author: PER CURIAM. HERSEY, Judge,

text:
    Melvin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-2011.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Rehearing Denied Aug. 20,1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on the authority of Richardson v. State, 246 So.2d 771 (Fla.1971) and Gumbie v. State, 345 So.2d 1061 (Fla.1977).

On the third day of trial the state notified the appellant for the first time of a witness who subsequently testified in the state’s behalf about statements made by the appellant immediately after the crime in question took place. The state utilized this testimony not only to establish its case against appellant but also to negate appellant’s defense of temporary insanity. When the state initially advised appellant of the existence of the witness the prosecutor also stated that he did not then plan to have the witness testify. In open court the prosecutor stated he did not intend to call the witness during the state’s presentation of its case. Subsequently, however, the state did call the witness in its case-in-chief and the witness was allowed to testify over appellant’s objection that the state had violated the rules of criminal procedure by failing to list this witness during pretrial discovery.

The holding of Richardson has recently been succinctly explained by Judge Hersey in the case of Carroll v. State, 414 So.2d 247 (Fla. 4th DCA 1982):

We have concluded that the per se reversible error rule of Richardson v. State, supra, requires that we award appellant a new trial. We do so with great reluctance.
The proffered evidence appears to have little if any probative value. Surely the photograph of an empty truck lends absolutely nothing to appellant’s defense. The second photograph, showing a truck’s dashboard in which is a gaping hole, once the supposed repository of a radio, lends credence to appellant’s story only if supported by a string of inferences which stretch so thin as to endanger if not to destroy fundamental concepts of relevance. At best the culminating inference is cumulative. Thus, if exclusion had been based upon a rule of evidence, it is doubtful if error could have been shown and it is certain that prejudice could not have been shown. At worst, any error would have been considered harmless.
Because of the serious consequences of a violation of the Richardson rule a word about its appropriate application seems in order. Initially the rule was formulated to ensure fairness to a defendant in a case in which the state had violated a discovery rule. In a case in which the trial court refused to exclude states’ witnesses whose names had not been disclosed to the defense despite defendant’s activation of then Rule 1.220(e) of the Florida Rules of Criminal Procedure (now Rule 3.220), this Court held that refusal to impose the sanction of exclusion was not per se reversible error. However, said Judge Owen, while the matter is discretionary
[I]f ... it is brought to the attention of the trial court that the state has failed to comply with Rule 1.220(e) CrPr, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.
Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970). This language was quoted with approval by the supreme court in Richardson and the rule was instituted that failure to conduct such an inquiry constituted per se reversible error.

The trial court here, contrary to the holding in Richardson, supra, failed to conduct an inquiry into the circumstances of this discovery violation to determine the potential prejudicial effect upon the appellant of allowing such a surprise witness to testify. In Cumbie the Supreme Court held that in such instances a defendant is entitled to a new trial.

Accordingly, this cause is reversed and remanded for a new trial.

ANSTEAD and HURLEY, JJ., concur.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

There is no longer room for doubt that a discovery violation mandates a Richardson inquiry and that failure of the trial court to conduct an inquiry where a violation has occurred is per se reversible error. See, e.g., Carroll v. State, supra. The difficulty I have with the majority opinion is its initial premise that a discovery violation occurred in this case.

The record discloses that discovery proceeded in due course before trial. Then, on September 4, 1980, the third day of trial, the state learned that appellant’s brother-in-law, Edward Lee Jordan, had certain information relevant to the issues being tried. Accordingly, and on the same day that the state learned of the existence of this witness, the following discussion took place, as evidenced by the record.

STATE ATTORNEY: Your Honor, I have two matters to handle. One, I called Mr. Hitchcock (defense attorney) this afternoon and informed him that there was going to be an amended answer to discovery. There is a lab report. I explained to him what the lab report had to say and he now knows about it. I will give him a copy of it. I had a discussion with an individual by the name of Edward Jordan, who apparently received a couple of phone calls from the defendant and I told Mr. Hitchcock what Edward Jordan told me about the phone calls.
I believe Mr. Hitchcock is satisfied with that representation. He knows Mr. Jordan is available to him if he wants to depose him or wishes to talk with him. I don’t think there is any objection to amending discovery at this time.
DEFENSE ATTORNEY: Your Honor, Mr. Zloch also stated to me he had no intention of calling him; is that correct? STATE ATTORNEY: Depending on how the trial goes. If he becomes very relevant during trial, then I will definitely inform my friend. I won’t be calling him in my case in chief.
THE COURT: You are placing the Court and the Record and Mr. Hitchcock on notice of the existence of this witness that the State now has amended its discovery relative to this.
STATE ATTORNEY: I can also state that this individual lives in Alabama. When I first found out this morning, right after talking to the individual, I talked to Mr. Hitchcock. When I first found out about it that he knew anything.

Rule 3.220(a)(1) of the Florida Rules of Criminal Procedure requires that the state disclose to the defense the names of State witnesses where that information is “within the State’s possession and control.” There was obviously no “violation” of that aspect of the rule because the state did not initially know of the existence of the witness. Rule 3.220(f) provides:

(f) Continuing Duty to Disclose. If, subsequent to compliance with the rules, a party discovers additional witnesses or material which he would have been under a duty to disclose or produce at the time of such previous compliance, he shall promptly disclose or produce such witnesses or material in the same manner as required under these rules for initial discovery.

Again the record is clear that the state adhered to the spirit as well as the letter of the rule. Only the lapse of a few hours separated receipt by the state of knowledge of the existence of this witness and full disclosure to the defense, not only of the witness’s name but also the information about which he could be expected to testify. This could hardly be denominated a “violation.”

Nor does the fact that the state called the witness in its case in chief as opposed to using him for rebuttal, after having initially indicated a contrary inclination, have any bearing on the issue. It is clear that the existence and name of the witness and the substance of the testimony he would give were disclosed to the defense at an early and eminently reasonable time. In what manner or at what time he was to be used is of little consequence to the defense in making a determination as to what steps should be taken in order to be prepared for his testimony. The point is that the defense knew the witness might be called some time during the trial and the defense knew precisely what his testimony would be.

The rationale of Richardson nevertheless would appear to mandate an inquiry in such situations. While not, strictly speaking, a “violation” of the discovery rules, only by making a Richardson inquiry may the trial court make a determination of the extent and effect of prejudice where the state discovers and attempts to use evidence, in whatever form, on the eve of trial. Mindful of the admonition that hard facts make bad law, I join in the majority opinion that an inquiry was required because that result is responsive to the aspirations of the Richardson rule. As applied to the present case, however, and in view of the fact that there was no “violation” of the discovery rules, I do not believe reversal is either appropriate or dictated by Richardson. The result of applying the per se reversible error rule here is particularly unsavory in light of the factors which clearly evidence lack of prejudice, such as: the evidence consisted of two telephone conversations to which appellant himself was a party and he therefore could not be “surprised” by the testimony; appellant had three or four days after being apprised that the witness would be called to interview him or to take his deposition which he made absolutely no attempt to do; appellant made no objection at the time the state amended its discovery to add the witness but waited until the witness was called to register an objection; appellant never asked for a continuance or any other assistance from the court in order to meet the adverse testimony; and finally, common sense dictates that, on these facts, no amount of advance notice would have made any difference to appellant’s case. I would therefore hold that, while a Richardson type inquiry is appropriate where the state seeks to amend discovery on the eve of or during trial, the per se reversible error rule does not apply where no violation of the discovery rules is demonstrated and I would certify that question to the Supreme Court as one of great public importance.

For the foregoing reasons, I respectfully dissent.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    John C. NEFF, Appellant, v. Milton ADLER and Martin L. Carlin, Appellees.
    No. 80-2129.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Don A. Lynn and Gregory P. Borgognoni of Shutts & Bowen, Miami, for appellant.
    William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

In 1977 appellees obtained a final judgment in Broward County against John C. Neff, Trustee, and other joint venturers for a brokerage commission, which we subsequently affirmed in Neff v. Adler, 362 So.2d 300 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1371 (Fla.1979). The judgment was not against Neff individually.

Appellees first unsuccessfully sought to have the courts of Tennessee, where Neff resided, enforce the judgment against his personal estate. The Tennessee Court of Appeals affirmed the Chancellor’s order limiting recovery to the trust estate. Thereafter, appellees tendered Neff interrogatories in aid of execution. In his answers, Neff, who used a Nashville, Tennessee, address, stated he was the trustee, set-tlor, and beneficiary of the trust when it was created in Nashville in 1972. The other settlor and beneficiary was a resident of Fort Lauderdale, Florida. The trust or trustee, Neff said, received sums totaling $93,222.22 from the joint venture in Florida real estate of which he, as trustee, was a joint venturer. These sums he said he distributed to himself and the other beneficiary in late 1973 and early 1974 while he acted as trustee. He stated he had no knowledge of appellees’ claim for a brokerage commission until after the distributions had been made.

At that point, appellees filed, in the Bro-ward County action wherein the judgment had been obtained, a motion to set aside the distributions to the two beneficiaries as fraudulent conveyances, a motion to determine effect of judgment and a motion to implead Neff and the other beneficiary individually. The trial court granted the motion to implead, directed appellees to serve appellant with copies of the order and the three motions and gave appellant twenty days after service in which to respond. Appellant was personally served and timely filed a corrective motion to quash service of process and dismiss for lack of jurisdiction over his person. Subsequently he filed a supplemental affidavit, which was not an affidavit because it contained an acknowledgment, not a jurat. The trial court denied appellant’s motion and this appeal followed.

The transcript of the hearing reflects the parties respectively were arguing apples and oranges. Appellees relied upon Taylor v. Richmond’s New Approach Association, 351 So.2d 1094 (Fla. 2d DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978), which dealt with the personal liability of trustees. Jurisdiction was never at issue in that case because the appellants were sued individually and as trustees. Neff relied upon this court’s decision in A. B. L. Realty Corp. v. Cohl, 384 So.2d 1351 (Fla. 4th DCA 1980), and maintained appellees had not alleged sufficient facts in their three motions upon which the trial court could base an order acquiring personal jurisdiction over him.

Appellees contend that what occurred in the trial court was “part of the proceedings supplementary begun against Neff and his partners,” presumably pursuant to section 56.29, Florida Statutes (1979). Regarding that section, Judge Scott, in Mission Bay Campland, Inc. v. Sumner Financial Corp., 71 F.R.D. 432, 434-435 (M.D.Fla.1976), eruditely stated:

Under the decisional law interpreting and applying the provisions of Florida Statutes Sec. 56.29, there are two jurisdictional prerequisites for supplementary, postjudgment proceedings: (1) a returned and unsatisfied writ of execution; and (2) an affidavit averring that the writ is valid and unsatisfied, along with a list of third persons to be impled. Tomayko v. Thomas, 143 So.2d 227, 229-30 (3d D.C.A. Fla.1962). Once those jurisdictional criteria are met, however, the “statute should be given a liberal construction so as to afford to the judgment creditor the most complete relief possible.” Richard v. McNair, 121 Fla. 733, 164 So. 836, 840 (1935); Ryan's Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483, 487 (1935); General Guaranty Ins. Co. of Fla. v. DaCosta, 190 So.2d 211, 213 (3d D.C.A. Fla. 1966). Defendant in this case has filed with the Court his unsatisfied writs of execution and garnishment, as well as his affidavit that those writs are valid and remain unsatisfied.
The authority and duty of the Court to implead third persons is past question. Richard v. McNair, 121 Fla. 733, 164 So. at 840. Impleading those persons whose interest may be affected by the Court’s rulings is necessary both to acquire jurisdiction over them, and to afford them the essential elements of procedural due process. Id., 121 Fla. 733, 164 So. at 840, 841; Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. at 487, State ex rel. O’Dare v. Kehoe, 189 So.2d 268, 269 (3d D.C.A.Fla.1966); Tomayko v. Thomas, supra, 143 So.2d at 229; Florida Guaranteed Securities, Inc. v. McAllister, 47 F.2d 762, 765 (S.D.Fla.1931). Such impleading, however, does not imply liability on the part of the implied [sic] third persons. General Guaranty Ins. Co. of Fla. v. DaCosta, 190 So.2d at 214. It provides them with an opportunity to raise their defenses and protect their interests in a forum of genuine due process. Id.; Tomayko v. Thomas, 143 So.2d at 229, 230. The fundamentals of procedural due process are (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case. Goss v. Lopez, 419 U.S. 565, 578-79, 95 S.Ct. 729 [738], 42 L.Ed.2d 725 (1975); Fuentes v. Shevin, 407 U.S. 67, 80-82, 92 S.Ct. 1983 [1994-1995], 32 L.Ed.2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011 [1020], 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. 1820 [1823], 23 L.Ed.2d 349 (1969) (Harlan J., concurring); Schrank v. Bliss, 412 F.Supp. 28, 41 (M.D.Fla.1976); Harper v. Cooper, 226 So.2d 878, 880 (4th D.C.A.Fla.1969). The burden of proof reposes upon the judgment creditor to prove his claim to have judgment entered against the impled third parties, as if it had been entered against them personally in the original final judgment. Riley v. Fatt, 47 So.2d 769, 773 (Fla.1950).
Consequently, the Court will grant defendant’s motion to implead the corporate nonparties listed in its affidavit; and the Court will order those corporate third persons to show cause why the assets now in their possession or control, allegedly transferred to them by plaintiff, should not be declared fraudulently acquired, the transfers voided, and those assets levied upon to satisfy defendant’s judgment.

See also Puzzo v. Ray, 386 So.2d 49 (Fla. 4th DCA), pet. for rev. denied, 392 So.2d 1378 (Fla.1980), and Robert B. Ehmann, Inc. v. Bergh, 363 So.2d 613 (Fla. 1st DCA 1978).

Of course, all of the foregoing can be accomplished neatly if the judgment debtor and impled third parties are Florida residents. We can go further and extend the availability of the proceedings if a non-resident transferee of a fraudulent conveyance commits a tort in Florida in connection therewith. Section 48.193(l)(b), Florida Statutes (1979), expressly would subject the non-resident to the jurisdiction of Florida courts for the commission of a tortious act within the state.

Here, the trial court, with continuing jurisdiction over Neff as trustee, impled him individually. Yet the court had no pleadings before it which alleged Neff to be a Florida resident or that he, as an individual and non-resident, committed a tortious act in this state. We held in Cosmopolitan Health Spa, Inc. v. Health Industries, Inc., 362 So.2d 367, 368 (Fla. 4th DCA 1978):

In order to allow the assertion of in personam jurisdiction over a defendant outside the territorial reach of the courts of this state, a burden is imposed on the plaintiff to plead sufficient material facts to establish a basis for the exercise of such jurisdiction. If such jurisdiction over the person of the defendant is properly challenged by affidavit, the plaintiff must sustain its assertions by affidavit or other proof and may not rely on a mere reiteration of the allegations contained in the complaint. Georgia Savings and Loan Service Corp. v. Delwood Estates, Inc., 315 So.2d 237 (Fla. 1st DCA 1975). See also Dublin Company v. Peninsular Supply Co., 309 So.2d 207 (Fla. 4th DCA 1975).

(Emphasis added). See also Wynn v. Aetna Life Insurance Co., 400 So.2d 144 (Fla. 1st DCA 1981). We believe section 56.29 must be read in pari materia with section 48.193.

Appellees have failed to sustain their initial burden of pleading sufficient material facts to establish a basis for the exercise of the trial court’s jurisdiction over appellant. Therefore, we reverse the trial court’s order denying appellant’s motion and remand with directions to enter an order granting same.

DOWNEY and ANSTEAD, JJ., concur.

      . The motion to implead was filed pursuant to Florida Rule of Civil Procedure 1.210(a) which provides in part:
      Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause.
      The entire content of the motion was as follows:
      Plaintiffs, MILTON ADLER and MARTIN L. CARLIN, move to join John C. Neff, individually, and M. James Shaw, individually, pursuant to Rule 1.210 and show the Court that John C. Neff and M. James Shaw are indispensable parties to plaintiffs’ Motion to Set Aside a fraudulent conveyance since they, in their individual capacities, were the recipients of the trust assets which were fraudulently disbursed. It is necessary that they be joined in this action in order that the Court have jurisdiction over them.

      . The Tennessee notary public merely certified that appellee, known by him to be the person described in the instrument and who executed it, appeared before him and acknowledged that he executed it. See sections 92.50, 92.51 and 695.25, Florida Statutes (1979). The required jurat would have been the certificate of the notary public, before whom the affidavit was sworn, that it was sworn before him. See again sections 92.50 and 92.51 as well as 5 Bigham, Tennessee Practice § 1115. The difference between swearing to the truth and acknowledging execution is patent.

      . Section 56.29 provides in part:
      (1) When any sheriff holds an unsatisfied execution, the plaintiff in execution may file an affidavit so stating and that the execution is valid and outstanding and thereupon is entitled to these proceedings supplementary to execution.
      (5) The judge may order any property of the judgment debtor, not exempt from execution, in the hands of any person or due to the judgment debtor to be applied toward the satisfaction of the judgment debt.
      [6](b) When any gift, transfer, assignment or other conveyance of personal property has
      been made or contrived by defendant to delay, hinder or defraud creditors, the court shall order the gift, transfer, assignment or other conveyance to be void and direct the sheriff to take the property to satisfy the execution. This does not authorize seizure of property exempted from levy and sale under execution or property which has passed to a bona fide purchaser for value and without notice. Any person aggrieved by the levy may proceed under ss. 56.16-56.20.
      (9) The Court may enter any orders required to carry out the purpose of this section to subject property or property rights of any defendant to execution.

      . Sections 48.193(1), (l)(b) and (2) provide:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      (b) Commits a tortious act within this state.
      (2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state.
      Section 48.194 provides:
      Personal service outside state. — Service of process on persons outside of this state shall be made in the same manner as service within this state by an officer authorized to serve process in the state where ■ the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.
      Appellant was apparently served in accordance with section 48.194.

      . See Coral Contractors, Inc. v. Paul, 387 So.2d 554 (Fla. 5th DCA 1980).


text:
    INDUSTRIAL BUILDERS, INC., Sergio Novo, Dania Novo, Errol Portuondo and Rosa Portuondo, Appellants, v. HERITAGE INSURANCE COMPANY OF AMERICA, a foreign corporation, Chick’N Haven, Inc., a Florida corporation and Rinker Materials Corporation, a Florida corporation, Appellees. HERITAGE INSURANCE COMPANY OF AMERICA, Appellant, v. INDUSTRIAL BUILDERS, INC., Sergio Novo, Dania Novo, Errol Portuondo and Rosa Portuondo, Appellees.
    Nos. 81-104, 81-117.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Gary I. Zwickel of Zwickel, Gross & Kes-sler, Lake Worth, for Industrial Builders, Inc., Sergio Novo, Dania Novo, Errol Por-tuondo and Rosa Portuondo.
    Alan C. Brandt, Jr., of Chappell, Brandt & Gore, P. A., Fort Lauderdale, for Heritage Ins. Co. of America.
    W. Peter Burns of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for Chick’N Haven, Inc.
   GLICKSTEIN, Judge.

Appellant, Heritage Insurance Company of America, is the surety under a performance bond. Appellant, Industrial Builders, Inc., is the contractor-principal. Appellants, Novo and Portuondo, are indemnitors of the surety. Appellee, Chick’N Haven, Inc., is the owner-obligee.

Because of a dispute between the owner and contractor arising out of a contract to construct a limited service restaurant, Heritage brought an action for declaratory judgment against all of the above-named parties. The owner counter-claimed against the surety and the owner and contractor cross-claimed against each other. The trial court entered an order, finding the contractor had breached its contract with the owner, determining liability against the surety in favor of the owner in its counterclaim and determining liability against the indemnitors in favor of the surety on its complaint.

The contractor and indemnitors raise three points on appeal. They allege the trial court erred in (1) basing its order upon photographs not admitted into evidence, (2) misinterpreting an article in the contract between the owner and contractor, and (3) allowing the owner to offer evidence as to damages at a subsequent final hearing to be held after the owner had rested its case at the second session of final hearing. The surety also has appealed.

Although the surety joins the contractor and indemnitors in the latter two points, it expressly disavows the first. Counsel for the surety presented photographs of the construction premises to the trial court for its inspection during his opening statement. Then counsel for the owner commented during his opening statement without objection from the contractor, the indemnitors, or anyone:

It’s undisputed, and I believe clear from the picture before Your Honor that the building is far from completed.
In its order, the trial court said:
The photographs which were admitted into evidence indicated that it would be virtually impossible for him to finish the building within the next few days allotted.

Although it was error for the trial court to base its judgment upon the photographs which were not in evidence, it was not reversible error because there was ample testimony in the record by the owner’s architect and the contractor’s president that when the contractor discontinued work at the site, the building was several weeks away from completion. See Hammond v. Carlyon, 96 So.2d 219, 221-222 (Fla.1957).

Turning to the second point, the principal and indemnitors allege the trial court erred when it concluded the contractor had breached its contract by not timely completing the restaurant. They claim the court failed to consider delays caused by reasons beyond the contractor’s control. We disagree, even though the order does not expressly fault the contractor with the delays. First, there was simply no question that the restaurant could not have been completed by November 17, 1979. Second, the order specifically treats the causes of delay and absolves the owner of fault. Third, the trial court expressly reached the following ultimate conclusions:

(1) The Defendant-contractor had breached the contract by November 9, 1980 [sic].
(3) The Surety, Heritage Insurance Company of America, is liable under the contract for the completion of the job and the Indemnitor is liable to the Surety.

A trial court’s resolution of disputed facts in a non-jury trial comes to this court with a presumption of correctness. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Even if we were to assume that the trial court concluded the breach occurred because the job had not been timely completed and that it failed to consider whether reasons beyond the contractor’s control prevented timely completion, we would still affirm. If the record, acting as it does for the trial and reviewing courts as a road map, requires our taking a route different from that taken by the trial court but leads us to the same destination, reversal is out of the question. See Flynt v. McGillen, 403 So.2d 577, 579 (Fla. 4th DCA 1981). As the supreme court stated less picturesquely but more to the point in Applegate, “[e]ven when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” 377 So.2d at 1152. In this case the evidence in the record establishes that a material number of delays caused by matters over which the contractor had control resulted in breach of contract with the owner.

To buttress their argument in support of point three, the contractor and indemnitors contend the trial court abused its discretion by allowing the owner to schedule additional time for a hearing upon the issue of damages although all of the parties had rested their cases. We concur with the owner’s analysis that the point is not reviewable at this time. Fla.R.App.P. 9.130.

Based on all of the foregoing, we affirm.

AFFIRMED.

DELL, J., concurs.

BERANEK, J., concurs in conclusion only.

      . The article contains the following clause: “The Work to be performed under this Contract shall be . . . completed within approximately 120 calendar days from the date commenced, subject to delay for reason beyond the Contractor’s control.”


author: DELL, Judge.

text:
    Arthur J. FITZELL, Appellant/Cross-Appellee, v. RAMA INDUSTRIES, INC., Appellee/Cross-Appellant.
    No. 81-150.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Arthur C. Koski of Koski, Mateer, Gillespie & Allison, Boca Raton, for appellant/ cross-appellee.
    Jeff Brown and Joel H. Feldman of La-Valle, Wochna, Rutherford, Truesdell & Brown, Boca Raton, for appellee/cross-appellant.
   DELL, Judge.

Arthur J. Fitzell appeals a final judgment based upon a verdict returned after the trial court had discharged the jury.

The jury returned a verdict awarding compensatory and punitive damages to appellant while denying recovery to appellee Rama Industries on its counterclaim. The trial court discharged the jury following publication of the verdict and polling of the jurors. During an informal discussion with the jurors without the presence of counsel or a court reporter the trial judge concluded that a part of the verdict did not conform to the intent of the jurors. The trial court set aside the verdict on appellee’s counterclaim and reconvened the jury, which subsequently returned a verdict for the appellee on its counterclaim. Following the entry of a final judgment appellee caused execution to issue on appellant’s personal property.

Appellant contends that the jury did not have authority to enter a new and different verdict after it rendered its first verdict and then was discharged.

We recognize that from time to time a trial judge may conduct an informal conference with a jury after it has been discharged, with the hope of developing a better understanding of those factors which may influence a jury in its deliberations. However, such conferences may not be used to delve into the factual basis for the jury’s decision or to furnish a basis for a new trial or to cause the jury to alter its verdict. When a judge conducts such a conference he is acting at his peril since he may learn of factors which influenced the jury’s verdict and which may be material to post-trial motions. Under no circumstances may he use the information gleaned from such post-verdict conferences to change or alter the jury’s verdict.

In Kirkland v. Robbins, 385 So.2d 694 (Fla. 5th DCA 1980), pet. for rev. denied, 397 So.2d 779 (Fla.1981), the trial judge relied upon a post-trial interview with members of the jury when he considered a motion for remittitur or in the alternative, a new trial. The District Court held that

If a verdict is pronounced in the presence of all jurors which presumptively has satisfied the enlightened conscience of each of them, it is against public policy to inquiry [sic] into the motives and influences by which their deliberations were governed. Velsor v. Allstate Insurance Co., 329 So.2d 391 (Fla. 2d DCA 1976). Thus, inquiry is proper only in such cases involving matters extrinsic to the verdict such as arrival at the verdict by lot or quotient, improper contact with a juror or misconduct of a juror; investigation of the subjective decision-making process of the jury is not permissible. Id. at 393; Magid v. Mozo, 135 So.2d 772 (Fla. 1st DCA 1962). See also Ortega v. Perrini & Sons, Inc., 371 So.2d 203 (Fla. 2d DCA 1979).

Id. at 695-96.

A party may invoke the provisions of Rule 1.431(g), Florida Rules of Civil Procedure, and move for an order permitting an interview of a juror or jurors to determine whether a basis exists to challenge a jury’s verdict. In the case sub judice, once the trial judge learned that the jurors may have misunderstood the effect of their verdict, he should have notified counsel and entertained a motion to interview jurors pursuant to Florida Rule of Civil Procedure 1.431(g). The Kirkland Court, supra, stated that

The trial judge was not authorized to conduct an informal interview of the jurors after their dismissal and especially to then use the results of this poll as a factual basis for his decision on the motion for remittitur. After the jury has returned its verdict and has been discharged and separated, it cannot be recalled to alter or amend its verdict since the jury members lose their separate identity as a jury and are subject to extra trial influences. United States Fidelity & Guaranty Co. v. Gulf Florida Development Corp., 365 So.2d 748 (Fla. 1st DCA 1978). Thus, for the same reasons, it would appear that a juror’s recall of the jury deliberations would also be unreliable and should not be allowed to influence the judge in his determination of the correctness of the verdict.

Id. at 696.

Thus, we conclude that the trial court’s actions in the case sub judice were improper and that he erred in reconstituting the jury and reconvening them sua sponte for further deliberations. Accordingly, we reverse and remand this cause for a new trial on all issues previously tried and for proceedings to return appellant’s personal property seized under the writ of execution issued pursuant to the final judgment.

REVERSED and REMANDED.

GLICKSTEIN and HURLEY, JJ, concur.


author: BERANEK, Judge.

text:
    Phillip K. HARVEY and Great American Insurance Company, etc., Appellants, v. Harry Joe HUDDLE and State Farm Mutual Automobile Insurance Company, Appellees.
    Nos. 81-620, 81-621.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    David F. Crow of Paxton, Crow, Taplin & Bragg, P. A., West Palm Beach, for appellants.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee, Huddle.

      Frank W. Weathers of Weathers, Narkier & Brooks, P. A., West Palm Beach, for appellees.
   BERANEK, Judge.

This appeal raises the question of whether an action to enforce contribution by a joint tortfeasor under Section 768.31, Florida Statutes (1979), is a compulsory counterclaim and whether Subsection 4 of the Statute is violative of Article V, Section 2(a) of the Florida Constitution. Since we find that a claim for contribution is not a compulsory counterclaim, we need not address the second issue. We reverse the trial court’s contrary determination.

Appellants’ complaint for contribution arose out of a prior suit against him for injuries arising from an automobile accident. After jury trial, the present appellant satisfied the entire judgment and filed suit for contribution under Section 768.31, Florida Statutes (1979), against Harry Huddle and his insurer, State Farm Mutual Automobile Insurance Company. Both defendants (appellees herein) filed motions for judgment on the pleadings asserting that the action was untimely because it was not brought as a compulsory counterclaim. The trial court ruled the action was barred and this appeal ensued.

Rule 1.170(a), Florida Rules of Civil Procedure, governing compulsory counterclaims states:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

In Ryder Truck Lines, Inc. v. Pough, 392 So.2d 590 (Fla. 3d DCA 1981), a case factually similar to the case at bar, the Third District found a counterclaim for contribution was permissive, not compulsory. The Poughs sued Ryder for personal injuries to themselves and their children resulting from the collision of their car, driven by Mr. Pough, with a vehicle owned by the truck line. Defendant and its insurer filed a general denial and a counterclaim for contribution under the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1977). Plaintiffs’ motion to dismiss was granted and defendants appealed. In determining that the trial court had erred in dismissing defendants' claim for contribution, the appellate court stated:

The original claim of the Poughs is still pending. Therefore, the threshold question, which must be addressed, is whether defendants may appeal the dismissal of their amended counterclaim at this juncture of the case. The right to contribution arose out of the same transaction or occurrence and therefore might, at first blush, appear to be a compulsory counterclaim under Florida Rule of Civil Procedure 1.170(a). It has been uniformly held that, because of the interrelationship between an original claim and a compulsory counterclaim, no appeal could be of both the claim and the counterclaim. Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Midstate Hauling Company v. Liberty Mutual Insurance Company, 189 So.2d 826 (Fla. 4th DCA 1966); Bumby & Stimpson, Inc. v. Peninsula Utilities Corporation, 179 So.2d 414 (Fla. 3d DCA 1965).
Under Section 768.31(4), Florida Statutes (1977), a judgment for contribution may be maintained whether or not the judgment has been entered in any action against two or more tortfeasors or by separate action. Because the Legislature has allowed such latitude and flexibility, we treat the counterclaim as though it were a permissive counterclaim and therefore appealable. Taussig v. Insurance Company of North America, supra. Consequently, we treat this petition for common law certiorari as a plenary appeal. Fla.R.App.P. 9.040(c).

Appellant here filed no counterclaim. Instead, he brought a separate action within a year after rendition of judgment in the initial tort case. Subsection (2)(b) of Section 768.31 is as follows:

The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.

A complaint sounding in negligence requires allegations of duty, breach and proximate cause. A complaint for contribution requires allegations of payment and payment in excess of one’s share. A compulsory counterclaim must exist “at the time of serving the pleading.” Rule 1.170(a), Florida Rules of Civil Procedure. Since a claim for contribution requires actual payment beyond one’s pro rata share of common liability it is logically distinguishable from the liability tort case. This is the view of the majority of jurisdictions that have passed on the matter. See Annot., 57 A.L.R.3d 857, Limitation Applicable to Indemnity Action, § 3 (1974), and cases cited.

Pursuant to Section 768.31(4), the appellant paid the entire judgment and brought an action for contribution. We conclude that a claim for contribution, although related to the same incident, does not satisfy the test of a compulsory counterclaim.

The trial judge erred, and the judgment below is reversed and the matter remanded for further proceedings.

REVERSED AND REMANDED.

HURLEY, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.


text:
    In the Interest of J. L. P., a child.
    No. 81-1033.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Robert A. Bertisch and Linda S. Goodwin of Legal Aid Society of Palm Beach County, Inc., West Palm Beach) for appellant.
    Mark M. Bradfield, West Palm Beach, for appellee Dept, of Health & Rehabilitative Services.
   GLICKSTEIN, Judge.

Appellant, the natural mother of the minor child in this case, seeks reversal of a final order committing her child to the custody of the Department of Health and Rehabilitative Services, appellee, for subsequent adoption. We affirm.

The trial judge, having heard the testimony of several witnesses at the permanent commitment hearing held in April of 1981, made numerous findings, including:

1. [J. L. P.], a black male child, was born on December 11, 1979.
2. The subject child is within the jurisdiction of this Court, being found, living or domiciled, within Palm Beach County, Florida.
5. The subject child was detained by the Department of Health and Rehabilitative Services on December 12, 1979, and temporary custody was granted to the Department resulting from the mother’s having no means of support, questionable housing arrangements, and a past history of alleged child abuse. The child has continuously resided in foster care since that time.
6. The natural mother is trainably retarded and only has the capability of learning simple, repetitive tasks, and performing them only under supervision. Her level of incompetence assures inadequate parenting skills. She would be unable to cope with emergencies, plan for the future, attend to schooling, deal with others on behalf of the child, or even plan for meals. Her attitude is essentially hostile, combative, antagonistic, and irritable. Since December 12, 1979, the mother has continued to reside in inadequate housing, primarily a men’s rooming house which will not take children. The rooming house smells of urine and marijuana, and the rooms are all single rooms with a long dark hallway leading to communal bathrooms. The bathrooms are too filthy for use. The window is covered with a blanket, and the only cooking arrangements are a hot plate which the mother borrowed from one of the other tenants. Washing is done out of a pail, and the refrigerator did not work because the father had “jugged a hole in it.”
7. Both the father and mother were before the Court on June 25, 1980, and the father was ordered to contribute $25.00 per week toward the child’s maintenance and support which he has not done. The father has been steadily employed and has been financially able to contribute to the support of the child while the child has been in foster care. The father has failed to submit to psychological evaluation by the court psychologist despite having been ordered to do so. Neither the father nor the mother have done anything toward obtaining suitable housing since having been ordered to do so by the Court on June 25, 1980. Neither parent has demonstrated a purpose to make the changes necessary for the placement of the child in their home.
8. The mother attended school at Palm Beach Habilitation Center, and in three weeks she had four absences. In the next two weeks, she had four absences. She has failed to obtain or keep a job, and her only work history is working four days at a restaurant.
9. The mother is in the lowest one-half of one percent of the general population with respect to intellectual capability, and she is too impatient and irresponsible to cope with the demands of raising a child. She is unable to think in terms of the child’s welfare.

In this case the trial court determined the evidence established neglect. Appellant contends neglect cannot be prospective, and because she never had custody of the child, she could not have legally neglected him. We disagree. We also think abuse under section 39.01(2), Florida Statutes (Supp. 1980), may be established prospectively.

Section 39.41(l)(f) 1 a, Florida Statutes (Supp.1980), provides:

When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to:
[permanently commit the child ... [i]f the court finds that the parent has abandoned, abused, or neglected the child.

Section 39.01(27), Florida Statutes (Supp. 1980), defines neglect as

when a parent or other legal custodian, though financially able, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

Under the statutes, we hold that in order to sustain a final order of permanent commitment because of neglect or abuse, there must be clear and convincing evidence that the child has been or will be neglected or abused. We do so for a number of reasons. First, section 39.001(3), Florida Statutes (1979), expresses the Legislature’s intent that the Florida Juvenile Justice Act be liberally construed so as to effectuate its purpose. Section 39.001(2)(b), Florida Statutes (1979), states that one of those purposes is “to assure to all children brought to the attention of the courts .. ., the care, guidance, and control .. . which will best serve the moral, emotional, mental, and physical welfare of the child.” Second, parental rights are “subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail.” In Re Camm, 294 So.2d 318, 320 (Fla.1974). Third, in construing legislation, we must avoid any construction that would produce an unreasonable, absurd, or ridiculous consequence. McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979).

We are not insensitive to appellant’s plight, which is woeful, and her circumstances are a stark reminder that life can be wretched in this country at this time for the poverty stricken. Furthermore, as this court said in Wright v. State, 409 So.2d 1183, 1184 (Fla. 4th DCA 1982),

The purpose of the phrase “financially able” in subsection (27) is to ensure that financially disadvantaged parents may not be divested of their children simply because they are poor. It does not, however, constitute a license for child abuse for either rich or poor. We need not draw that fine line which the circumstances of some future case will require of a court confronted with a deprivation of necessary food, clothing, shelter or medical treatment. The term “financially able” rather clearly applies in that situation and poverty, under appropriate circumstances, may be found to constitute a bar to a finding of dependency.

Disregarding appellant’s poverty, her limited mental capacity and emotional makeup standing alone certainly would produce a hopeless environment for her child. The uncontroverted opinion of the clinical psychologist who testified was that if the child were left alone with appellant, he would be subject to a considerable risk of abuse because of appellant’s inability to think in terms of the child’s welfare. The evidence supports the expert’s conclusion. Unmarried, appellant was pregnant again at the time of the final hearing. Her profane outburst at the hearing plainly evinced her combativeness and impatience. Her sexual promiscuity and apparent indifference to some economic rehabilitation are unquestionably the result of her personal limitations and squalid conditions. The trial judge gave appellant ten months to establish an environment fit for the child, free of neglect and abuse. The evidence is clear and convincing that she is simply unable to do so because of her own shortcomings.

Our sympathy for the mother cannot blind us to the overriding concern for the welfare of the child. We cannot help the one and shall not harm the other. As the trial court pointedly observed in his final order, placing the boy with his mother will assure mistreatment. The Legislature clearly did not intend to have a child suffer such an experience before a trial court could act. Because of the clear and convincing evidence that neglect and abuse will occur if the child is placed in the care of his mother, we affirm.

ANSTEAD and HERSEY, JJ., concur.

      . Section 39.01(2), Florida Statutes (Supp. 1980), defines abuse as
      any willful act that results in any physical, mental, or sexual injury that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.

      . Santosky v. Kramer,-U.S.-, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Torres v. Van Eepoel, 98 So.2d 735 (Fla.1957), make clear that before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by clear and convincing evidence.

      .In contrast, the third ground for commitment, i.e., abandonment may not be considered prospectively in view of the language of section 39.01(1), Florida Statutes (Supp.1980), which provides:
      “Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6-month period are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.


author: PER CURIAM.

text:
    James K. POWNALL, I. I. A., Appellant, v. Robert C. LOUCKS, P. E., Appellee.
    No. 81-1073.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Thomas R. Schwarz, Fort Lauderdale, for appellant.
    C. La von Ward, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Affirmed. See, Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

ANSTEAD and HERSEY, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Jane Mikels WYLIE and John Wylie, Appellants, v. Michael E. BOTOS, as intermediary in adoption, Appellee.
    No. 81-1233.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Joseph S. Karp of Bernstein, Sharff, Monchick & Karp, West Palm Beach, for appellants.
    Richard E. Bosse of Rappaport & Bosse, Boca Raton, for appellee.
   ANSTEAD, Judge.

Appellants Jane Mikels Wylie and John Wylie appeal an order granting a petition for the adoption of their child born out of wedlock, and denying their petition for writ of habeas corpus seeking return of the child from appellee Michael Botos, who acted as an intermediary for the adoptive parents. The Wylies assert that the trial court erred procedurally in receiving evidence as to Mr. Wylie’s alleged abandonment of the child in that the adoptive parents neither explicitly raised the issue of abandonment in their pretrial pleadings nor moved at trial to amend these pleadings to conform with the evidence presented on this issue. They further assert that the judge below erred substantively in making a dispositive finding in his final orders that Mr. Wylie had in fact abandoned the child.

The evidence adduced below revealed that appellants, then unmarried, were living together in the home of Mr. Wylie’s parents when the child was conceived sometime in the latter part of 1979. In March of 1980, Mrs. Wylie visited a physician, who confirmed her suspicions of pregnancy and discussed several alternatives with her, including adoption. Appellants discussed their alternatives and Mr. Wylie agreed to defer to Mrs. Wylie’s decision. Mrs. Wylie subsequently informed the physician that appellants had decided that the child would be given up for adoption. Mr. Wylie knew at this time that he could have established his legal rights to the child by marrying Mrs. Wylie, but he declined to do so because he felt it would “look bad” if he married her while she was pregnant. In April and May Mr. Wylie tendered checks in the net amount of $700.00 to the physician with the understanding that this money would likely be refunded once the adoption proceedings were completed. The child was born on June 3, 1980. Two days later Mrs. Wylie executed a form consenting to the child’s adoption, as required by Section 63.-062(l)(a), Florida Statutes (1977). On June 6, the child was placed with the prospective adoptive parents by appellee Botos. On June 16 the prospective adoptive parents, pursuant to Section 63.112, Florida Statutes (1977), filed their petition for adoption, incorporating Mrs. Wylie’s consent by reference.

The first indication that all was not well with the adoption occurred on July 9, when a social worker for the Department of Health & Rehabilitative Services, the state agency which has responsibility for adoption proceedings under Chapter 63, Florida Statutes (1977), received a telephone call from a man identifying himself as a friend of Mrs. Wylie’s mother. The caller, who was later identified as the natural mother’s stepfather, stated that Mrs. Wylie’s mother had been unaware of her daughter’s pregnancy and desired to keep the child. On July 14, the Wylies advised the social worker that the appellants had changed their minds and now wanted the child returned. On August 7, the Wylies moved for an in-camera inspection of the court files pertaining to the adoption, incorporating by reference an acknowledgment of paternity executed the same day by Mr. Wylie. Four days later, the Wylies filed written objections in the adoption action, and a petition for habeas corpus was filed on August 22. On October 27, 1980, the Wylies married.

Hearings were held before the lower court on the petitions for adoption and writ of habeas corpus on June 4 and 5,1981, and on June 25 the judge below entered orders in favor of the adoptive parents on both petitions.

Section 63.062, Florida Statutes (1979), provides:

63.062 Persons required to consent to adoption.—
(1) Unless consent is excused by the court, a petition to adopt a minor may be granted only if written consent has been executed after the birth of the minor by:
(a) The mother of the minor.
(b) The father of the minor, if:
1. The minor was conceived or born while the father was married to the mother.
2. The minor is his child by adoption.
3. The minor has been established by court proceeding to be his child.
4. He has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor and has filed such acknowledgment with the vital statistics office of the Department of Health and Rehabilitative Services.
5. He has provided the child with support in a repetitive, customary manner.

Section 63.072(1) further provides:

63.072 Persons whose consent to an adoption may be waived. — The court may excuse the consent of the following individuals to an adoption:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a ehild[.]

Under Section 63.062(1), the consent of the natural mother of a child born out of wedlock is required in all cases unless excused by the court. However, a natural father, unlike a natural mother, is required to take some sort of affirmative action in order to make his consent, or the excuse of it, a prerequisite for the child’s adoption. See In Re The Adoption of Mullenix, 359 So.2d 65 (Fla. 1st DCA 1978). The statute is silent as to exactly when such action must be taken. Section 63.112 requires that a petition for adoption identify all persons whose consent is required and that written consents be attached to the petition or circumstances set out that excuse the absence of such consents. This section clearly contemplates that action be taken by the natural father prior to the filing of the petition for adoption. Otherwise the petitioners would have no reason to list the natural father as one whose consent is required. Since the natural father here had done nothing to require that the adoptive parents secure his consent, it was not necessary for the adoptive parents to allege any excuse for not securing his consent in their petition.

The question remains, however, as to what effect if any the natural father’s subsequent filing of an acknowledgement of paternity had on the adoption proceedings. Clearly, if properly and timely filed, an acknowledgement makes the natural father’s consent or excuse therefor a prerequisite to securing a final decree of adoption. We simply cannot determine with certainty whether the legislature intended to cut off the rights of a natural father, who, although on notice of his paternity of a child and the pendency of adoption activities, files no acknowledgement of paternity before the legal adoption proceedings are commenced. We conclude, however, that, regardless of the absence of the father’s written consent or excuse therefor, under the facts of this case the trial court acted correctly in denying the natural father’s claim and in granting the adoption.

The judge below found that the adoption was proper because the natural mother’s consent had been executed in accordance with the law and the natural father’s consent, seemingly required under Section 63.-062(l)(b), could be excused under Section 63.072(1) because he had abandoned the child. The trial court concluded:

In the instant case, the father took no interest in or responsibility for the child then developing in the mother’s womb. They discussed the matter but, in his words, they did not discuss it that much because it just did not matter that much. He knew of the plan to place the child for adoption through Dr. Wargo’s office and the possibility that the medical expenses could be refunded. He went along with it because “it was her decision.” He put a seal of approval on the plan to the extent of $700.00, knowing that the child would be adopted by strangers. He exhibited nothing but a set purpose to shed himself of this responsibility. Only after the July 9th, 1980, telephone calls from the mother’s step-father, indicating that the grandmother wanted to adopt the child, is the appearance of an interest in the child. That this interest was generated at the urging of the grandmother was apparent in his inability to explain the import of the acknowledgement of paternity even with the document before him. It is also apparent in the change of lifestyle, i.e. moving from a boat to a home, advancing the wedding date, once grandmother learned of her status as grandmother. It is, therefore:
ORDERED that the petition for adoption is granted and the writ of habe-as corpus discharged.

The trial court concluded, in essence, that the natural father and mother had both initially consented to the adoption of the child and were now trying to revoke that consent. The trial court found that no grounds had been established to justify revocation. The only complication was that the father had not executed a written consent. However, under the facts herein whereby it was established that he was fully aware of the adoption and agreed thereto, we believe he is estopped to now claim that his written consent was necessary.

The only reason that written consent was not secured is that it was not necessary under the statute. It is clear that both the father and the mother did actually consent to the adoption. Under these circumstances we think the natural father’s attempt to upset the adoption proceedings stands on the same footing as that of the natural mother. In such circumstances it has been held that in the absence of fraud or duress a consent is irrevocable. In Re Adoption of Cox, 327 So.2d 776 (Fla.1976). In Cox the Supreme Court noted:

It is frequently said that contested adoptions are the most difficult of all cases for trial judges. Where a natural mother seeks the return of her child after she has bettered her position to care for the child and has reconsidered her original motives for allowing the adoption, the burden placed on a trial judge is even more weighty. We recognize the difficulties inherent in making a decision in matters of this nature, and we are most reluctant to substitute our judgment (or let the district courts substitute their judgments) in the resolution of these emotionally-charged matters. Where the trial judge has guided his decision by reference to the best interest of the child and fully considered all of the evidence before him, there is very little room for the exercise of appellate discretion.

We believe the same considerations mandate approval of the trial court’s judgment herein.

Accordingly, the judgment of the trial court is affirmed.

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

      . The trial court found that the adoption would be in the best interests of the child and the appellants do not challenge that factual finding on appeal.

      . In view of the urgent need for clear standards in this sensitive area, we confess a temptation to interpret the statutes as terminating the rights of such fathers who have not acted to secure their rights prior to the filing of a proper petition for the adoption of their children. Because the statutes are unclear we urge the legislature to address this matter.

      . Although the behavior of the natural father might well not have constituted an abandonment of the child under Section 63.072 and hence would not have been an excuse for the absence of the natural father’s consent to the adoption under Section 63.062 and the existing case law, see e.g. La Follette v. Van Weelden, 309 So.2d 197 (Fla. 1st DCA 1975); Durden v. Henry, 343 So.2d 1361 (Fla. 1st DCA 1977); Lovell v. Mason, 347 So.2d 144 (Fla. 1st DCA 1977); Barrett v. Reed, 363 So.2d 14 (Fla. 1st DCA 1978); Nelson v. Herndon, 371 So.2d 140 (Fla. 1st DCA 1979); In Re The Adoption of Sorensen, 385 So.2d 1057 (Fla. 4th DCA 1980); cf. In the Interest of J. F., 384 So.2d 713 (Fla. 3d DCA 1980); In re The Adoption of M. A. H., 411 So.2d 1380 (Fla. 4th DCA 1982), we have concluded that the issue of abandonment need not have been reached in this case.

      . To hold otherwise would be to grant the natural father even greater rights than the natural mother possessed, a result which we do not believe the legislature intended. What would happen in a case where the natural father of a child bom out of wedlock had no actual knowledge of the natural mother’s pregnancy and maternity until after a petition for adoption was filed, a question of possibly constitutional dimensions, is not presented to us, since the natural father here was at all times fully aware of such facts. See generally Dept. of Health & Rehabilitative Services v. Herzog, 317 So.2d 865 (Fla. 2d DCA 1975); Case Comments: Constitutional Law — Adoption—Father of An Illegitimate Child Is Not Necessarily Entitled To Notice In Adoption Proceedings, 5 F.S.U.L. Rev. 486 (1977); The Unwed Father: Conflict of Rights In Adoption Proceedings, 7 F.S.U.L. Rev. 559 (1979); Family Law, 33 U.Miami L.Rev. 1069, at 1097-1099 (1979).

      . The natural mother alleged that her consent had been secured through fraud and duress. The trial court concluded that there was not only an absence of evidence of fraud or duress but that the mother acted with complete deliberation and made a fully informed decision to place the child for adoption.


text:
    Oliver F. ROBBINS, Appellant/Cross-Appellee, v. Betty C. ROBBINS, Appellee/Cross-Appellant.
    No. 81-1302.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Abe Rosenberg and Fred Boruchov of Abe Rosenberg, P. A., Hollywood, for appellant/cross-appellee.
    John B. DiChiara of DiGiulian, Spellacy & DiChiara, Fort Lauderdale, for appel-lee/cross-appellant.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

The final judgment dissolving this twenty-six year marriage granted the wife’s petition for partition of certain jointly owned real property, with provision for a division of the net proceeds of the sale, but requiring each party to bear his or her own attorney’s fees and costs.

We find no reversible error demonstrated in the points raised on the husband’s appeal nor in the points raised on the wife’s cross-appeal. However, we understand from a review of the final judgment, as well as from representations made at oral argument before the court, that the provision in the final judgment requiring each party to bear his or her own attorney’s fees and costs (a) relates solely to the matter of attorney’s fees and costs incurred in connection with the dissolution, and (b) does not foreclose the court from subsequently determining the share which each of the parties shall bear of the cost, including attorney’s fees, incurred in connection with the partition action, as authorized by Section 64.081, Florida Statutes (1981).

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Andrew Louis BROWN, Appellee.
    No. 81-1371.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

An information was filed against appel-lee, charging him with burglary of a structure and possession of burglary tools. When the cause came before the trial court on a jury trial docket, appellee moved to dismiss the information based upon (1) the victim’s desire that the charges not be prosecuted because of restitution made by ap-pellee, and (2) the charge was appellee’s first offense. The trial judge dismissed the information despite the State’s insistence on prosecuting the case. Because the trial judge’s action infringed upon the state attorney’s discretion to decide whether prosecution should continue, we reverse.

At the proceeding the prosecutor advised the trial judge that appellee was “a perfect candidate for Pre-Trial Intervention” and that the State had no objection to appellee going into the program. The victim, who was also present, stated he did not wish the prosecution to proceed. The trial judge asked if the State would prosecute the ease based on the victim’s statement. The prosecutor replied that a very lenient plea offer would be made. The court, noting that the pretrial intervention program was not mandatory, asked the State what it would do if appellee chose not to participate. The prosecutor replied that appellee “should be prosecuted” and that he was ready to proceed. The court later asked the same question to which the prosecutor again replied: “He should be prosecuted.” The trial judge then dismissed the case without prejudice to the refiling of the charges, saying:

I will dismiss the case — You all can refile if you like — based on the testimony of the victim here.

The prosecutor did not then voice an objection. This appeal followed.

In response to appellee’s first argument, we hold the prosecutor’s failure to voice an objection to an order of dismissal is irrelevant. The trial judge was not led into the error we perceive by the absence of an objection, and we fail to see how an order of dismissal contemplates a simultaneous objection.

Turning to the merits of the case, we hold the trial judge’s actions constituted an improper infringement upon the discretion of the State to prosecute. State v. Cleveland, 390 So.2d 364 (Fla. 4th DCA 1980), pet. for rev. granted, 6 Fla.L.W. 53 (No. 60,178) (Fla. Sept. 3, 1981). In Cleveland we held that because the pretrial intervention program was within the prosecuto-rial rather than the judicial realm, a state attorney’s reason for denying consent to a defendant to be admitted into the program may not be reviewed. Citing to State v. Eash, 367 So.2d 661 (Fla. 2d DCA), cert. denied, 374 So.2d 101 (Fla.1979), a case which reached the opposite result as that in Cleveland, we found support in our conclusion by examining the prosecutorial functions of the state attorney. It is the state attorney, we wrote, who “must still make the final determination as to whether prosecution will continue.” 390 So.2d at 367.

The assertion made in Cleveland, although not documented, stems from the common law. In the absence of a statute, the attorney general controlled the prosecution of a case and he alone had the exclusive discretion to decide (prior to the inception of double jeopardy) whether to prosecute. Wilson v. Renfroe, 91 So.2d 857 (Fla.1956). See also Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976); Hield v. State, 201 So.2d 235 (Fla. 4th DCA 1967) (Andrews, J., concurring); State v. Hargis, 328 So.2d 479 (Fla. 1st DCA 1976) (Rawls, C. J., dissenting). No statute modifying the common law rule exists. Under these authorities, the trial court erred in dismissing the information when the state attorney said he wanted to prosecute.

Accordingly, we reverse and remand with directions to proceed in accordance with this opinion.

HURLEY and DELL, JJ., concur.

      . Under Florida Rule of Appellate Procedure 9.140(c)(1)(A), the state may appeal an order dismissing an information. In State v. Schroeder, 112 So.2d 257, 259 (Fla.1959), the court held that under the statutory counterpart to Rule 9.140(c)(1)(A), the right of the State to appeal is “unconditional and cannot be impaired by the trial court making the order without prejudice to the matter being resubmitted to the grand jury.” Under the Rule and Schroeder, jurisdiction exists to review a dismissal without prejudice of an information.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    Jeffrey WEINER, Appellant, v. Marsha Beth WEINER, Appellee.
    No. 81-1811.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Louisa E. Hargrett of Walden & Walden, Dania, for appellant.
    Henry L. Kaye of Law Offices of Kaye and Devore, West Palm Beach, for appellee.
   HERSEY, Judge.

Subsequent to entering the Order on Relief Pendente Lite appealed here the trial judge recused himself upon his own motion for prejudice against appellant and his former counsel. The evidence which resulted in prejudice, a photograph of appellee and others, came to the attention of the trial judge at the hearing on the motion for temporary relief, and before the order appealed from here was entered.

We commend the trial judge for his candor and for his appropriate action. Under these circumstances, however, it is clear that the order, entered as it was after prejudice attached, is fatally tainted and must be reversed. Any other course would deny appellant due process. State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977).

As our supreme court held in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939):

[Ejvery litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

We therefore reverse the order and remand for a new hearing on relief pendente lite.

Appellee, awarded attorneys’ fees in the lower court, has moved for such an allowance here. On remand the trial court may grant a reasonable fee for this appeal upon a showing of appellee’s need and appellant’s ability to pay.

REVERSED and REMANDED.

GLICKSTEIN, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The record is unclear as to whether the prejudice referred to by the trial judge existed at the time the order for temporary relief was entered. In fact, from the bare-boned record available, it appears that the prejudice referred to may have arisen as a result of conduct which took place well after the order was entered. The appellant has simply failed to clearly demonstrate that the trial court was biased against him at the time the temporary relief order was entered.


text:
    Carolyn F. ABEL, as Personal Representative of the Estate of William G. Abel, deceased, Appellant, v. The UNITED STATES of America, Appellee.
    No. 81-2211.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    James I. Ridley of Friedrich, Blackwell, Mikos & Ridley, P. A., Fort Lauderdale, for appellant.
    Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Ann B. Durney and Stephen Gray, Attys., Tax Div., Washington, D. C., Atlee W. Wampler, III, U. S. Atty., and Ira F. Gropper, Asst. U. S. Atty., for appellee.
   PER CURIAM.

Affirmed on the authority of United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940) and United States v. Embrey, 145 Fla. 277, 199 So. 41 (1940).

ANSTEAD and HERSEY, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Orazio TURIANO, Appellant, v. Robert A. BUTTERWORTH in his official capacity as Sheriff of Broward County, Florida, Appellee.
    No. 82-217.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.

      Douglas M. Kramer of Colodny, Fass & Tallenfeld, P.A., North Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

In an extradition proceeding, Orazio Turi-ano seeks review of an order remanding him to the demanding state and denying his amended petition for a writ of habeas corpus.

On September 21, 1981, the Federal Bureau of Investigation (FBI) arrested appellant in Florida, on a New Jersey fugitive warrant for murder. The FBI delivered appellant to the appellee, Sheriff of Bro-ward County, to await further proceedings. A Florida Governor’s Warrant was issued to return appellant to New Jersey. Appellant brought a petition for writ of habeas corpus and alleged that he was not present in New Jersey at the time of the crime. Without issuing a writ of habeas corpus, the trial court conducted an evidentiary hearing on the merits of the habeas corpus petition. The court admitted the Governor’s Warrant and attached affidavits. Appellant offered two affidavits, the testimony of his wife, and his own affidavit, to establish his non-presence in the demanding state. The State called appellant to testify but he refused, asserting his right against self incrimination. Because of his refusal to testify the trial court, with concurrence from appellant’s counsel, granted the State’s motion to strike appellant’s affidavit. The State called Richard Chinery, a detective, who testified that he saw appellant less than one mile from the scene of the murder on the day of the crime. The court also considered a certified transcript of testimony given by John Scott before the New Jersey grand jury. Scott’s grand jury testimony placed appellant at the scene of the murder. Appellant wanted to take Scott’s deposition but could not locate him. Appellant moved for a continuance to take the deposition of Scott, a witness in the Federal Witness Protection Program, and also asked the court to compel the State to make Scott available for deposition. The trial court continued the hearing for ten days to permit the taking of the deposition but stated that the court had no authority to order the Federal government to produce Scott. The court, after hearing the evidence, determined that appellant had failed to carry his burden to rebut the rendition document, denied the petition for writ of habeas corpus, and remanded appellant to the State of New Jersey.

Appellant raises two points on appeal. He contends that the trial court erred in admitting the grand jury testimony of Scott without affording him the right to take Scott’s deposition, and he also contends that the trial court erred in refusing to issue a writ of habeas corpus and in refusing to direct the State to respond before conducting an evidentiary hearing.

Appellant argues that because his own affidavit was stricken that the trial court should have stricken the certified transcript of Scott’s grand jury testimony and entered an order compelling the deposition of Scott. We do not find appellant’s argument persuasive for several reasons. A habeas corpus proceeding challenging the propriety of extradition is a summary rather than plenary proceeding. State ex rel. Kimbro v. Starr, 65 So.2d 67, 68 (Fla.1953). It is also well settled that habeas corpus proceedings are historically informal and affidavits are permissible. State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973). It should also be noted that appellant presented two affidavits which were admitted into evidence and he should not now be heard to deny the State the same privilege. The State had no obligation to produce Scott, a witness in the Federal Witness Protection Program. It has been held that it is not the responsibility of the State to produce out of state witnesses subpoenaed by the defendant for discovery purposes. State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977).

When a prisoner asserts his non-presence within the demanding state at the time in question, “it is clear that the burden is on him to overthrow conclusively the presumption against him.” State ex rel. Kimbro v. Starr, supra. Conflicting evidence on the presence or absence of the accused in the demanding state does not meet appellant’s burden to overcome the presumption against him. Bonazzo v. Michell, 221 So.2d 186 (Fla. 4th DCA 1969). The United States Supreme Court has established the standard for extradition:

A governor’s grant of extradition is pri-ma facie evidence that the constitutional and statutory requirements have been met. Cf. Bassing v. Cady, 208 U.S. 386, 392, 28 S.Ct. 392, 393, 52 L.Ed. 540 (1908). Once the governor has granted extradition, a court considering release on habe-as corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.

Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978).

The trial court found that the appellant’s evidence failed to rebut the prima facie case made by the rendition documents. This ruling, as any ruling denying relief from a habeas corpus petition challenging extradition, comes to the reviewing court with a presumption of correctness. Fauls v. Sheriff of Leon County, 384 So.2d 238 (Fla. 1st DCA 1980), affirmed, 394 So.2d 117 (Fla. 1981). Appellant’s evidence set up a conflict on the issue of presence, but no more.

We find no merit in appellant’s contention that the trial court erred in conducting an evidentiary hearing prior to issuance of a writ of habeas corpus and the filing of a return thereto. At the first hearing, appellant requested an evidentiary hearing on the petition and did not insist on the technical issuance of the writ as a predicate to the hearing. Appellant relies principally upon Sullivan v. State, 49 So.2d 794 (Fla.1951). His reliance on this case is misplaced. Although appellant correctly states that the issue is joined after the issuance of a writ and the filing of a return, the Sullivan Court, supra, held that a petitioner may not present evidence before the State has had a chance to prepare a return. Appellant did not raise any technical deficiencies at the time that he moved for a continuance, but rather asserted only his right to an evidentiary hearing. Both sides knew appellant contested only the question of his presence in the demanding state. At the first hearing, appellant expressly denied his presence in the demanding state at the time of the crime and that contention was expressly controverted by the State. Any irregularity in the procedure neither prejudiced appellant’s ability to present his case fully nor does it justify a reversal of the trial judge’s decision in the light of appellant’s failure to carry his burden in this extradition habeas corpus proceeding.

Accordingly, we affirm the order remanding petitioner to the State of New Jersey and denying his amended petition for writ of habeas corpus.

AFFIRMED.

LETTS, C. J., and GLICKSTEIN, J., concur.


text:
    ARVIDA CORPORATION, etc., et al., Petitioners, v. The Honorable Robert S. HEWITT and Jon Earhart, et al., Respondents.
    No. 82-602.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Robert M. Klein, West Palm Beach, for petitioners.
    No appearance for respondents.
   GLICKSTEIN, Judge.

The trial court granted petitioner’s motion to dismiss for lack of prosecution in an order dated June 30, 1981; but on August 12, 1981, it vacated same upon respondent Earhart’s motion pursuant to Florida Rule of Civil Procedure 1.540. In the two-part order of August 12th the trial court also ordered a hearing be held on petitioner’s motion to dismiss for lack of prosecution after petitioner had an opportunity to obtain the testimony of a witness. The motion to dismiss to which the second part of the August 12th order referred was obviously the same motion which had precipitated the order of dismissal and the vacation thereof. At that point the parties were back in the same position as they were when the motion to dismiss first was filed.

On September 18, 1981, the trial court denied the motion to dismiss for lack of prosecution. Thereafter, petitioner sought rehearing which the court denied on February 22, 1981; he then filed the present petition for writ of certiorari.

First, the trial judge should not have been named as a respondent. Trial judges have enough to say blessings over without inappropriately being named as respondents in petitions for writ of certiorari. They should not be caused to wonder as to whether a response, or counsel who will file same, are necessary.

Second, the order in question is not reviewable by certiorari. Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980).

Third, this proceeding could be considered timely only if the trial court had denied the rehearing of a final post-judgment order. Clearwater Federal Savings & Loan Association v. Sampson, 336 So.2d 78 (Fla.1976); Khem-Troll, Inc. v. Edelman, 351 So.2d 1040 (Fla. 4th DCA 1976); Meyerson v. Texsol, Inc., 385 So.2d 5 (Fla. 3d DCA 1980). To have such an order there necessarily must be an existing judgment. That is not the case here.

Fourth, petitioner inadvertently termed its petition “emergency” in nature. For the benefit of the Bar, we mention that section 3.2 of this court’s Internal Operating Procedures provides in part:

Any request for emergency action shall be marked urgent and delivered by the Clerk at once to the motion or merits panel of judges assigned to the case.

Because of the response the word “emergency” stimulates in the judges and clerk of this court, it must be used prudently by a petitioner.

We therefore dismiss the petition as to the trial judge and deny the petition as to the remaining respondent.

BERANEK and HURLEY, JJ., concur.

      . No appeal wás taken from this order pursuant to Florida Rule of Appellate Procedure 9.130(a)(5).


text:
    Evelyn WASHINGTON, et al., Appellant, v. Alberta COOPER, Appellee.
    No. 81-392.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.

      Horace E. Hill, Daytona Beach, for appellant.
    April Carrie Charney of the Greater Orlando Area Legal Services, Inc., Orlando, for appellee.
   PER CURIAM.

After trial resulting in a verdict in favor of appellant, the trial judge ordered a new trial because of the bailiff’s response to an inquiry from the jury. We have examined the record and find that, while the bailiff’s response was improper, as such, it was not disproportionally harmful to either party and there was no showing made that it was harmful in fact to either party. See Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982).

The remedy is to discipline the bailiff, not to punish the prevailing party by requiring a new trial, especially here where the appel-lee made no motion for a new trial, shows no prejudice and shows no interest in a retrial.

The jury’s verdict should not have been . set aside. The order granting a new trial is reversed and the cause is remanded for entry of judgment in accordance with the jury verdict.

REVERSED AND REMANDED.

ORFINGER, C. J., and FRANK D. UP-CHURCH, Jr., and COWART, JJ., concur.


author: COWART, Judge.

text:
    CREATIVE PROPERTY MANAGEMENT, INC., Appellant/Cross-Appellee, v. J. Pendleton GAINES, d/b/a Penco Enterprises, Appellee/Cross-Appellant.
    No. 81-963.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.

      John B. Liebman of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellant/cross-appellee.
    Jack A. Nants, Orlando, for appel-lee/cross-appellant.
   COWART, Judge.

This case involves questions as to whether an alleged agent was personally liable on a contract; whether a certain letter was sufficient to constitute a written contract within the statute of limitations; and the date from which interest is calculated on sums due under a contract.

Appellee, as contractor, contracted with the owners of an apartment complex to construct certain improvements. After certain work was done, a dispute arose as to a progress payment schedule and appellee ceased work. Thereafter, appellant took over management of the apartment complex and appellant’s agents met with appel-lee and worked out an agreement as to future payments under which appellee would complete the contracted work. Appellant wrote appellee a letter confirming this agreement and appellee completed the work and ultimately sued appellant for an unpaid balance. Appellant contended (1) appellee’s cause of action was based on an oral contract and was barred by a four year statute of limitations (§ 95.11(3)(k), Fla. Stat. (1981)) and (2) that appellant was acting only as an agent and was not personally liable. The trial court held against appellant’s contentions and for appellee, but allowed appellee interest on the contract balance calculated only from the date ap-pellee filed suit. Appellant appeals the trial court findings against it and appellee cross-appeals the denial of interest from the date he was due payment under the contract to the date he instituted suit.

There is substantial competent evidence to support the trial court’s finding that appellant either did not disclose its principal or that it specifically agreed to be personally liable for the work appellee performed and to support the finding that appellant’s letter was sufficiently definite to be enforceable and to constitute a written contract subject to the five year statute of limitations. § 95.11(2)(b), Fla.Stat. (1981). However, appellee was entitled to interest calculated from the time the debt was due under the contract on which the indebtedness was based. See, e.g., Parker v. Brinson Const. Co., 78 So.2d 873 (Fla.1955); English and American Ins. Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla. 4th DCA 1969). Accordingly, the judgment below is affirmed except as to the allowance of interest on the sum found due appellee, as to which the judgment is reversed and remanded for entry of judgment for interest from the contract due date.

AFFIRMED in part; REVERSED in part.

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


author: DAUKSCH, Judge.

text:
    BALBOA INSURANCE COMPANY, Appellant, v. ST. JOHNS ENGINEERING COMPANY, INC., a Florida corporation; Walter E. Carpenter, an individual, Edna Carnegie, an individual, and Isaac Carnegie, an individual, Appellees.
    No. 81-1077.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    Carroll S. Barco and Donald E. Grincew-icz, of the Law Office of Carroll S. Barco, Orlando, for appellant.
    W. C. Hutchison, Jr., of Hutchison & Mámele, Sanford, for appellees.
   DAUKSCH, Judge.

This is an appeal from a final judgment which was entered after the parties presented the trial judge with the pleadings, a stipulated statement of facts and opposing memoranda of law. Among the various allegations of error is the assertion on the part of the appellant that it was denied due process of law by the court’s refusal to allow the appellant to answer allegations of estoppel and waiver which appellee raised as affirmative defenses. It is clear from the record that after the parties had agreed to present the case to the court upon the pleadings, the stipulated statement of facts and the legal memoran-da, the appellee filed a motion to amend its Answer in order to raise for the first time the affirmative defenses of estoppel and waiver. Before any reply to those affirmative defenses could be filed the trial court entered an order granting the motion to amend the pleadings, allowed the defenses and entered judgment. Upon a motion for rehearing the court refused to reopen the case to permit a reply to the affirmative defenses. This was error because it violated appellant’s due process right to be heard in court. It is basically unfair for the court to refuse to allow the appellant to respond to a new pleading raising new issues after it was agreed by all that the case was submitted to the court for its consideration (with only the lawyers’ argument left to be submitted.) See Cavalier v. Ignas, 290 So.2d 20 (Fla.1974); see also Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483 (Fla.1935); Tomayko v. Thomas, 143 So.2d 227 (Fla. 3d DCA 1962).

The judgment is reversed and this cause is remanded to the trial court to permit a response, by motion or otherwise, to the Motion for leave to Amend and the Amendment to Answer and such other proceedings as might be needed.

REVERSED AND REMANDED.

ORFINGER, C. J., and COWART, J., concur.


author: ORFINGER, Chief Judge.

text:
    OCALA WAREHOUSE INVESTMENTS, LTD., a Florida Limited Partnership, Appellant, v. The BISON COMPANY, a Florida corporation, Appellee.
    No. 81-1085.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    Jeffrey C. Roth of Fieldstone, Oliver, Sumberg & Mondre,P. A., Miami, and Alan J. Kluger, Miami, for appellant.
    Gregory J. Orcutt of Lawson, McWhirter & Grandoff, Tampa, for appellant.
   ORFINGER, Chief Judge.

In this action filed by the lessor for a declaratory judgment, alleging a dispute with lessee regarding the interpretation of a rent escalation provision of a lease, the trial court found the lease unambiguous, and proceeded to determine the amount of basic rent to be paid and the adjustments thereto. The court also awarded costs and attorney’s fees to lessee.

Lessor appeals, contending that the trial court did not correctly construe the lease, and that it erred in awarding attorney’s fees to lessee. We agree that the lease is unambiguous and can be construed by the court, but we hold that the trial court erroneously construed one of the provisions thereof, and that it erred in awarding attorney’s fees.

We hold that the lease clearly requires that the basic rent be increased by $15,950 when the mortgage payment due December 28, 1983 is paid. We agree with the trial court that there are no retroactive adjustments on this addition, and that cost of living adjustments thereon will be made prospectively after that date as required by the lease. There is no dispute between the parties as to the method by which the cost of living adjustments are made, nor as to the frequency thereof. Thus, using the projected figures agreed to by the parties and found by the trial court to be correct, the basic annual rental after the mortgage payment of $145,398.78 is made on December 28,1983, will be $43,400, plus $15,950, or a total of $59,350, subject to cost of living adjustments thereafter, as and when provided for in the lease.

The award of attorney’s fees to lessee was based on this provision of the lease:

In case suit is brought for the recovery of any rent or other sum due under the provisions of this lease or because of the breach of any other covenant herein contained on the part of Lessee to be kept or performed, Lessee shall pay to Lessor, if Lessor prevails in any such action or actions, all reasonable costs and attorney's fees incurred by the Lessor herein. If Lessee shall prevail in any action brought by Lessor or Lessee to enforce any of the provisions of this Lease, Lessor shall pay to Lessee all reasonable costs and attorney’s fees incurred by Lessee.

Attorney’s fees are generally not recoverable unless authorized by statute or contract. Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976). Both parties agree there is no statutory authorization for the attorney’s fees involved. This is not a suit to recover rent or other sums due under the lease, nor is it based on any breach of the lease by the lessee. Neither did lessee prevail in any action brought by either lessor or lessee to enforce any provision of the lease. This was an action for declaratory relief, alleging a difference of opinion as to the amount of rent which was to be paid after December 31, 1983. No present delinquency was alleged nor was either party seeking to enforce any covenant thereof. Thus, nothing in the lease agreement entitles either party to recover attorney’s fees under the restricted language of the quoted provision. See Chesterfield Company v. Ritzenheim, 350 So.2d 15 (Fla. 4th DCA 1977). It was error to award attorney’s fees here.

The portion of the final judgment construing the intent of the lease as to future rent payments is affirmed as modified by this opinion. The portion of the final judgment awarding attorney’s fees to appellee is reversed.

AFFIRMED in part; REVERSED in part.

SHARP and COWART, JJ., concur.

      . This figure represents the difference between the basic annual rent of $19,800 at the inception of the lease, and the basic rent of $35,750, specified to be paid following the making of the mortgage payment by lessor. This would be the difference between the two payments had there been no adjustment.


text:
    Larry GRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1139.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.

      James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marck C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Charged with a crime, appellant was adjudged insolvent and the public defender was appointed. He was convicted on a guilty plea and appeals an order that he pay costs of $4.00 under section 939.01, Florida Statutes (1981), and $10.00 under section 960.20, Florida Statutes (1981). The cost order is hereby modified to delete the requirement of payment of the $4.00 of court costs. Cox v. State, 334 So.2d 568 (Fla.1976); Williams v. State, 375 So.2d 584 (Fla. 5th DCA 1979); Kimble v. State, 396 So.2d 815 (Fla. 4th DCA 1981); Mack v. State, 305 So.2d 264 (Fla. 3d DCA 1974).

The Cox decision was based on section 939.15, Florida Statutes, which requires the county to pay court costs of insolvent defendants. That section is not applicable to costs taxed under section 960.20, Florida Statutes (1981), which expressly prohibits a political subdivision from being liable for such costs. Therefore, the Cox holding is inapplicable to the $10.00 cost taxed against appellant under section 960.20, Florida Statutes. There is no constitutional impediment against merely taxing costs against an indigent defendant upon conviction. Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). Therefore, the cost order is

AFFIRMED as modified.

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