hazards the warning signs were actually located other than an unverified suggestion by plaintiff’s counsel that the sign bearing the speed plate was 125 feet from the curve or bridge.” The final sentence in that paragraph should read “With regard to placement, then, the Manual is advisory.”

In all other respects the motion for rehearing is denied.

THOMPSON and WIGGINTON, JJ., concur.

      . Wojtan v. Hernando County, 379 So.2d 198 (Fla. 5th DCA 1980) (maintenance of road, shoulder in good, safe condition is operational); Wallace v. Nationwide Mutual Fire Insurance Co., 376 So.2d 39 (Fla. 4th DCA 1979) (failure to immediately restore fallen stop sign is operational); Feria v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979) (setting speed limit and deciding whether to widen lanes are planning; median strip design is similar to maintaining already installed traffic devices and is operational).


source: Caselaw Access Project

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

license: Public Domain

text:
    CRYSTAL RIVER ENTERPRISES, INC., a Florida corporation, Appellant, v. NASI, INC., a Florida corporation, Appellee.
    No. 81-1467.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    On Rehearing Aug. 8, 1982.
    Patricia M. Silver of Smith & Mandler, P.A., Miami Beach, for appellant.
    John Russell, P.A., Homosassa Springs, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment in favor of NASI, Inc., in an action by Crystal River Enterprises, Inc. to recover on an indemnity agreement executed by NASI.

Crystal River was the owner of a motel which it eventually sold to NASI. Crystal River was initially represented by International Motel Brokers, Inc. and agreed to pay a fee of $50,000 if International obtained a suitable buyer. The listing was for $1,650,-000. The initial offer by NASI was rejected by Crystal River. The president of NASI, Mr. Kouri, then advised the broker, Mr. Sullivan, that he would like to deal directly with Crystal River. Kouri requested Crystal River’s “rock bottom” price and stated that he would be responsible for any commission. Crystal River agreed to reduce the asking price by the $50,000 broker’s fee and another $50,000 for needed repairs. Crystal River also required NASI to sign an indemnity agreement which specifically provided that NASI would hold Crystal River harmless and reimburse it for any expenses or loss incident to any claim asserted by International.

The transaction was closed but International was not paid. International sued Crystal River and obtained judgment by default for the $50,000. Crystal River then filed suit against NASI to recover under the indemnity agreement. Judgment was entered in favor of NASI. This court subsequently reversed the judgment and remanded the cause for trial. Crystal River Enterprises, Inc. v. NASI, Inc., 399 So.2d 77 (Fla. 5th DCA 1981).

At the trial, NASI moved for involuntary dismissal and summary judgment at the close of Crystal River’s case. The trial court granted the motions on the basis that Crystal River had failed to prove that International or Sullivan, its agent, was a licensed broker at the time of the transaction, that Sullivan had abandoned his right to the commission and that Crystal River failed to establish that a broker’s fee was due if the property were sold at less than the asking price.

With regard to the first matter, Crystal River argues that whether the broker was licensed was not at issue at the trial below. We need not address this question because we find that proof of licensing was adequately established. At trial, Sullivan stated that he had been licensed in Florida for three and one-half years, the first year as a salesman and the balance as a broker. This testimony established that he was licensed on or about March 1, 1978. Pursuant to section 475.17, Florida Statutes (1981), Sullivan was then authorized to engage in real estate transactions. The property here was listed in January or February 1979, and the transaction closed in May, 1979, well after the time that Sullivan was licensed as either a salesman or a broker.

Regarding the second matter, we conclude that the trial court erroneously found that Sullivan had abandoned any right he had to a commission by not attempting to negotiate further after the initial offer was rejected. The evidence established that Sullivan brought NASI and Crystal River together but that Sullivan discontinued personal participation at the request of NASI. If property is placed with a broker for sale at a certain price and the sale is brought about through the broker as the procuring cause, the broker is generally entitled to his commission even though the final negotiations were conducted through the property owner who, in order to make a sale, accepted a price less than that stipulated to the broker. Daneli Corp. v. Bryant, 399 So.2d 387 (Fla. 4th DCA 1981).

We also conclude that Crystal River properly established the amount of the broker’s fee. Both Crystal River and the broker, the only parties to the agreement, testified that the amount of the broker’s fee was $50,000. The final purchase price was substantially the same as the list price, diminished only by the cost of needed repairs and the broker’s fee for which NASI specifically agreed to indemnify Crystal River.

Therefore, we REVERSE and REMAND for determination of all amounts due under the terms of the indemnity agreement and entry of judgment against NASI.

DAUKSCH and COBB, JJ., concur.

ON MOTION FOR REHEARING

FRANK D. UPCHURCH, Jr., Judge.

NASI has moved for rehearing of this court’s opinion filed July 7, 1982, which directs the trial court to enter judgment for Crystal River on its indemnity claim against NASI. The record reflects that NASI moved for an involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b) or for the entry of summary judgment after Crystal River (the plaintiff) • rested. The trial court granted the motion and later entered judgment in favor of NASI.

Rule 1.420(b) provides as follows:

After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of his evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted .... (emphasis added)

Since the motion was granted, there was no need to complete the trial with the presentation of NASI’s case or any rebuttal by Crystal River. In our opinion, we held that the trial court had erred in granting the motion. However, the cause should be remanded for completion of the trial rather than for the entry of judgment against NASI.

The motion for rehearing is granted, and our opinion of July 7, 1982, is amended to provide that the judgment appealed is REVERSED and this cause REMANDED for completion of the trial.

DAUKSCH and COBB, JJ., concur.

      . The court did not specify which motion (involuntary dismissal or summary judgment) it was granting. Later in the final judgment, the court stated that it granted both motions.


author: HURLEY, Judge. ANSTEAD, Judge,

text:
    Norman H. ZIPKIN, Appellant, v. RUBIN CONSTRUCTION COMPANY, et al., Appellees.
    Nos. 80-965, 80-1009.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.
    Rehearing Denied Sept. 20, 1982.

      Larry Klein, West Palm Beach, and Zip-kin & Finn, Miami, for appellant.
    David F. Cooney of Grimmett, Conrad, Scherer & James, P.A., Fort Lauderdale, for appellees.
   HURLEY, Judge.

This appeal challenges the propriety of a summary judgment in favor of a landowner in a premises liability case. We conclude that plaintiff’s decedent was an uninvited licensee and that the landowner did not breach a duty of care by failing to warn of an obvious danger. Accordingly, we affirm.

The factual background of this case begins in 1967 when James Wilkinson purchased a strip of land which bordered the northern edge of his property in western Palm Beach County. The warranty deed contained the following provision:

The grantor reserves unto herself, her heirs, administrators, successors and assigns forever a right of ingress and egress for vehicular and pedestrian traffic over the north 20 feet of the above described lands, but with no duty of the grantee to maintain such road as may exist thereon.

The above easement consisted of a “dike road” which ran from east to west across the newly-acquired property. As suggested by its name, it served a dual function. As a dike it separated water and drainage systems in one farm from another. As a roadway it served as a connecting link to the public highway. The dike was composed of mud scooped out of the canal, piled into a mound and packed to form a levee. Deep canals bounded it to the north and south. The banks of the dike were steep, but not vertical. The top had been flattened to serve as a roadway and measured approximately eighteen to nineteen feet in width. It was about twelve feet from the road surface to the canal waters below.

In 1976, Harold Gilbert owned the easement and the land east of Wilkinson’s. Gilbert’s land contained a rock pit from which shell rock was extracted by the Rubin Construction Company. Apparently, a major road construction project was in the offing and Rubin hoped to supply all of the shell rock.- In the same vein, a trucker by the name of Ramon Capote hoped to obtain the contract to haul shell rock from Gilbert’s rock pit to the road construction site. Since this plan would necessitate heavy volume truck traffic over the dike road, Rubin and Capote agreed to resurface the dike road with a layer of shell rock.

On March 11, 1976, David Mí riaca was working as a truck driver for Ramon Capote. Mariaca’s job was to haul shell rock from Gilbert’s rock pit to a point on the road where a bulldozer waited to spread the shell rock. The dumping procedure called for the trucks to drive around the bulldozer, dump the shell rock on the roadway and then proceed west on the dike road. Since the roadway was about eighteen feet wide and the bulldozer blade was ten feet wide and the trucks were eight feet wide, passing was a precarious maneuver which demanded extreme caution. To facilitate the procedure, the bulldozer would pull to the south side of the road and allow the left end of the blade to hang over the bank. This gave the trucks about two feet of clearance.

On Mariaca’s third approach of the day, approximately forty-four feet from the rear of the bulldozer, his fully loaded truck went over the edge of the dike road and landed upside down in the canal. Mariaca drowned. State troopers investigating the accident determined that about two feet of the roadway at the edge had pjven way under the weight of the loaded truck.

Zipkin, as the representative of Mariaca’s estate and on behalf of his wife and children, filed suit against a number of individuals including Wilkinson and hi¡¡ farming corporation. Zipkin alleged that Wilkinson and his corporation were negligent (a) in failing to maintain the dike road, and (b) in failing to warn plaintiff’s decedent of latent defects in the road. Wilkinson and his corporation moved for summary judgment. The trial court granted the motion and this .appeal ensued.

At the outset we reject Wilkinson’s contention that the legal effect of the easement is to relieve him of all duty to third parties. In essence, he argues that his inability to exclude individuals from the easement absolves him of any duty of care. Perhaps if this were true, his argument would have merit. See, e.g., Levy v. Kimball, 50 Hawaii 497, 443 P.2d 142 (1968). In fact, however, Wilkinson’s premise is incorrect. It is a basic tenet of real property law that “(t)he possessor of land subject to an easement created by conveyance is privileged to make such uses of the servient tenement as are not inconsistent with the provisions of the creating conveyance.” Restatement (Second) of Property, § 486 (1976); see also 25 Am.Jur.2d Easements and Licenses, § 89 (1966). Inasmuch as the easement in this case merely permits ingress and egress to Gilbert’s property, Wilkinson retains some authority over the road. He may use it himself and may permit others to use it so long as the use does not impede the right of ingress and egress. For example, Wilkinson might permit and even charge others to fish from the sides of the dike road. If he did so, it would be untenable to suggest that the existence of the easement would act to relieve Wilkinson of the normal duty of care owed to business invitees and invited licensees. Consequently, we hold that the easement in this case does not preclude consideration of the landowner’s duty to third parties. At the same time, we hold the easement is a particularly relevant factor in determining the entrant’s status vis-a-vis the landowner.

Florida classifies entrants onto the land of another into the following three categories: (1) trespassers, (2) uninvited licensees, and (3) invited licensees and. invitees. Wood v. Camp, 284 So.2d 691 (Fla. 1973). The status of the entrant and the corresponding duty owed by the landowner must be gleaned from the relationship between the two. “[I]t is the relationship established between persons which must be the criterion for the duty owed.” Id. at 694. Moreover, where the facts are not in dispute, it is appropriate for the court to fix the status of the entrant as a matter of law. Id. at 696.

In the ease at bar, the easement guarantees a right of ingress and egress to the easement owner, his invitees, and his licensees. Additionally, if places the responsibility for repair squarely on the shoulders of the easement owner. These factors are significant to the extent that they bear on the question of whether Wilkinson expressly or impliedly invited Mariaca onto the premises or whether Mariaca’s activity amounted to a business dealing with Wilkinson. The undisputed evidence in the record reveals that the answer to both questions is “no.” Although Wilkinson knew the road was being repaired, he had no involvement in the project. On the other hand, it is also undisputed that Gilbert, the easement owner, had an agreement with Rubin Construction Company for the sale of shell rock. Given these facts, it is inconceivable that Rubin’s resurfacing of the road could be construed as a business deal with Wilkinson. Thus, Mariaca was not Wilkinson’s invitee, nor was he a trespasser. Therefore we hold that he occupied the status of an uninvited licensee vis-á-vis Wilkinson, the landowner.

The duty owed by a landowr er to an uninvited licensee has been stated as follows:

The duty owed to a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, :o refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee.

Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977).

Focusing on the duty to warn, it is now generally held that a landowner must exercise reasonable care to warn uninvited licensees of all hidden perils which are unknown to the licensee but are known to the landowner. A hidden danger or peril is nothing more than an unreasonably dangerous condition that an uninvited licensee could not reasonably be expected to discover or appreciate. The landowner, however, has no duty to warn of conditions which a reasonable person would observe and avoid through the ordinary use of their senses. In short, superior knowledge of the danger is essential before there is a duty to warn. Vermont Mutual Insurance Co. v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978); Rice v. Florida Power and Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied., 373 So.2d 460 (Fla.1979).

Turning again to the case at bar, it is readily apparent that the cave-in of the road’s edge beneath the weight of a fully loaded truck did not constitute a hidden peril. The composition of the road’s surface, the angle of the bank, and the lack of guard rails were obvious for all to observe. Wilkinson’s admission at deposition that a muck-based road would come apart does not constitute superior knowledge. The dangers inherent in driving too close to the edge of a road are within the realm of common experience. Moreover, in this case we have the added factors of a fully loaded truck nearing the side of a sharply inclined bank. The dangers were open and readily comprehensible. Consequently, based on the undisputed facts, we hold that the condition here did not constitute a hidden peril sufficient to impose a duty to warn. Thus, we conclude that the trial court was correct in granting the motion for summary judgment and in assessing costs against the plaintiff. The judgment is AFFIRMED.

LETTS, C. J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I concur in the majority’s analysis of the law and conclusion as to the status of the deceased truck driver. I disagree, however, with the majority’s conclusion that there is no material issue of fact as to the landowner’s alleged breach of duty to the deceased.

Initially, it seems clear that responsibility for the tragic accident that took place must be shared by a number of people, including the deceased. The entire resurfacing operation, as pointed out in the majority opinion, was fraught with danger. It appears that the deceased was put in a position of having to walk a greased tightrope over the proverbial bottomless pit in order to carry out his assigned task of delivering shell rock. Given those circumstances it is tempting to simply conclude that he just went over the edge of the road and therefore was responsible for his own demise. However, there is evidence that the accident was caused by the collapse of the road rather than by the deceased driving over the edge. The majority has concluded that: “Wilkinson’s admission at deposition that a muck-based road would come apart does not constitute superior knowledge.” I cannot agree. Muck is highly unstable material. Anything constructed on a muck base may be subject to all kinds of problems. On the other hand, earth or dirt is much more stable. There is no evidence in this record that the deceased had knowledge that the dike road was subject to collapse because it was built on a muck base.

I also cannot agree with the majority’s conclusion that: “The dangers inherent in driving too close to the edge of a road are within the realm of common experience.” As pointed out above, roads may be composed of different materials, some more stable than others. It may be entirely safe to drive right along the edge of the roadway in the Rocky Mountains where the road is virtually solid rock. But it is an entirely different matter to drive on the edge of a roadway constructed of a mix of organic materials subject to continuous decomposition and eventual collapse. Awareness of the difference may be critical.

Given the present state of the record I would reverse the summary resolution of this case and remand for trial.

      . We emphasize that the only issue court at this juncture is the categc rization of Mariaca’s status vis-á-vis Wilkinson,. We have before the not considered, nor do we express any opinion as to the appropriate categorization of Maria-ca’s status vis-a-vis Gilbert, the easement owner.

      . A trespasser is one who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. Page, The Law of Premises Liability, Section 2.2 (1976).

      . An uninvited licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit. Post v. Lunney, 261 So.2d 146 (Fla.1972). The most practical definition of a licensee is any person who is neither a trespasser nor an invitee. Page, The Law of Premises Liability, Section 3.2 (1976).

      . Florida has adopted the definition of an invitee found in the Restatement (Second) of Torts, Section 332 (1964):
      (1) An invitee is either a public invitee or a business visitor.
      (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
      (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
      Florida has expanded the invitee category to include “those who are ‘licensees by invitation’ of the property owner, either by express or reasonably implied invitation.” Wood v. Camp, 284 So.2d 691, 695 (Fla.1973).

      . This is consistent with the general rule that, absent an agreement to the contrary, the burden of maintenance and repair falls on the dominant tenement (easement owner) rather than the servient tenement (underlying land owner). 25 Am.Jur.2d Easements and Licenses § 85 (1966); Renden v. Geneva Development Corp., 61 Cal.Rptr. 463, 253 Cal.App.2d 578 (C.A.Cal.1967); Triplett v. Beuckman, 40 Ill. App.3d 379, 352 N.E.2d 458 (Ill.App.1976); Archaumbault v. Williams, 359 Mass. 742, 268 N.E.2d 926 (1971); James v. Politis, 361 N.Y. S.2d 613, 79 Misc.2d 941 (S.Ct.N.Y.1974). This principle has been fully accepted in Florida. 20 Fla.Jur.2d Easements § 35 (1980); Sebastian River Drainage District v. Ansin, 29 Fla.Supp. 77 (1967), affirmed, 223 So.2d 57 (Fla.4th DCA 1969).

      .In reaching the conclusion, we have decided not to follow Section 349 of the Restatement (Second) of Torts (1964) which provides:
      A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care
      (a) to maintain the highway or way in safe condition for their use, or
      (b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.
      Similarly, we have declined to follow the view expressed in Triplett v. Beuckman, 40 Ill. App.3d 379, 352 N.E.2d 458, 460 (1976):
      The only duty the owner of the servient tenement has is to not interfere with the use of the easement for purposes of access by the owner of the dominant tenement, that is, the owner of the easement.

        Since an easement is essentially “a privilege which the owner of one tenement has a right to enjoy over the tenement of another,” 25 Am. Jur.2d, Easements & Licenses, § 1, we find support for today’s holding in Section 345 of the Restatement (Second) of Torts (1964) which provides in pertinent part:
      [Tjhe liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor’s consent, is the same as the liability to a licensee.


author: PER CURIAM.

text:
    E. Jane ROCK, as Executrix of the Estate of John H. Rock, Deceased, Appellant/Cross-Appellee, v. LEATHERBY INSURANCE COMPANY, Frank G. Smith, individually, and d/b/a Frank Smith, Construction, Appellees/ Cross-Appellants, v. RYDER TRUCK RENTAL, INC., Robert W. Taylor and Insurance Company of North America, Appellees.
    No. 79-2339.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 23, 1982.
    Edgar G. Hamilton of Hamilton, James, Merkle & Young, West Palm Beach, and Timothy J. Hmielewski, Fort Lauderdale, for appellant/cross-appellee.
    Ronald D. Poltorack of Walton Lantaff Schroeder & Carson, Fort Lauderdale, for appellees/cross-appellants.
    Paul R. Regensdorf, John W. Fleming and William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees-Robert W. Taylor, Ryder Truck Rental, Inc., and Insurance Co. of North America.
   PER CURIAM.

Upon review of the three issues raised on appeal we find no reversible error and affirm. The record reflects sufficient evidence to support the jury verdict finding the appellee, Robert W. Taylor, free of negligence. In addition we find no abuse of discretion by the trial court on its rulings in the proposed jury instruction and the objections made by appellant’s counsel during closing arguments. Cf. LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978).

Accordingly, the judgment of the trial court is hereby affirmed as to the issues raised on direct appeal. We continue the stay of the cross-appeal.

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: MILLS, Judge.

text:
    GROVE ISLE, LTD., Appellant/Cross-Appellee, v. BAYSHORE HOMEOWNERS’ ASSOCIATION, INC., et al. and State of Florida Department of Environmental Regulation, Appellees/Cross-Appellants. BAYSHORE HOMEOWNERS’ ASSOCIATION, et al., Appellants/Cross-Appellees, v. STATE of Florida, DEPARTMENT OF NATURAL RESOURCES and Grove Isle, Ltd., Appellees/Cross-Appellants.
    Nos. AB-8, AC-373.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Rehearing Denied Sept. 20, 1982.

      Larry S. Stewart of Floyd, Pearson, Stewart, Richman, Greer & Weil, P.A., Miami, and Kenneth G. Oertel of Oertel & Laramore, P.A., Tallahassee, for appellant/cross-appellee Grove Isle, Ltd.
    Douglas M. Halsey of Paul & Thomson and David A. Doheny, Miami, for appellant/cross-appellee Bayshore Homeowners, et al.
    Deborah A. Getzoff, Tampa, for appellee Dept, of Natural Resources.
    Alfred W. Clark, Alfred J. Malefatto, and Randall E. Denker, Tallahassee, for appellee Dept, of Environmental Regulation.
   MILLS, Judge.

These cases are consolidated appeals and cross appeals from final orders of the De- . partment of Natural Resources (DNR) and the Department of Environmental Regulation (DER) concerning construction of a proposed marina adjacent to Grove Isle in Biscayne Bay.

Grove Isle, Ltd. seeks to construct a marina adjacent to its condominium project on Grove Isle. Bayshore Homeowner’s Association and others are individuals and special interest groups who reside in the residential area across from Grove Isle on the mainland and who use the proposed marina site for recreational activities. They, of course, oppose construction of the marina, arguing that it will interfere with their enjoyment of the area and pollute that part of Biscayne Bay.

The proposed marina will contain 90 boat slips and be constructed on approximately five and one-half acres of State submerged lands. The slips will be available only to Grove Isle condominium owners.

DNR APPEAL

On 27 March 1979, Grove Isle, the developer of the marina project, filed an application with DNR for a lease of sovereignty submerged lands. DNR informed Grove Isle that no lease was required. Under DNR’s interpretation of its rules, the marina would be a private dock used exclusively by condominium owners which produced no direct income.

Bayshore and the other petitioners administratively challenged this determination. Grove Isle was permitted to intervene as a respondent and moved to dismiss the petitions for lack of standing. DNR joined the motions to dismiss. The hearing officer held that the petitioners lacked standing. He also held that no lease was required because since 1978 DNR had interpreted its rules so as not to require leases under the circumstances of this case.

The finding of no standing was premised on the conclusion that the petitioners had no substantial interest in the proceedings and that DNR had taken no action and would take no action which affected the substantial interest of any party.

The Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund (Trustees), adopted the hearing officer’s conclusions of law that no lease of sovereignty submerged lands was required but rejected his conclusion of law regarding standing. The Trustees held the petitioners demonstrated standing and must be allowed a point of entry in the proceedings. Bayshore and others appeal the decision regarding the lease, and Grove Isle cross appeal the standing decision.

We affirm the appeal, reverse the cross appeal, and hold that the petitioners lack standing to challenge DNR’s decision that no lease was required. Petitioners have failed to show how their “substantial interests” will be “affected” by the DNR’s decision that no lease is required. They, therefore, were not entitled to initiate Section 120.57 proceedings. Section 120.52(10); Section 120.57, Florida Statutes (1979). Their petitions for administrative hearing allege that they will be adversely affected by the adverse consequences to Biscayne Bay which will be caused by construction of the marina. These allegations do not show how petitioners are “substantially affected” any more than the general public by DNR’s decision not to require a lease for the marina. See U.S. Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974); Chabau v. Dade County, 385 So.2d 129 (Fla. 3d DCA 1980).

DNR’s decision merely holds that no lease is required for the proposed marina. It in no way concerns the permit requirements for construction of the marina. This case is analagous to Peterson v. Florida Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA 1980), and Suwannee Area Council, etc. v. State, 384 So.2d 1369 (Fla. 1st DCA 1980). In those cases, we held that third parties had no standing to challenge a decision by the Department of Community Affairs as to whether a proposed construction project was a development of regional impact (DRI).

As noted in Peterson, a determination of whether a project is a DRI does not insulate the developer from jurisdictional or permitting requirements of other federal, state, or local agencies. Likewise, a decision by DNR that no lease is required for Grove Isle’s proposed marina does not insulate the developer from the permitting requirements governing construction of the marina. Because the petitioners have failed to demonstrate how they are substantially affected any more than the general public by DNR’s decision not to require Grove Isle to pay rent for the submerged land in question, we reverse that portion of the Trustee’s final order granting petitioners standing and dismiss Bayshore’s appeal.

DER APPEAL

On 13 March 1978, Grove Isle applied to DER for a permit to construct the marina. The permit was “deactivated” from 27 September 1978 until 30 March 1979, so that Grove Isle could comply with other various governmental agencies regarding construction of the marina. Grove Isle’s permit was deemed complete by DER on 3 August 1979. DER issued an “intent to issue permit” on 23 October 1979. Bayshore and others filed for an administrative hearing on whether the permit should issue.

The initial hearing was held in January 1980. The hearing officer issued a recommended order that the permit be issued. Bayshore and the other petitioners, except for Mr. Doheny and Mr. Filer, were found to lack standing. The hearing officer’s finding was based on a lack of evidence in the record upon which a legal conclusion regarding the remaining petitioners’ standing could be made.

. This hearing was conducted using Rule 17-4.29, Florida Administrative Code, as the applicable water quality standard. In its final order, DER accepted the hearing officer’s findings of fact and conclusions of law except for the conclusion of law.regarding the applicable water quality rule and public interest criteria. DER denied the permit because the hearing had been conducted under the wrong water quality standard. DER asserted the appropriate standard was Rule 17-4.242, Florida Administrative Code, Florida Outstanding Water Rule, which applied to permit applications completed after 1 March 1979. Biscayne Bay is among those bodies of water designated as Outstanding Florida Waters. Rule 17-3.041(1)(f), Florida Administrative Code. After denying the permit, DER remanded for a new hearing for the taking of additional evidence of whether the proposed marina complied with Rule 17-4.242.

Upon remand the hearing officer recommended that the permit be denied because although ambient water quality surrounding the marina would not be lowered, Grove Isle failed to carry its burden of showing the marina was clearly in the public interest as required by the rule.

In its final order under the new water quality standard, DER accepted the hearing officer’s conclusion of law that Grove Isle did not show the marina was “clearly in the public interest.” However, DER rejected the conclusion that ambient water quality would not be lowered.

DER held that unless a “restricted mixing zone” was applied for pursuant to Rule 17-4.242(l)(a)2.b, Florida Administrative Code, ambient water quality was to be measured within the project site, not in the small cove in which the marina was located as done by the hearing officer. DER found the hearing officer applied de facto mixing zone criteria erroneously.

DER denied issuance of the permit since the project was" not “clearly in the public interest” and it was uncertain whether ambient water quality would be lowered.

Grove Isle appeals the denial of the permit and Bayshore, et al. cross appeal the decision on standing. We affirm the appeal and cross appeal.

There is no merit to Grove Isle’s first argument that it is entitled to a permit by default because DER failed to timely act on its application. DER complied with the applicable time frames in the statutes and rules.

Because Biscayne Bay is one of Florida’s Outstanding Waters, a permit applicant must show that its proposed project will not lower ambient water quality and that the project is clearly in the public interest. Rule 17-4.242, Florida Administrative Code, states:

(a) No Department permit or water quality certification shall be issued for any stationary installation which significantly degrades, ... or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
2. The proposed activity or discharge is clearly in the public interest; and either,
b. The existing ambient water quality within Outstanding Florida Waters will not be lowered ...

Grove Isle, therefore, had two burdens to overcome before it was entitled to the permit. The hearing officer held that ambient water quality would not be lowered; DER rejected this conclusion. We hold DER erred in doing so. DER offered no expert testimony or evidence, other than conclusory allegations, that ambient water quality must be measured within the project site rather than within the reasonably contiguous area used by the hearing officer. „ Absent such record foundation, DER is not free to substitute its conclusions for those of the hearing officer. Anheuser Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981). Because DER’s conclusion regarding the location of ambient water quality measurement was based upon nonrule policy which was susceptible of verification by evidence in the proceedings before the hearing officer, but which was not proved by DER, the conclusion is vacated. Anheuser Busch, supra.

We affirm, however, the conclusion of the hearing officer, adopted by DER, that Grove Isle failed to carry its burden of showing the project was clearly in the public interest. This conclusion is supported by competent substantial evidence in the record and we will not substitute our judgment for that of the hearing officer.

Grove Isle’s argument that DER should be estopped from applying the new, more stringent water quality rule is without merit. Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980).

We hold there was no error in the conclusion regarding Bayshore’s lack of standing. The ruling was the result of a lack of evidence in the record upon which the hearing officer could base a conclusion regarding standing. This conclusion was supported by the record and properly adopted by DER.

We reverse DNR’s decision that Bayshore had standing to challenge the determination that no lease was required and we affirm DER’s denial of a construction permit to Grove Isle.

ROBERT P. SMITH, Jr., C.J., and DOW-NEY, JAMES C., Associate Judge, concur.


author: COWART, Judge.

text:
    Patricia REEVES, Appellant, v. Merlin MILLER and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 81-406.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    Rehearing Denied Sept. 10, 1982.
    Charles Tindell of Elliott, Tindell & Strasser, Daytona Beach, for appellant.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellees.
   COWART, Judge.

This case involves the validity of an exclusionary clause contained in an automobile liability insurance policy, which exclusionary clause was not provided for in the state law requiring such liability policy.

On June 23, 1975, appellant was injured in an accident involving appellee Merlin Miller, who was operating his privately owned automobile while acting in the course of his employment as a recruiter for the United States Marine Corps. Therefore, the United States was liable for Miller’s actions under the federal tort claims act. See 28 U.S.C.A. § 2679(b) (Supp.1982). At the time of this accident, Miller was required by the laws of the State of Florida to have a motor vehicle liability policy. Miller’s policy with appellee State Farm contained an exclusion from liability coverage for both bodily injuries and property damages as to “any obligation for which the United States may be liable under the federal tort claims act.” Appellant sued Miller for negligence and State Farm as Miller’s liability carrier. The trial court entered summary judgment for State Farm on the basis of the exclusionary clause. We reverse.

Insurance provided to comply with a statutory requirement must comply with the statute. A policy purporting to provide the required statutory coverage but containing exclusions not contemplated by the statute does not provide the required coverage. Since the unauthorized exclusions are contrary to public policy as established by the statute, they are deemed inapplicable and disregarded and the policy is enforced as if it were in express compliance with the statutory requirements. See, e.g., Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1971); State Farm Mut. Auto. Ins, Co. v. Chapman, 415 So.2d 47 (Fla. 5th DCA 1982); Andriakos v. Cavanaugh, 350 So.2d 561 (Fla. 2d DCA 1977).

The statutes requiring Miller to have motor vehicle liability coverage did not provide for an exclusion for obligations cognizable under the Federal Tort Claims Act. Therefore, that exclusion is contrary to the legislative public policy requiring such liability insurance and is inoperative and invalid. The trial court erred in relying on the exclusion in granting the appealed summary judgment and that judgment is hereby

REVERSED and the cause remanded for further proceedings.

ORFINGER, C. J., and COBB, J., concur.

      . See ch. 324, Fla.Stat. (1975); § 627.733, Fla. Stat. (1975) (effective January 1, 1972). See also ch. 77 468, § 31, Laws of Florida (amending section 627.733(3)(a), effective September 1, 1977).


author: PER CURIAM. NESBITT, Judge

text:
    Charles MAXWELL, Appellant, v. Philip SEIDLER and Allington Carib, Inc., Appellees.
    No. 81-144.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Rehearing Denied Oct. 1, 1982.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Lenard H. Gorman, Miami, for appellant.
    Carlos L. De Zayas, Hialeah, for appel-lees.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Banks Real Estate Corp. v. Gordon, 353 So.2d 859 (Fla. 3d DCA 1977); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975); Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 3d DCA), cert. denied, 324 So.2d 86 (Fla.1975); B & B Super Markets, Inc. v. Metz, 260 So.2d 529 (Fla. 2d DCA 1971), cert. denied, 267 So.2d 834 (Fla.1972); National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964).

NESBITT, Judge

(dissenting):

I respectfully dissent. In this type of case, the facts are vastly more important than the case decisions.

The majority affirms the directed verdict in favor of the purchaser, Seidler, because of their view that the broker did not demonstrate that he had any legally protectable interest as the procuring cause of the sale. In my view, the evidence presented irresistible inferences, which could only have been properly resolved by a jury, as to whether the parties conspired to deprive the plaintiff of a real estate brokerage commission.

It is clear to me that the broker found a lucrative property and, on two occasions, communicated the information about the property to Seidler’s business partner. Finally, he talked by telephone to Seidler, who expressed a great interest in the motel and requested more information. When the broker attempted to communicate that information, Seidler abruptly terminated further negotiations. Under these circumstances, the broker was excused from the doctrine of continuous negotiations.

Because Seidler had expressed great interest in the property and ultimately became the purchaser through another real estate broker (for whom Seidler’s daughter was a salesman), a jury could well infer that after Seidler had extracted the broker’s time, effort, and information, he decided to steer the transaction away from him. Consequently, I would find that the plaintiff has been denied his right to have these questions resolved by a jury.

I dissent.


author: MELVIN, WOODROW M. (Ret.), Associate Judge. FERGUSON, Judge

text:
    Lazaro Raul PEREZ, Appellant, v. K-MART CORP., a foreign corporation, Appellee.
    No. 81-1157.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Rehearing Denied Sept. 24, 1982.
    Keyfetz & Poses and L. Barry Keyfetz, Miami, for appellant.
    John F. McMath, Jeanne Heyward, Miami, for appellee.
    Before HUBBART, C.J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   MELVIN, WOODROW M. (Ret.), Associate Judge.

Appellant, plaintiff in the trial court, seeks review of an adverse final summary judgment holding that Section 440.11, Florida Statutes (1979) bars his cause of action against his employer K-Mart Corp.

On appeal the appellant challenges the constitutionality of the 1979 Workers’ Compensation Statute, more particularly Section 440.11 Florida Statutes (1979) which provides the exclusive remedy where an employee is injured during the course of his employment. The constitutionality of Chapter 440 Florida Statutes has been upheld in the past contrary to the appellant’s contentions. See Iglesia v. Floran, 394 So.2d 994 (Fla. 1981); Favre v. Capeletti Brothers, Inc., 381 So.2d 1356 (Fla. 1980); Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427 (Fla. 1978); Carr v. Central Florida Aluminium Products, Inc., 402 So.2d 565 (Fla. 1st DCA 1981). His further contention that the 1979 revision of Chapter 440 Florida Statutes, which reduced the benefits to injured employees, has rendered Chapter 440 Florida Statutes (1979) unconstitutional, we also find to be without merit. Cf., Chapman v. Dillon, 415 So.2d 12 (Fla. 1982).

Based on the foregoing we fail to find error in the ruling of the trial court and the order appealed is hereby affirmed.

Affirmed.

FERGUSON, Judge

(specially concurring).

I concur because in order to resolve this dispute we need not consider those portions of Section 440.11, Florida Statutes (1979) which are of questionable constitutionality.


text:
    Irma Christine SMITH, Appellant, v. Thomas A. SMITH, Appellee.
    No. AG-143.
    District Court of Appeal of Florida, First District.
    July 27, 1982.
    On Motion for Clarification Aug. 31, 1982.
    John Paul Howard, Jacksonville, for appellant.
    Jeffrey B. Marks of Schneider, Dunay, Ryan & Marks, Jacksonville, for appellee.
   JOANOS, Judge.

From the final judgment of dissolution of marriage in this case, the wife appeals. With regard to the amount of permanent alimony awarded, the requirement that wife make one-half of the monthly mortgage payments, and the lack of a requirement that husband maintain wife on his major medical and hospitalization insurance policies, that remedy not having been requested below, we find no error. However, the award of a sixty percent interest in the marital home as a special equity to husband must be reversed.

In the final judgment the trial court found that some two years before the dissolution, the parties sold the jointly owned marital home on Tampica Road and invested the proceeds of the sale, after paying off debts, in the present marital home which was substantially built by husband and the two teenage sons. Further, the court found that husband performed this work in addition to being fully employed, and that the wife was also employed outside the home while fully performing all of her duties as wife, mother, and homemaker, “but the court finds the husband should have a special equity of sixty percent interest in the home and the wife a forty percent interest.”

Appellant argues that the award of a special equity under these circumstances was erroneous under the principle outlined in Duncan v. Duncan, 379 So.2d 949 (Fla. 1980), and interpreted in McIntosh v. McIntosh, 393 So.2d 582 (Fla. 1st DCA 1981). Appellee contends that the special equity was appropriately awarded in recognition of husband’s extraordinary contribution to the acquisition of the home, relying on several authorities of which Tommaney v. Tommaney, 405 So.2d 454 (Fla. 2d DCA 1981), is representative. In addition, appel-lee asserts that considering the totality of the remedies afforded the wife, which included permanent alimony and child support, relief from certain bills, and payment of her attorney’s fees, the judgment should be affirmed.

While we agree with appellee that the overall scheme of division of resources was fair to both parties, the award of a special equity to husband must be reversed. “In its true sense, a ‘special equity’ is a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties.” Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). In McIntosh v. McIntosh, 393 So.2d 582 (Fla. 1st DCA 1981), the husband had physically built a home on ten of the eighty acres of land which had been deeded to the couple by his parents. The husband had provided for the financial needs of the family during the marriage and the wife had been a homemaker. Reversing the award of a special equity in the home to the husband, this court noted:

Between the working spouse and a homemaker, it is the normal duty of the working spouse to provide a marital home. Here, the husband chose to physically build the home and was free to do so because his wife maintained the household and performed child-rearing responsibilities. Thus there is insufficient evidence of a special contribution by the husband justifying an imposition of a special equity on the wife’s one-half of the marital homestead and remaining acreage.

In the instant case, the wife worked outside the home at various times, and she also was found to have fully performed her duties as wife, mother, and homemaker. While the husband invested his vacation and leave time in the building of the home, considering the relative contributions of the parties, this is not “one of the exceptional cases in which a special equity may rest upon an extraordinary contribution to the marriage.” Tommaney v. Tommaney, 405 So.2d 454, 456 (Fla. 2d DCA 1981).

Recognizing that the various awards made by the trial judge are interrelated, we REVERSE and REMAND for reconsideration of the final judgment in light of this opinion.

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

ON MOTION FOR CLARIFICATION

JOANOS, Judge.

Appellant has moved for clarification of this court’s opinion dated July 27, 1982, alleging uncertainty as to the authority of the trial judge to proceed with this case. While we found that the trial court had not erred in his resolution of certain aspects of the case, we did find error with regard to the award of a special equity to the husband. We concluded that, despite the fairness of the overall scheme of division of resources, since there had been a technical error as to the special equity, and the various awards made by the trial judge were interrelated, the case would be reversed and remanded for reconsideration of the final judgment. This means the trial court may reconsider the final judgment, as amended on rehearing before the lower court, with regard to all provisions for support, alimony, division of property and other financial arrangements, and attorney’s fees, because the various awards made by the trial judge were interrelated.

Appellant’s motion for clarification beyond that contained herein is denied.

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


author: DAUKSCH, Judge.

text:
    Roland TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 82-950.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1982.
    Rehearing Denied Sept. 10, 1982.
    Roland Terry, in pro. per.
    No appearance for appellee.
   DAUKSCH, Judge.

In this appeal from a denial of a motion for post conviction relief filed under Florida Rule of Criminal Procedure 3.850, the appellant alleges insufficiency of the evidence to convict for attempted armed robbery and kidnapping. Both of these allegations were raised on direct appeal wherein it was found that the conviction was supported by substantial, competent evidence. Terry v. State, 397 So.2d 1040 (Fla. 5th DCA 1981).

As to the allegation of ineffective counsel, appellant has failed to make a prima facie case showing that his counsel failed to render reasonably effective assistance of counsel to his prejudice as required by Meeks v. State, 382 So.2d 673 (Fla.1980).

Regarding the allegation that the trial court erred in failing to instruct the jury to disregard statements made by a state witness, this matter was reviewed on direct appeal and affirmed. Terry v. State.

In full consideration and review of appellant’s motion, this court finds appellant’s motion, records and files conclusively refute those claims of the appellant which could constitute grounds for relief, and therefore, the appellant’s Motion to Vacate and Set Aside Sentence or to Correct Sentence should be denied and the trial court’s Order should be

AFFIRMED.

ORFINGER, C.J., and COBB, J., concur.


text:
    Haydee GIESEKE, Petitioner, v. The Honorable Mel GROSSMAN, Judge of the Seventeenth Judicial Circuit In and For Broward County, Florida, Respondent.
    No. 82-159.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Rehearing Denied Sept. 21, 1982.

      S. Robert Zimmerman, Pompano Beach, for petitioner.
    Jim Smith, Atty. Gen. and Bruce D. Barkett, Asst. Atty. Gen., Tallahassee, for respondent.
    Dale R. Sanders of Lyons & Sanders, Chartered, Fort Lauderdale, for F. Gary Gieseke.
   PER CURIAM.

Petitioner seeks a writ of prohibition directing respondent to disqualify himself as judge. Respondent denied petitioner’s motion for disqualification concluding that petitioner’s motion was legally insufficient. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(3).

The petitioner, respondent wife in the dissolution proceeding below, filed a verified motion for disqualification of judge and substantiating affidavits as required by Section 38.10, Florida Statutes (1981). Petitioner’s motion alleged facts and stated that she feared that she would not receive a'fair trial because of respondent’s bias and prejudice.

We need only resolve one question: Does petitioner’s motion and supporting affidavits comply with the standards in Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981), and Florida Statute 38.10?

Rule 1.432(d), Florida Rules of Civil Procedure, provides that when a judge is confronted with a motion for disqualification:

The judge against whom the motion is directed shall determine only the legal sufficiency of the motion. The judge shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall enter an order of disqualification and proceed no further in the action.

In Hayslip v. Douglas, supra, this Court detailed the standards to determine the legal sufficiency of a motion for disqualification and the supporting documents:

First, the motion must be made by a party; it must be verified, and it must allege the facts relied upon to show the grounds for disqualification. Second, there must be a certificate by counsel of record indicating that the affidavit and application are made in good faith. Third, the operative facts in the party’s motion must be substantiated by at least two affidavits from reputable citizens of the county who are not related to the defendant or his attorney.
The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial. Brewton v. Kelly, [166 So.2d 834 (Fla. App.)] supra. As indicated by the court in State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938):
The test of the sufficiency of the affidavit is whether or not its content shows that the party making it has a well-grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind, and the basis for such feeling.... [The trial judge] cannot pass on the truth of the allegations of fact. If they are not frivolous or fanciful, they are sufficient to support a motion to disqualify on the ground of prejudice. Id. at 555-556.

We will first consider the sufficiency of the supporting affidavits filed by the petitioner. Respondent contends that the affidavits were legally insufficient because they contained information which af-fiants based partially on personal knowledge and partially on information furnished by the petitioner. If the affidavits contained no other information than that which had been furnished to the affiants by the petitioner, they would obviously be legally insufficient. Hahn v. Frederick, 66 So.2d 823 (Fla. 1953). However, the affidavits contained sufficient information based upon personal knowledge to support the petitioner’s motion. The fact that the affi-ants referred to information furnished by the petitioner should not operate to invalidate the affidavits sufficiency under Florida Statute 38.10.

It is well established that respondent’s adverse judicial rulings alone may not be the basis for disqualification of a judge for bias or prejudice. State ex rel. Locke v. Sandler, 156 Fla. 136, 23 So.2d 276 (1945); Wilson v. Renfroe, 91 So.2d 857 (Fla. 1957). However, the facts alleged in petitioner’s motion must be taken as true since the motion is supported with the documentation required by Florida Statute 38.-10. We believe the allegations of the petitioner’s motion and the supporting affidavits are sufficient to establish that the petitioner has a reasonable fear that she will not receive a fair trial before the respondent.

Lastly, the petitioner has shown good cause for the late filing of the motion for disqualification. In her motion, the petitioner explained that the facts giving rise to her fear that she would not receive a fair trial did not arise until after December 81, 1981. It is obvious that she could not have complied with the time requirement of Section 38.10, Florida Statutes, until she was confronted with sufficient facts to justify a reasonable fear that she could not obtain a fair trial before the respondent.

Since we have concluded that the petitioner’s verified motion and supporting documents meet the test of legal sufficiency, we grant and issue the writ of prohibition. We direct the respondent judge to recuse himself in this matter and we further instruct the Chief Judge of the Circuit Court for the Seventeenth Judicial Circuit to cause the case to be reassigned for trial. The writ of prohibition is granted.

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


text:
    Don F. STARK, Petitioner, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Melvin T. Goldberger, Regency Highland Associates, et al., Respondents.
    No. 82-785.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Rehearing Denied Sept. 20, 1982.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for petitioner.
    Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for respondents.
   PER CURIAM.

Petitioner, a witness in a Florida action between a condominium association and a developer, seeks a writ of certiorari quashing a discovery order. Petitioner is an accountant with the Memphis, Tennessee, branch of a national accounting firm. The parties to the litigation arranged for his voluntary deposition in Tennessee. Although the deposition was scheduled, and the witness resided, in Tennessee, neither party took steps to have a commissioner appointed or to have legal process issued and delivered under the provisions of the Uniform Foreign Depositions Act, Section 92.251, Florida Statutes (1981). During the deposition, which occurred without the issuance of a subpoena duces tecum, petitioner made reference to several documents concerning an audit of the condominium association. When asked to release all the documents in the audit file, petitioner agreed to release those documents to which he had referred, but refused to make available any of the audit department’s work papers or other documents. Three days .later (after notice by mail), the trial court in Florida granted a motion to compel the production of the documents in dispute. The order compelled the witness to deliver the documents within four days and stated that noncompliance would subject the witness to contempt proceedings in Florida. Neither the witness nor his counsel actually received the Notice of Hearing until after the fact, and we conclude the provisions of Rule of Civil Procedure 1.090(d) as to reasonable notice were clearly violated.

In this certiorari proceeding, petitioner argues that the trial court lacked jurisdiction over him. We agree. As noted above, neither party made any effort to comply with the Uniform Foreign Depositions Act. No commission ever issued out of any court, and no application was made to a Tennessee court for the process necessary to secure the attendance of the witness nor the production of the documents. Respondents would have us hold that by voluntarily attending a deposition in another state, petitioner submitted himself to the jurisdiction of the Florida courts. We decline to broaden the scope of in personam jurisdiction to encompass this situation. Even if the witness had submitted himself to the court’s jurisdiction, he was under no compulsion to produce any documents at the deposition absent a subpoena duces te-cum. We grant the writ of certiorari and quash the order compelling production.

WRIT GRANTED; ORDER QUASHED.

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


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Roy Ozzie BANKS, Appellee.
    No. 82-449.
    District Court of Appeal of Florida, Second District.
    July 28, 1982.
    Rehearing Denied Aug. 25, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

The state appeals an order dismissing the indictment against appellee Roy Ozzie Banks. We reverse.

Appellee was arrested on September 3, 1981, and was subsequently indicted for first-degree murder.

Appellee made numerous demands for discovery beginning as early as September 29, 1981. The first response the state made to any of appellee’s demands for discovery came on January 4, 1982. Amended discovery responses were filed on February 5, 1982, and February 10, 1982.

Appellee filed six motions to dismiss the indictment against him, the second and fifth of which were granted, resulting in the order of dismissal now being appealed. Both of the motions which the trial court found to have merit were filed on February 22, the date originally set for trial, and were heard the following day.

The second motion to dismiss alleged that in spite of appellee’s demands for discovery, appellee did not learn until February 18, 1982, when he deposed Stephen B. Edwards of the Tampa Police Department, that a .22 caliber revolver was found on the victim’s person after he was shot.

The fifth motion to dismiss alleged that the state failed to supply appellee with the names of Larry Bowman, Joe Mack, Reggie House, and Clarence, all of whom were alleged witnesses to the shooting, and that appellee did not become aware of these witnesses until he deposed Leroy D. Black of the Tampa Police Department on February 18, 1982. The motion further alleged that appellee became aware of three other witnesses allegedly present when the shooting occurred who were not listed by the state in discovery, Cedric A. Jones, James Brown, and a black female whose last name was Mack, when appellee deposed Ed Won-ka, an investigator with the state attorney’s office, on February 19, 1982.

The state’s response to the latter motion was that it had not been able to ascertain whether the alleged witnesses were real people or had relevant information. Appel-lee responded that he should have been given the chance to find these people and learn whether they had pertinent information.

While the state’s failure to provide appellee with the information in question may have constituted a violation of the discovery rules, it does not appear that the violations were wilful. More important, and controlling here, is the fact that appel-lee became aware of the information on February 18, 1982. Prejudice does not result where the defendant obtains the information through other means. Sireci v. State, 399 So.2d 964 (Fla. 1981).

Appellee argued, however, that since trial was scheduled for February 22, 1982, he was prejudiced in that he did not have time to locate these witnesses and prepare for the impact of their possible testimony. We disagree. As we stated in State v. King, 372 So.2d 1126, 1128 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 758 (Fla. 1980):

While a trial court has the authority to dismiss a cause as a sanction for failure to comply with a court order or for violation of a discovery rule, Fla. R. Crim. P. 3.220(j), State v. Oliver, 322 So.2d 638 (Fla. 3d DCA 1975), the dismissal of charges against a defendant is an extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result. State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977).

Accord, State v. Perez, 383 So.2d 923 (Fla. 2d. DCA 1980). Here the speedy trial time did not expire until March 2, 1982, so that, as in State v. Lowe, 398 So.2d 962 (Fla. 4th DCA 1981), a continuance was a viable alternative, since appellee would have had seven days from the date of the hearing on his motions to dismiss to further prepare for trial, in addition to the five days from the date the information became known to appellee to the date of the hearing.

We are aware that, unlike in Lowe, where the state suggested a continuance, not only was no such suggestion made here, but the prosecutor had flatly stated the day before the hearing that he was opposed to a continuance for any reason. However, it is probable that he was not contemplating the alternative of dismissal at the time he made that statement and would not have been so adamant the day of the hearing had the trial court then questioned his resolve. In any event, the authority to continue a case rests solely in the court, which may impose a continuance over the objection of either party. Furthermore, the trial courts are or should be well aware of the availability of a continuance under proper circumstances, so that a continuance does not cease to be a viable alternative merely because the prosecutor fails to suggest it.

Consequently, we hold that the trial court here abused its discretion in dismissing the indictment against appellee, a continuance being at least one viable alternative under the circumstances.

Accordingly, the order dismissing the indictment against appellee is REVERSED and the cause REMANDED for further proceedings.

RYDER and CAMPBELL, JJ., concur.


author: McCORD, Judge.

text:
    GABLE ROOFING and Risk Management Services, Inc., Appellants, v. Louis JEANOVILLE and Division of Workers’ Compensation, Appellees.
    No. AH-475.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Rehearing Denied Sept. 21, 1982.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.

      Joseph A. Murphy, III of Allen & Murphy, Fort Lauderdale, for appellees.
   McCORD, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding ap-pellee temporary total disability benefits, ordering an orthopedic evaluation of appel-lee, and reserving jurisdiction to enforce the order. We reverse.

Appellee injured his back and suffered a hernia in a work-related accident on February 12, 1980. From that date until the time of the hearing before the deputy commissioner, appellee worked in several jobs, most of which he was able to perform despite his injuries. The deputy commissioner’s finding that appellee was temporarily totally disabled from May 20, 1980, until October 22, 1981, clearly was error since appellee was able to, and in fact did, work during that period. Since appellee earned less in those jobs than he had earned prior to his injury, the record probably would support a finding of temporary partial disability. Therefore, we reverse the award of temporary total disability and remand to the deputy commissioner for consideration of whether appellee was temporarily partially disabled.

In her order, the deputy commissioner, without explanation and with no apparent basis, directed appellants to select three orthopedic specialists from which appellee is to select one to perform an orthopedic evaluation upon appellee. That portion of the order is without sufficient foundation since it has no apparent relationship to any issue remaining before the deputy commissioner. Therefore, it is hereby stricken.

The deputy commissioner’s reservation of jurisdiction to enforce her order is also reversed. Enforcement of a deputy commissioner’s order is exclusively within the jurisdiction of the circuit court. § 440.-24(1), Fla. Stat.

REVERSED and REMANDED for entry of an order consistent with this opinion.

SHIVERS and JOANOS, JJ., concur.


text:
    Lottie JUARA, as personal representative of the Estate of Miguel Juara and Lottie Juara, individually, and Kathy Mullen, a single woman, Appellants, v. GREINER ENGINEERING SCIENCES, INC., Appellee.
    No. 81-1842.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 24, 1982.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellants.

      Peters, Pickle, Flynn, Niemoller, Stieglitz & Downs and Nancy Schleifer and William J. Flynn, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Finding that the defendant Greiner Engineering Sciences, Inc. has not carried its burden of conclusively showing the absence of a genuine issue of material fact as to its negligence in designing the median, or alligator island, adjacent to a tollbooth area on the Homestead Extension of the Florida Turnpike, and that a jury question is presented as to whether the harm caused the plaintiffs by the intervening force of a high-speed driver hitting the alligator island and being vaulted into a vehicle occupied by the plaintiffs was a reasonably foreseeable consequence of the design of the island, Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla. 1980); Leib v. City of Tampa, 326 So.2d 52 (Fla. 2d DCA 1976), we reverse the summary judgment entered in favor of Greiner.

Reversed and remanded.


text:
    Ronald JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1906.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 28, 1982.
    Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Defendant Ronald Johnson challenges his convictions for second-degree murder and unlawful possession of a firearm for which he received a sentence of thirty years imprisonment. He contends the trial court erred in denying his motions for mistrial and new trial. In his motions, Johnson argued that the state utilized its peremptory challenges to exclude all prospective black jurors and thereby deprived him of due process of law.

In this appeal defendant Johnson contends that the prosecutor’s actions “may” have been racially motivated; however, the record before us“does not contain the information required to support his assertion. We have reviewed the proceedings in the trial court and are forced to conclude that it would be inappropriate for us to decide on the bare record before us whether or not defendant Johnson’s contentions have merit.

The first defect in the record is the absence of evidence describing the composition of the jury. Next, we find that defendant’s appellate brief refers to the prosecutor’s prior similar conduct, but fails to disclose whether this information was presented to the trial court as required under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Next, defendant cites as error the trial court’s denial of his motion for additional peremptory challenges; however, he fails to apprise us of the number of peremptory challenges he exercised. Finally, we note that, although in the trial court Johnson based his argument solely upon Swain and the denial of equal protection under the Fourteenth Amendment, he now relies upon additional authorities which construe the rights to a fair trial under state and federal constitutions.

Because the record presented to us is inadequate to serve as a predicate for reevaluation of the peremptory challenge system, we leave for future determination concerns relating to the permissible scope of the exercise of peremptory challenges. The question of whether systematic exclusion of a cognizable group violates the right to a fair trial, guaranteed by the Sixth Amendment to the United States Constitution and the Florida Declaration of Rights, Article I, section 16 of the Florida Constitution, merits decision upon a complete record. See People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978); People v. Smith, 91 Ill.App.3d 523, 47 Ill.Dec. 1, 414 N.E.2d 1117 (1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (1981). The law presumes that proceedings have been validly conducted unless otherwise shown and defendant has failed to meet that burden.

The remaining arguments do not merit reversal.

For these reasons, we affirm the convictions and sentence.

      . MR. QUINON [for the state]: I want the record also to reflect Mr. Ebanks is a black man. He’s on the jury.
      MR. ROSENBLATT: I don’t think necessarily he’s black. He’s more Bahamian.
      MR. QUINON: Maybe we’ll ask for his roots when we’re finished.


text:
    Gregorio DIAZ, Appellant, v. Lynne DIAZ, Appellee.
    No. 81-2209.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 27, 1982.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Amador & Dienstag and Mark Dienstag, Miami, for appellee.
    Before HUBBART, C. J., BASKIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

The appellant, Gregorio Diaz, appeals a final judgment dissolving his marriage to Lynne Diaz and requiring him to pay $40 per week for support of the minor child of the parties. He was the petitioner and is well pleased with the dissolution of the marriage and with the provision granting to him reasonable rights of visitation with the child. The child was six months of age at the time of the filing of the petition. He resides with his mother in Southampton, England.

The sole point presented on the appeal is that the trial court erred when it ordered the father to pay child support when no evidence was presented as to the needs of the child or the father’s ability to support the child. See Page v. Page, 371 So.2d 543 (Fla. 3d DCA 1979).

We commend the trial judge upon the exercise of judicial conscience. The granting of a judgment dissolving a marriage is not a ministerial act. If it were, it could be signed by the clerk. A spouse who invokes the jurisdiction of a court of equity to resolve his or her marital difficulties must submit to the equitable doctrine that he who seeks equity must stand before the court with “clean hands” and “he who seeks equity must do equity.” Williamson v. Williamson, 367 So.2d 1016 (Fla.1979).

In the instant case, the trial court correctly applied the above principles but failed to require the inclusion in the record of evidence upon which it could properly exercise its discretion in the matter of child support. See Yontz v. Yorkunas, 358 So.2d 91 (Fla. 2d DCA 1978). Where there is such an insufficiency of evidence on some material point as to prevent the entry of a just decree, and it appears from the record that the required evidence is available, the cause may be remanded with directions to take further evidence on that point. Chapman v. St. Stephens Protestant Episcopal Church, Inc., 105 Fla. 683, 145 So. 757 (1933); Fuller v. Fuller, 23 Fla. 236, 2 So. 426 (1887); Atlantic & Gulf Properties, Inc. v. Palmer, 109 So.2d 768 (Fla. 3d DCA 1959). We, therefore, reverse the judgment and remand the cause with directions that prior to the entry of judgment, the trial court shall require the introduction of evidence as to the needs of the minor child and the petitioner’s ability to pay.

Reversed and remanded.


author: HENDRY, Judge.

text:
    Marc RUBIN, Appellant, v. Madeline RUBIN, Appellee.
    No. 81-2234.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 24, 1982.

      Harvey D. Rogers, Miami, for appellant.
    Joel V. Lumer, Miami, for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Marc Rubin, appeals from an order holding him in contempt for failure to pay $13,500 in child support and alimony arrearages, denying his petition to modify the terms of the final judgment of dissolution incorporating a property settlement and child custody agreement entered into by the parties, and awarding appellee medical expenses, a motor vehicle and attorney’s fees.

* That portion of the trial court’s order holding appellant in contempt and providing for his incarceration in the event the arrearages are not paid, is affirmed. The order contains the requisite finding that appellant wilfully failed to make such payments despite his then-present ability to do so, Garo v. Garo, 347 So.2d 418 (Fla.1977); Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976); Halpern v. Halpern, 384 So.2d 889 (Fla. 3d DCA 1980); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1199 (Fla.1980); Adams v. Adams, 357 So.2d 264 (Fla. 3d DCA 1978), a finding supported by the evidence, and provides that appellant may purge himself of the contempt by payment of his outstanding obligations. Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979).

Nor do we find any abuse of discretion in the trial court’s denial of appellant’s petition for modification of the final judgment on the basis that there is no credible evidence that circumstances had substantially changed to justify modification. In fact, as the trial court found and the record affirms, appellant’s monetary position has improved since the settlement agreement was entered into as demonstrated by his own testimony and financial affidavit. Thus, appellant has not met the heavy burden required to modify an alimony and child support obligation based on an agreement between the parties. O’Brien v. O’Brien, 407 So.2d 374 (Fla. 1st DCA 1981); Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981); Floyd v. Floyd, 393 So.2d 22 (Fla. 2d DCA 1981).

Lastly, no reversible error has been demonstrated in the trial court’s enforcement of provisions of the final judgment concerning medical expenses and an automobile for appellee, nor the attorney’s fee award to appellee at the contempt proceedings.

Affirmed.


text:
    Judson Limuel BURKHART, Appellant, v. Arenda Joyce BURKHART, Appellee.
    No. 81-2271.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 22, 1982.
    Richard H. W. Maloy & Associates and Richard H. W. Maloy, Coral Gables, Kevin A. Anderson, Hialeah, for appellant.
    Payton & Rachlin and Andrew Joshua Markus, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We find error only in that part of the final judgment of dissolution which awarded the wife permanent periodic alimony. The record reflects that the wife is a thirty-year-old woman, in good health. While her only employment during this twelve-year marriage was for a brief period near the time of the parties’ separation, she admittedly possesses secretarial and clerical skills, is willing and able to work, and is capable of earning from her labor funds sufficient to support herself. Under these circumstances, which are not a matter of dispute, rehabilitative, rather than permanent, alimony is the appropriate award.

Affirmed in part; reversed in part, and remanded with directions to vacate the award of permanent alimony and award rehabilitative alimony in an amount and for a period of time to be determined by the trial court.


text:
    Ray E. MILLETT, Jr., Appellant, v. Demetrio PEREZ, Appellee.
    No. 81-2349.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 24, 1982.

      Brian M. Mark, Ronald Silver, Miami, for appellant.
    Maurice Rosen, North Miami Beach, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Since Perez was in default under the mortgage by failing to pay property taxes for four successive years, Millett, by the filing of a foreclosure action, exercised his option to accelerate the mortgage debt before any tender of the amounts due under the mortgage, that is, the amounts which Millett paid to redeem the tax certificates. Kreiss Potassium Phosphate Company v. Knight, 98 Fla. 1004, 124 So. 751 (1929); Corlett v. Wood, 81 Fla. 510, 88 So. 268 (1921); Prince v. Mahin, 73 Fla. 525, 74 So. 696 (1917); Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970). Perez’s argument against foreclosure was that because the mortgagee had not only the option to foreclose, but the option to pay overdue taxes and demand payment therefor, without waiving his right to foreclose, Perez was entitled before the foreclosure action was instituted to be notified by Millett that he intended to foreclose.

We agree with Millett that the law does not require a mortgagee to notify a mortgagor of his intent to exercise his option prior to instituting a foreclosure suit, but requires only that the option be exercised, as it was here, prior to tender of amounts due from the mortgagor. A mortgagee simply has no duty to give a mortgagor an opportunity to cure a default. Motel Management Company, Inc. v. Winger, 335 So.2d 9 (Fla. 4th DCA 1976); Campbell v. Werner, supra, at 257.

Therefore, since there exist no equitable grounds which would support the trial court’s denial of the mortgagee’s contractual right to acceleration and a judgment of foreclosure in his favor or its corollary judgment allowing the mortgagor to cure the default by reimbursing the mortgagee, we reverse the final judgment entered by the trial court with directions that final judgment of foreclosure be entered in favor of Millett. See Scarfo v. Peever, 405 So.2d 1064 (Fla. 5th DCA 1981); Heimer v. Albion Realty and Mortgage Company, 300 So.2d 31 (Fla. 3d DCA 1974).

Reversed and remanded with directions.


author: FERGUSON, Judge.

text:
    Marion W. BOWERS and Sandra Bowers, his wife, Appellants, v. Fernando A. MEDINA and Mirna Medina, his wife, Appellee.
    No. 81-2758.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 24, 1982.

      Herman T. Isis, Coral Gables, for appellants.
    Stabinski & Funt and Christina de Oli-veira, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   FERGUSON, Judge.

Appellants bring this appeal from a Final Judgment ordering specific performance of a contract to sell their residential home for $45,000.00. By terms of the contract appel-lee-purchasers were to pay a deposit of $4,500.00 and obtain a FHA mortgage loan for the balance of $40,500.00. Appellees paid the deposit but were prevented by appellants from performing their remaining obligation; appellants refused to make the property available for the appraisal which was a prerequisite to the FHA loan commitment.

An established contract principle is that a party’s good-faith cooperation is an implied condition precedent to performance of the contract; where that cooperation is withheld, the recalcitrant party is estopped from availing himself of his own wrong doing. Holston v. Bernal, 407 So.2d 332 (Fla. 3d DCA 1982); Fernandez v. Vasquez, 397 So.2d 1171 (Fla. 3d DCA 1981); Waters v. Key Colony East, Inc., 345 So.2d 367 (Fla. 3d DCA 1977).

The trial court was also correct in rejecting the defense that without the funds to pay the full purchase amount ap-pellees were not ready, willing and able buyers. In equity the requirement of a tender of purchase money means a readiness, willingness, and ability in good faith to perform the acts required by terms of the agreement provided the other party will concurrently do the things which he is required by the contract to do, and notice by the former to the latter of such readiness, willingness and ability. Martin v. Albee, 93 Fla. 941, 113 So. 415 (1927); 330 Michigan Avenue, Inc. v. Cambridge Hotel, Inc., 183 So.2d 725 (Fla. 3d DCA 1966). Appellees had continually asserted a readiness, willingness and ability to obtain the loan required by the contract.

Appellant’s remaining points are without merit.

Affirmed.

      . Appellees had previously obtained a firm FHA commitment which expired while appellants were in litigation to remove an encumbrance on title.