text:
    THE FLORIDA BAR, Complainant, v. Richard E. WELTY, Respondent.
    No. 56769.
    Supreme Court of Florida.
    April 17, 1980.

      John A. Weiss, Branch Staff Counsel, Tallahassee, for complainant.
    Henry L. Gray, Jr. of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for respondent.
   PER CURIAM.

This is a disciplinary proceeding under article XI of the Integration Rule of the Florida Bar wherein Richard E. Welty was accused of using funds in his client account for his personal benefit. We have for review a report of the referee recommending that respondent Welty be found guilty of the violation of certain disciplinary rules and further recommending that he be suspended for a period of six months and thereafter until he shall prove his rehabilitation. The referee also recommended that he should thereafter be placed on probation for a period of two years.

The report of the referee contains the following findings of fact:

AS TO COUNT I
The Complaint of The Florida Bar has charged in Count I that the Respondent began a course of conduct in January of 1976 by which he disbursed money entrusted for specific purposes to himself as an attorney for purposes other than for which the money had been given to him, that he used trust funds to pay personal and business expenses without the knowledge and consent of his clients, that he became aware that he had created a deficit in his trust account by at least as early as May 1976, that subsequent to May 1976, Respondent continued to use his clients’ trust funds for personal expenses and incurred deficits in his trust account as high as $24,848.11, that at all pertinent times he knew or should have known he was disbursing trust funds for purposes for which they had not been entrusted to him and by reason of the above, Respondent violated Rule 11.02(4) of the Integration Rule of The Florida Bar.
AS TO COUNT II
The Complaint of The Florida Bar has charged in Count II that the Respondent closed a real estate transaction in July 1978 receiving $15,000.00 in funds which he held in trust for a client which he failed to promptly disburse because he had used at least a portion of the trust money for personal expenses to make up deficits in his trust account, and by reason of the foregoing Respondent violated Disciplinary Rule 9-102(b)(4) [9-102(B)(4)] of the Code of Professional Responsibility and Rule il.02(4) of the Integration Rule of The Florida Bar.
1. By his Answer, Respondent admitted the allegations of both counts of the Complaint, but alleging that he had a lack of knowledge of the specifics relating to his trust account until his bookkeeper advised him of the same in the summer of 1978, and alleging that he was without knowledge of the allegation that he was unable to disburse the trust funds obtained at the closing of July 1978 because he had used a portion of the money for personal expenses or to make up deficits in his trust account, and in mitigation, that he was out of his office for oral surgery 6 days in August 1978.
2. In his Answer, Respondent affirmatively admitted the chaotic state of his trust account, and that the same created disbursement difficulties. He affirmatively alleged that he has made all disbursements to his clients as required, has admitted his improprieties, and has continually and completely cooperated with The Bar. He states that he arranged to obtain a loan from his father for the purpose of balancing his trust account, and his trust account was completely balanced during the month of September, 1978. He alleged that he voluntarily submitted to an audit of the books and records of his trust account by the Grievance Department Auditor of The Florida Bar, and prays that discipline imposed be of such a nature as to permit him to continue the practice of law, and submits that an extended period of probation with periodic audits would be appropriate punishment under the circumstances.
3. The evidence discloses that the Respondent’s trust account had shortages as follows:
March 31, 1977 approximately $19,700.00
June 30, 1977 “ $24,800.00
September 30,1977 “ $19,500.00
December 31, 1977 “ $18,600.00
March 31,1978 “ $11,600.00
June 30,1978 “ $21,400.00
On September 30, 1978, the account had a credit or positive balance of approximately $5,400.00. The evidence further discloses that dispite [sic] the intervention of The Florida Bar in the matter as early as September 1978 (Bar Exhibit # 7), there was again a shortage in the Respondent’s trust account of approximately $1,040.00 on December 31, 1978, and a shortage in the account of approximately $830.00 on January 30, 1979.
While the Respondent cooperated with the Bar in making the audit investigation into this matter, and while he freely admitted the shortages existed, he denied any specific knowledge of the magnitude of the shortages, and seemed to the Referee to lack a grasp of the severity of his shortcomings. He freely admitted taking out a personal loan to cover shortages in 1977, and again in 1978, and asking his wealthy father to advance him money to balance his account.

Few breaches of ethics are as serious as the use of a client’s fund for the lawyer’s private purposes. The lawyer should guard his clients’ funds with much greater diligence and caution than his own. State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142 (Fla.1961), where the Court, despite Ruskin’s restitution, suspended him for six months and thereafter until he proved rehabilitation.

The referee cites The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970). In the Pail ules case the attorney made full restitution, admitted his misconduct, and evidenced an attitude of repentance and of rehabilitation. Pahules, in practice for nineteen years without discipline, had four minor children to support. The Court suspended him for six months with proof of rehabilitation required before reinstatement.

In State ex rel. The Florida Bar v. Fordham, 143 So.2d 457 (Fla.1962), the respondent made restitution of funds and there was evidence of prior good character. The Court held that he should be suspended for six months and thereafter until he had proved rehabilitation.

Respondent Welty admits improper handling of his trust account during the period from January 1976 through September 1978, but contends that he did not discover that the state of his trust account was chaotic until November 1977. The full extent of his problem was discovered in June 1978. In mid-1977 he borrowed $45,000.00 at the time he bought his office building and $11,000.00 of that money was applied to cover deficits in his trust account. After his accounts were audited by The Florida Bar, respondent balanced his accounts and began maintaining his balance in accordance with the Integration Rule and the Disciplinary Rule. The referee’s findings contain the following:

On September 30, 1978, the account had a credit or positive balance of approximately $5,400.00. The evidence further discloses that dispite [sic] the intervention of The Florida Bar in the matter as early as September 1978 (Bar Exhibit # 7), there was again a shortage in the Respondent’s trust account of approximately $1,040.00 on December 31, 1978, and a shortage in the account of approximately $830.00 on January 30, 1979.

This finding was in error, as The Florida Bar and respondent had stipulated that all shortages after September 30, 1978, were due solely to posting errors and delay in transit and were not intended to reflect unfavorably upon respondent Welty’s handling of his trust account. The trust account was completely balanced in September of 1978, and at the time of the institution of the grievance procedures all shortages had been corrected by the respondent.

Respondent refers us to The Florida Bar v. Austin, 259 So.2d 142 (Fla.1972), where an attorney failed to transmit to his client the proceeds of a settlement. The proceeds were not transmitted until disciplinary proceedings had been instituted. The Court approved a public reprimand.

Respondent also cites The Florida Bar v. Pink, 236 So.2d 97 (Fla.1970), where a public reprimand was given to the attorney for failure to properly account for trust funds and failure to disburse them according to his client’s direction. There was no embezzlement or misappropriation in this case.

Respondent also refers us to The Florida Bar v. Reese, 247 So.2d 718 (Fla.1971). The respondent was found guilty of withholding funds, placing them in an account of his own, and commingling those funds. He personally applied those funds to the payment of a personal obligation, making unauthorized use of the funds for his own personal benefit. He repaid the funds prior to the institution of the proceedings. He received a public reprimand. Thereafter the attorney was before this Court in The Florida Bar v. Reese, 263 So.2d 794 (Fla. 1972). In November of 1969 Reese received $1,200.00 from Henry Hughes, which was to be retained by him in trust as a down payment on a home. Reese did not retain the money in trust, but, to the contrary, put it in his own name and converted it to his own use. Repeated demands were made for the consummation of the real estate closing and for an accounting of the monies. He refused to complete the transaction and refused to account for the money in his possession until April of 1970. In August 1971 he made restitution. This Court concluded that a public reprimand was adequate discipline.

In The Florida Bar v. Novak, 313 So.2d 727 (Fla.1974), the attorney prepared a will for an elderly woman confined to a nursing home wherein the attorney was named as the sole beneficiary. He also obtained a loan from her of $24,000. The elderly woman changed her mind, another lawyer came in, a bank was appointed guardian of her property, and she changed her will. The attorney readily admitted his errors and made full reimbursement and restitution. This Court approved a public reprimand.

The Florida Bar v. Terry, 333 So.2d 24 (Fla.1976), involved a situation where an attorney was appointed guardian of his physically incapacitated and aged aunt by a court order. After his appointment he discovered $19,700.00 in a safety deposit box which he alleged that his aunt gave him on a later joint visit to the bank. The existence of the money and the disbursement thereof went undisclosed until a potential heir of the aunt intervened through counsel. No court order was made or sought authorizing the disbursement of the money. The Court found that the ward was mentally incapable of making a gift, ordered the sum returned to the estate and discharged the guardian for failure to discharge his duties and mismanagement of his ward’s property. This Court imposed a public reprimand and a continuing probationary period for three years.

Public reprimand should be reserved for such instances as isolated instances of neglect, The Florida Bar v. Larkin, 370 So.2d 371 (Fla.1979); or technical violations of trust accounting rules without willful intent, The Florida Bar v. Horner, 356 So.2d 292 (Fla.1978);. or lapses of judgment, The Florida Bar v. Welch, 369 So.2d 343 (Fla.1979). A public reprimand should never be considered sufficient discipline in instances such as this, involving deficits in a trust account extending over two years and amounting at times to over $24,000.00. The recommendations of the referee are approved and the respondent, Richard E. Welty, is suspended from The Florida Bar for a period of six months, effective May 19, 1980, and thereafter until he shall prove his rehabilitation as provided in Rule 11.10(3), and thereafter he shall be placed on probation for a period of two years. The cost incurred by The Florida Bar in the amount of $781.82 shall be paid by respondent Welty prior to the expiration of his suspension.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Seymour LONDON, Respondent.
    No. 57865.
    Supreme Court of Florida.
    April 17, 1980.
    George T. Yoss, Bar Counsel and Jacquelyn S. Plasner, Asst. Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Joseph A. Gassen of August, Gassen, Poh-lig & Milstein, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on the Referee’s Report and Record, Petition for Review, Voluntary Dismissal of Petition for Review, and Petition for Approval of Stipulation of Parties (Consent Judgment) and Entry of Final Order of Discipline.

Upon consideration of the Voluntary Dismissal of the Petition for Review filed by Respondent, it is ordered that said Petition is hereby dismissed.

On January 25, 1980, The Florida Bar filed its Petition alleging:

1. In Supreme Court Case No. 57,865, The Florida Bar Case Nos. 11L78M15 and 11L78M46, the Report of Referee . recommended that the Respondent be found guilty of violating two counts of DR 6-101(A) and three counts of DR 6-101(A)(3), and that he be suspended for a period of six months and thereafter until he shall prove his rehabilitation.
2. In the Stipulation of Parties, Mr. London has agreed to be suspended for a period of six months, and thereafter, until he shall prove his rehabilitation. Further, Mr. London has agreed to withdraw his Petition for Review in Case No. 57,-865.
3. The following Florida Bar eases are pending against Seymour London, the Respondent:
(a) The Florida Bar Case No. 11L79M47, complaint of Randall Myers, involving neglect of a legal matter entrusted to his care and failing to deliver to the client a check which the client was entitled to receive. The Grievance Committee found Probable Cause on September 20, 1979.
(b) The Florida Bar Case No. 11L79M49, complaint of Dr. Gilbert Weiss, involving failure to remit on behalf of his client monies due a third party for services rendered to said clients. The Grievance Committee found Probable Cause on September 20, 1979.
(c) The Florida Bar Case No. 11L80M18, complaint of Wanda M. Taylor, involving neglect of a legal matter entrusted to his care. This case is pending before the Grievance Committee.
(d) The Florida Bar Case No. 11L80M21, complaint of Fannie Miller, involving failure to deliver to his client funds in his possession which the client is entitled to receive. This case is pending before the Grievance Committee.
(e) The Florida Bar Case No. 11L80M25, complaint of Robert Espland, involving neglect of a legal matter. This matter is under investigation.
(f) The Florida Bar Case No. 11L80M33, complaint of Brenda Sue Mal-lon involving neglect of a legal matter. This matter is under investigation.
(g) The Florida Bar Case No. 11L80M44, complaint of Samuel Rawlins, involving neglect of a legal matter. This matter is under investigation.
4.Pursuant to the Stipulation of Parties, The Florida Bar will:
(a) Stay the proceedings in the cases enumerated above in paragraphs 3(a) through 3(g) which involve the charge of neglect until such time as the Respondent proves himself to be rehabilitated and is reinstated to the Practice of Law pursuant to [a]rticle XI, Rule 11.11, The Integration Rule of The Florida Bar.
(b) Dismiss any pending cases against the Respondent involving neglect and will not prosecute any other complaints which involve neglect that occurred prior to the date of this agreement at such time as the Respondent has rehabilitated himself and is reinstated to the practice of law.
(c)Determine whether the cases involving trust fund violations, mentioned above in paragraphs 3(a), (b) and (d), occurred due to the neglect of the Respondent or due to misappropriation on the part of the Respondent; any case due to neglect will be dismissed as discussed in paragraph 4(b) above, while any case due to misappropriation may be prosecuted by The Florida Bar.
5. Any complaints filed against the Respondent after the date of the Stipulation of Parties which involve charges other than neglect may be prosecuted by The Florida Bar.
6. Seymour London, the Respondent, is presently a patient in Institute of Living, in Hartford, Connecticut, and is being treated for a drinking problem which the respondent alleges is the cause of his neglect of his legal practice.
7. Pursuant to the Stipulation of Parties, Seymour London, the Respondent agrees:
(a) To make restitution to any clients who were injured by his actions, either through his malpractice carrier, or personally.
(b) To cooperate with any investigation conducted by The Clients’ Security Fund of The Florida Bar.
(c) To a waiver of confidentiality regarding the above-mentioned cases.
8. At its January 1980 [sic] meeting, [t]he Board of Governors of The Florida Bar approved the Stipulation of Parties,

The Petition for Approval of Stipulation of Parties (Consent Judgment) is approved, and Respondent, Seymour London, is hereby suspended from the practice of law for a period of six months effective May 19,1980, and thereafter, until he shall prove his rehabilitation pursuant to article XI, Rule 11.11 of the Integration Rule of The Florida Bar; and it is further

ORDERED that this suspension shall be effective May 19, 1980, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients; and it is further

ORDERED that Respondent shall not accept any new business.

Costs in the amount of $1,073.01 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and McDONALD, JJ., concur.

OVERTON, SUNDBERG and ALDERMAN, JJ., dissent.


text:
    Samy F. BISHAI, Appellant, v. Michael R. HALL et al., Appellees. Joseph P. MAGRE, Appellant, v. Michael R. HALL et al., Appellees.
    Nos. 58561, 58562.
    Supreme Court of Florida.
    April 17, 1980.
    Earl M. Barker and Tracey I. Arpen, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for Samy F. Bishai; and Stephen E. Day of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for Joseph P. Magre, appellant.
    Tyrie W. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellees.
   PER CURIAM.

In view of our decision in Simmons v. Faust, 358 So.2d 1358 (Fla.1978), the order of Judge Eastmoore holding the medical mediation act unconstitutional is not a trial court order appealable to this Court. This cause is therefore transferred to the District Court of Appeal, Fifth District, with directions to remand to the judicial referee for termination of medical mediation jurisdiction in accordance with Aldana v. Holub, 381 So.2d 231 (Fla.1980).

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.

       Ed. Note: This cause was transferred to the Supreme Court by the District Court of Appeal, Fifth District, 378 So.2d 857.


author: MITCHELL, HENRY CLAY, Jr., Associate Judge. SMITH,, Judge,

text:
    G & B OF JACKSONVILLE, INC., d/b/a Climax, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. GG-308.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for petitioner.
    Dennis E. LaRosa, Tallahassee, for respondent.
   MITCHELL, HENRY CLAY, Jr., Associate Judge.

G & B seeks review of an order of the Division of Beverage finding that one of G & B’s employees violated Section 798.02, Florida Statutes (1977), thereby violating Section 561.29, Florida Statutes (1977), and suspending G & B’s liquor license. We reverse.

There is no competent substantial evidence in the record establishing knowledge on the part of the licensee or any responsible officer or employee thereof of the alleged unlawful conduct of the employees. See Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969).

Accordingly, we reverse with directions to the Director of the Division of Beverage, Department of Business Regulation, to rescind the revocation of petitioner’s license.

MILLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH,, Judge,

dissenting.

I would affirm. G & B of Jacksonville, Inc. v. State of Florida, Department of Business Regulation, Division of Beverage, 371 So.2d 138 (Fla. 1st DCA 1979).


author: PER CURIAM. PER CURIAM.

text:
    James R. PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-642.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1979.
    On Rehearing Jan. 30, 1980.
    Rehearing Denied May 8, 1980.

      Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appeal dismissed under the authority of Brown v. State, 376 So.2d 382 (Fla. 1979).

GRIMES, C. J., and HOBSON and BOARDMAN, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The appellant pled nolo contendere to a charge of manslaughter reserving his right to appeal the denial of a motion to suppress certain evidence. His appeal was dismissed because on the record before us the issue of whether the motion to suppress should have been granted did not appear to be disposi-tive of the case. Appellant asks for a clarification concerning whether he would now be permitted to withdraw his plea since he was unable to obtain appellate review of the propriety of the denial of his motion to suppress. He refers to the following statement in Brown v. State, 376 So.2d 382 (Fla. 1979), the case upon which the dismissal was predicated.

Due to the varying pronouncements of the law in this area, and in order to eliminate any possibility of prejudice, petitioner will be given the opportunity to withdraw his plea of nolo contendere and plead anew if he so desires.

The state says that by pleading nolo con-tendere the appellant admitted that the state could prove its case and that should he now be permitted to withdraw his plea, he would be able to “have his cake and eat it too.” The state further notes that it “may be substantially prejudiced in proving its case by the lapse of time.”

Before the rendition of the Brown opinion there were decisions to the effect that appellate review of issues arising out of a plea of nolo contendere could be obtained only if the issues were dispositive of the case. See First Amendment Foundation of Florida, Inc. v. State, 364 So.2d 450 (Fla. 1978); Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976). On the other hand, since the supreme court concluded that Brown, himself, should have the right to withdraw his plea of nolo contendere, we find it difficult to say that this appellant who entered his plea prior to the Brown decision should not also have the same right. We are concerned, however, by the state’s suggestion that by reason of the lapse of time it may not now be able to prove its case, whereas presumably it would have been in a position to do so had the appellant pled not guilty and the case had gone to trial in due course.

In an effort to be fair to appellant and yet not place the state in any worse position than it would have been had the appellant not chosen to enter a nolo contendere plea, we have concluded to leave the question up to the trial court. We, therefore, relinquish jurisdiction for a period of thirty days with directions that the court hold a hearing to determine whether, in fact, the ruling on the motion to suppress was dispositive of the case and advise this court of its conclusion. If the court concludes that the ruling was dispositive, the record should be supplemented to reflect this, and we will then grant rehearing of our order of dismissal and decide the appeal on the merits.

If the motion is determined not to have been dispositive of the case, this court shall be so notified, and we will deny the petition for rehearing. However, in that event the trial court should allow the appellant thirty days from the date of our mandate within which to file a motion to withdraw the plea and to set aside the judgment and sentence. The court should grant such motion unless the state is able to show that by reason of events occurring since the entry of the plea, it has been prejudiced in now being able to prove its case. An obvious example would be the state’s inability to obtain the testimony of an essential witness who would have been available for an earlier trial. However, the mere passage of time, albeit a circumstance not often helpful to the state, standing by itself should not preclude a withdrawal of the plea. The burden shall be upon the state to show prejudice, but if the trial court, after hearing, finds prejudice to exist, then the motion to withdraw the plea should be denied. Under those circumstances the appellant could not legitimately complain because it was he who chose to follow the procedure of entering the nolo contendere plea and seeking appellate review of the denial of his motion to suppress. Should the appellant be denied the right to withdraw his plea, he may seek review of the order of denial by filing a new appeal in this court.

GRIMES, C. J., and HOBSON and BOARDMAN, JJ., concur.

      . Of course, had the motion for suppression in this case been directed to a confession, under Brown the motion could never have been deemed dispositive.


author: PER CURIAM. BOOTH, Judge,

text:
    ORLANDO & SONS EXXON and American States Insurance Company, Appellants, v. Joseph GIONFRIDDO, Appellee.
    No. QQ-433.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1980.
    Rehearing Denied April 2, 1980.
    C. Anthony Schoder, Jr., of Smith, Scho-der & Wallace, Daytona Beach, for appellants.
    Paul A. Bernardini, of LaRue & Bernar-dini, Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA).

On the merits, I would concur in the majority’s opinion.


text:
    Michael D. STOCKTON and Frances R. Stockton, Appellants, v. Jimmy H. KNIGHT, by and through the Personal Representative of his Estate, Manua Rae Knight, Tallahassee Memorial Hospital: Hartford Accident and Indemnity Company and St. Paul Fire and Marine Insurance Company, Appellees.
    No. PP-108.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1980.
    Rehearing Denied April 9, 1980.
    Edwin A. Green, II, of Green & Fonvielle, Tallahassee, for appellants.
    Steven M. Watkins of Watkins, Hill & Marts and J. Lewis Hall, Jr., of Hall & Booth, Tallahassee, for appellees.
   PER CURIAM.

AFFIRMED.

ERVIN, LARRY G. SMITH, and SHAW, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The appellants asserted that this court’s per curiam affirmance was implicitly bottomed on Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978), and pointed out that the Florida Supreme Court had granted cer-tiorari to determine the conflict between Aldana and State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977). However, even if the Supreme Court had quashed the decision in Aldana and affirmed that in Mercy Hospital, the' appellants would not have been entitled to relief. In fact, the Florida Supreme Court affirmed this court’s opinion in Aldana, and did not address the jurisdictional issue in Mercy Hospital, ruling instead that the Medical Mediation Act was unconstitutional as applied because “application of its rigid jurisdictional periods has proven arbitrary and capricious . . ., yet the act cannot be [constitutionally] remedied by enlarging the jurisdictional periods. . . . ” Aldana v. Holub, 381 So.2d 231 (Fla.1980). Although the parties did stipulate to a stay of medical mediation proceedings under circumstances identical to those which the judicial referee in Mercy Hospital stayed medical mediation proceedings, this case does not resemble Mercy Hospital in any other way.

In the instant case, the two-year statute of limitations began to run on January 7, 1974, when appellants first discovered their infant son had suffered brain damage. On September 17, 1975, appellants filed their claim for medical mediation, staying the limitation period. Shortly thereafter, the parties stipulated that both the medical mediation proceeding and the statute of limitations would be stayed pending the question whether the Medical Mediation Act was constitutional. Following the Supreme Court’s decision upholding the Act in Carter v. Sparkman, 835 So.2d 802 (Fla.1976), the judicial referee on February 18, 1977, lifted the stay as to the medical mediation action.

Accepting arguendo the Third District’s interpretation in Mercy Hospital that a mediation proceeding may be stayed by stipulation, the parties then had at most seven months and twenty-two days of the ten-month jurisdictional period in which to complete the mediation claim, or until October 10, 1977. The mediation panel entered its order outside the jurisdictional period, on December 13, 1977. Appellants filed their complaint in circuit court on February 10, 1978, 59 days after the filing of the panel’s order.

It is appellants’ contention that they had 60 days from the date of the order in which to file their complaint in circuit court because Section 768.44(4), Florida Statutes (1977), allows a party 60 days from either the date the panel’s order is mailed or the date jurisdiction is terminated in which to file a complaint. We disagree. The panel had no jurisdiction to issue its order. After the expiration of the panel’s jurisdiction, appellants had three months and twenty-one days (the period remaining before the statute of limitations would run when the mediation claim was filed), or until January 31, 1978 to file their complaint. The complaint filed February 10, 1978 was subject to the statute of limitations’ defense under the most liberal interpretation of the Medical Mediation Act, thus this court’s per cu-riam affirmance. The petition for rehearing and the request for certification are denied.

ERVIN, LARRY G. SMITH and SHAW, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Charles D. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1684.
    District Court of Appeal of Florida, Second District.
    March 21, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Charles D. Walker was charged by separate informations with aggravated assault (Case No. 2439), grand larceny (Case No. 2743), receiving stolen property (Case No. 2016), delivery of cocaine (Case No. 2364), and breaking and entering an automobile (Case No. 3003). Appellant entered guilty pleas to the grand larceny and aggravated assault charges. At the sentencing hearing, the prosecutor announced that the state would nol pros the remaining three cases (Nos. 2016, 2364 and 3003). The court adjudged appellant guilty of aggravated assault and grand larceny and sentenced him to three years in prison on the assault charge and seven years probation on the grand larceny charge, the sentences to run concurrently.

Subsequently, appellant requested that his prison sentence on the assault charge be modified to one year in the county jail in consideration of his entering guilty pleas to the three charges which had been nol-prossed. The court placed appellant on probation on the three nol-prossed charges for a period of seven years on each charge, the sentences to run concurrently. The sentence on the assault charge was modified to seven years probation with the specified residency of one year in the county jail, that sentence to run concurrently with the probationary term imposed in the other cases.

Two years later, appellant was found guilty of violating probation in each case and the court revoked probation and sentenced him to five years in prison on each of the five charges. Appellant filed a motion with this court asking that we temporarily relinquish jurisdiction, alleging that the modification of sentence in the assault case was a nullity since it was done during a different term of court and more than 60 days after the original sentence. This court granted appellant’s motion and the circuit court set aside the five-year sentence on the aggravated assault case and reinstated the original three-year sentence.

Appellant argues that after the state announced that it would nol-pros the three charges, the trial court lacked subject matter jurisdiction to impose probation on these charges, and later to revoke probation on the same charges. We are asked to restore appellant to the position he occupied prior to the modification of the assault sentence. The ultimate result would be that 1) the original judgment and sentence of three years in Case No. 2439 (aggravated assault) would be reinstated; 2) that the judgment and sentence of five years in Case No. 2743 (grand larceny) would be left undisturbed; and 3) the judgments and sentences in the three remaining cases (Nos. 2016, 2364 and 3003) would be vacated and set aside. Appellant’s argument has merit.

The record reveals the following remarks by the prosecuting attorney, made after the acceptance of appellant’s guilty pleas to aggravated assault and grand larceny:

MR. HOOKER: Judge, three other cases, Case No. 74-2364 the State would nol pros this case. Case No. 74-3003, the State would nol pros that case. Case No. 74-2016, the State would nol pros that case. As we noted in State v. Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979), the general rule is that “everything which occurs in a proceeding subsequent to the filing of a nolle prosse by the state is a nullity.” Following this rule, we hold that the imposition of probation on the .three nol-prossed charges were a nullity. Therefore, the trial court was without jurisdiction to revoke probation and impose a five-year sentence in Case No. 2016, receiving stolen property; Case No. 2364, delivery of cocaine, and Case No. 3003, breaking and entering of an automobile. In view of the above, we reverse the judgments and sentences in those cases. We affirm the judgment and three-year sentence in Case No. 2439, aggravated assault. We likewise affirm the judgment and five-year sentence in Case No. 2743; however, it is necessary to remand this case to the trial court in order that it may determine whether the sentence is to run consecutive or concurrent to Case No. 2439.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

OTT and RYDER, JJ., concur.

      . The sentences were imposed as follows:
      No. 2016, receiving stolen property, 5 years.
      No. 2364, delivery of cocaine, 5 years to run consecutive to No. 2016.
      No. 2439, aggravated assault, 5 years to run consecutive to Nos. 2016 and 2364.
      No. 2743, grand larceny, 5 years to run concurrent to No. 2016 (The judge orally imposed the sentence to run consecutive to No. 2016, but the final written order stated that the sentence would run concurrent to No. 2016.)
      No. 3003, breaking and entering of an automobile, 5 years to run consecutive to No. 2743 and concurrent to No. 2364.


author: OTT, Judge.

text:
    BEAVER INDUSTRIES, INC., a Florida Corporation, Appellant, v. WESTLAKE DEVELOPMENT CORPORATION et al., Appellees.
    No. 79-1459.
    District Court of Appeal of Florida, Second District.
    March 21, 1980.

      Robin A. Vaillancourt, P. A., Largo, for appellant.
    Carl 0. Dunbar, Jr., of Dunbar, Dunbar & Roman, P. A., Dunedin, for appellees.
   OTT, Judge.

Beaver Industries, Inc. appeals from a final judgment and from orders dismissing its first and second amended complaints with prejudice.

The primary issue raised by this appeal is whether the recording of a Claim of Lien under Section 713.08, Florida Statutes (1977), constitutes “legal action.”

Appellant, a subcontractor on a condominium development project, sought to recover from appellee, Westlake Development Corporation, as owner, the balance due to it from the general contractor. The court dismissed the complaint, ruling that the only meritorious count was that predicated on an indemnity contract contained in a letter from appellee to appellant dated July 17, 1974. In the letter, appellee guaranteed payment within thirty days of the balance due appellant from the general contractor, provided appellant did not take “legal action” to secure its account. The court declared that the condition was violated by appellant recording a claim of lien against appellee’s property within the thirty days. The amended complaint was dismissed on June 18,1979, with leave until June 22,1979 to amend.

On June 26, 1979, appellant filed its second amended complaint, realleging its claim under the indemnity contract with appellee. This complaint was dismissed with prejudice and final judgment was entered for appellee. The trial court cites two reasons for the dismissal with prejudice. First, it states that “[appellant’s] Second Amended Complaint was neither filed with the court nor served on the Defendant . by June 22, 1979, as required by the court’s order of June 18, 1979.” Second, that the court was “unable to find any additional meritorious claims not heretofore ruled upon by the court which would justify denial of the motion to dismiss.” We do not agree that dismissal with prejudice was proper on either of these grounds and therefore we reverse.

Under the indemnification contract with appellee, appellant promised forebearance from “legal action” for a thirty-day period. The indemnity contract was dated July 17,1974. On August 5,1974, appellant filed its claim of lien for the unpaid balancé of its contract. The foreclosure complaint was not filed until August 4, 1975.

We hold that, under the facts involved herein, the filing of a claim of lien is not “legal action.” The recording of a claim of lien pursuant to Section 713.08, Florida Statutes is a statutory prerequisite to the bringing of an action to enforce a statutory mechanic’s lien. An action to foreclose a mechanic’s lien commences, as with any other suit, when the complaint is filed in court, not when a subcontractor files a notice of intent to claim a lien with the owner. Corry Construction Co. v. Hector Construction Companies, Inc., 363 So.2d 1125 (Fla. 1st DCA 1978). Thus, appellant did not violate the conditional offer by filing its claim of lien.

We further hold that the late filing of the Second Amended Complaint by four days, standing alone, does not warrant dismissal with prejudice under the circumstances present here.

Accordingly, the final judgment and orders appealed from are reversed and the cause is remanded for further proceedings consistent with this opinion.

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


author: GRIMES, Chief Judge.

text:
    Stephen McGUIRK, Appellant, v. STATE of Florida, Appellee.
    No. 79-1838.
    District Court of Appeal of Florida, Second District.
    March 21, 1980.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

Appellant pled guilty to aggravated assault. There was no plea bargain involved. The court adjudicated him guilty and sentenced him to a term of six to eighteen months in prison. It then suspended the sentence, except for time served, and placed him on probation for three years. Thereafter, but within the probation period, appellant pled guilty to a violation of his probation. The court revoked probation and committed him as a mentally disordered sex offender. Following treatment by the Department of Health and Rehabilitative Services, the court sentenced him to three years in prison with credit for time spent in jail.

On appeal, appellant contends that the court could not incarcerate him for a period in excess of the original six to eighteen month term. He first points to cases which hold that Florida courts no longer have the inherent authority to suspend the imposition of one’s sentence and hold it over him pending good behavior. State v. Bateh, 110 So.2d 7 (Fla.1959); Helton v. State, 106 So.2d 79 (Fla.1958). Thus, he argues that once he was sentenced to six to eighteen months, any attempt by the court to suspend sentence and impose probation was a nullity. He therefore reasons that the court can now imprison him only according to the original sentence.

Appellant’s entire argument ignores the clear import of Sections 948.01(3) and 948.-01(4), Florida Statutes (1979), which provide that a court may suspend some or all of a defendant’s sentence in order to place him on probation. While the court could have withheld the imposition of any . sentence whatsoever when it placed appellant on probation, the fact that the court imposed and then suspended a sentence did not affect the validity of the probation.

In State v. Holmes, 360 So.2d 380 (Fla.1978), the supreme court answered the next question appellant poses as to whether the trial judge could sentence him upon the violation of his probation to more than the term of the original suspended sentence. There, the trial court sentenced two defendants to three years in prison, suspended one and one half years of the sentences and imposed four year probation terms. It sentenced the third defendant to five years incarceration, suspended two years and imposed four years probation. The Fourth District Court of Appeal held that the combined prison and probationary periods could not exceed the maximum five year sentence authorized for the crime charged and reduced the probationary periods accordingly. Holmes v. State, 343 So.2d 632 (Fla.4th DCA 1977). In the course of approving that decision, the supreme court went on to point out that if the trial court subsequently revoked probation, it could impose any sentence which it could have originally imposed minus any jail time previously served as part of the sentence.

The difference between the position of appellant and that of the defendants in Holmes is that the court suspended appellant’s entire sentence whereas Holmes’ defendants received only a partial suspension. Nevertheless, the effect of the supreme court’s decision with respect to two of the three Holmes' defendants was that if they violated their probation they could receive sentences which would exceed the total time of the original sentences imposed upon them. Hence, there was nothing to preclude the court in the present case from sentencing appellant to a term of three years which was well within the maximum prescribed by statute for the offense of aggravated assault. Sections 784.021, 775.-082, Florida Statutes (1979).

Finally, appellant contends that the court should have given him credit for the period of time he was in custody pursuant to his commitment as a mentally disordered sex offender under Chapter 917. We agree. Section 917.014(1), Florida Statutes (1979). See Hall v. State, 358 So.2d 891 (Fla. 2d DCA 1978).

Accordingly, we affirm the judgment but remand the cause with directions that the court give appellant credit for the time he spent in the mentally disordered sex offender program.

SCHEB and RYDER, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Frank CARCAISE, Petitioner, v. The Honorable J. Robert DURDEN, as Circuit Court Judge, Florida Seventh Judicial Circuit, Respondent.
    No. 79-89.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.

      I. Paul Mandelkern and James M. Russ, Orlando, for petitioner.
    Robert K. Good, Sp. Asst. State’s Atty., Orlando, and Lawrence J. Nixon, Asst. State’s Atty., Daytona Beach, for respondent.
   DAUKSCH, Chief Judge.

Petitioner seeks our Writ of Prohibition in order to prevent his prosecution for violation of the laws proscribing unlawful sale of securities. Ch. 517, Fla.Stat. (1973). When the state seeks to prosecute after the statute of limitations has expired, the proper method to prevent the prosecution is by prohibition. Reino v. State, 352 So.2d 853 (Fla.1977).

Petitioner and others have been charged in an information filed May 18, 1977 alleging violations of the securities laws which violations, in various counts, are alleged to have occurred between June 1, 1973 and December 31, 1974.

The question on appeal is whether we should apply the general two year statute of limitations applicable to crimes generally or the special five year statute of limitations for securities violations. If the former applies, then we must prohibit the trial judge from allowing the prosecution to continue; if the latter is applicable, then the statute of limitations did not expire before this case began and the prosecution should continue.

The statute of limitation in effect at the time of the incident giving rise to the criminal charges is the one to be applied in determining the timeliness of the prosecution. State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974). At the time petitioner is alleged to have committed the crimes, there were two statutes of limitations; one concerning non-capital crimes generally and the other concerning securities violations particularly. Generally speaking, a special statute of limitations which addresses itself to specific matters will take precedence over a general statute.

But petitioner urges that the generality cannot apply here, because in consideration of the history of legislative enactments of statutes of limitations, we must resolve an apparent conflict between the two relevant statutes in favor of the later one enacted. In 1951, Chapter 26970, Laws of Florida (1951), set the statute of limitations concerning securities violations at five years. This changed the existing criminal statute which provided a two year statute limitations for all crimes. Section 932.05, Fla. Stat. (1949). Petitioner next points out that in 1965 the five year limitation was reenacted and remained the applicable time period for prosecution until 1971 when Chapter 70-339, Laws of Florida, as amended Florida Statutes 932.465 (1973), became effective on January 1 and provided that all non-capital crimes must be prosecuted within two years after commission. We must decide whether section 932.465 also applies to securities violations, particularly the ones alleged here.

Petitioner urges, and we agree, the latest enactment takes precedence over prior enactments. State v. Board of Public Instruction, 113 So.2d 368 (Fla.1959). We also agree with the proposition that the legislature is presumed to know its own statutes and when it enacts a new statute, it is done with that knowledge. Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940). However, we are also guided by the “general presumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication.” Oldham v. Rooks, 361 So.2d 140, 143 (Fla.1978) (emphasis added). See also State ex rel. Gerstein v. Hialeah Race Course, Inc., 245 So.2d 53 (Fla.1971).

Using the reasoning in Oldham, we cannot help but decide the legislature fully intended to retain the five year statute of limitations as it pertained to securities violations rather than by implication repeal that statute by another found somewhere else in the books. This is especially so since the legislature again dealt with the five year limitations statute in 1971 after the effective date of the general two year statute when in Chapter 71-136, Laws of Florida, it changed the wording in regard to the punishment and left the limitations part alone.

WRIT OF PROHIBITION DENIED.

CROSS and SHARP, JJ., concur.

      . Fla.Stat. 932.465(2) (1973). Prosecution for offenses not punishable by death must be commenced within two years after commission, but if an indictment, information, or affidavit has been filed within two years after commission of the offense and the indictment, information, or affidavit is dismissed or set aside because of a defect in its content or form after the two year period has elapsed, the period for commencing prosecution shall be extended three months from the time the indictment, information, or affidavit is dismissed or set aside.

      . Fla.Stat. 517.302 (1973) allows five years within which to begin prosecution.


text:
    STATE of Florida, Appellant, v. TRADER’S COVE COMMUNITIES CORP., LTD., et al., Appellees.
    No. 79-213.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Rehearing Denied April 30, 1980.
    Philip J. Snyderburn, Sp. Asst. Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Robert K. Good, Asst. Gen. Counsel, Orlando, and Lawrence J. Nixon, Asst. State Atty., Daytona Beach, for appellant.
    James M. Russ and I. Paul Mandelkern, Orlando, for appellee, Milton R. Wasman.
    Douglas T. Huie, Asst. Public Defender, Daytona Beach, for appellee, William S. Gracey.
    No appearance for appellee, Trader’s Cove Communities Corp., Ltd.
   DAUKSCH, Chief Judge.

The issue in this case is the same issue we have resolved in Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980). In this case the trial judge dismissed charges against the appellees on the grounds the statute of limitations had expired. As we held in Carcaise, the statute had not expired so this cause is remanded to the trial court for reinstatement of the charge and the further prosecution of them.

REVERSED AND REMANDED.

CROSS and SHARP, JJ., concur.


author: HERSEY, Judge.

text:
    Walter D. FULLER, Roberta Timmerman and the Ohio Casualty Insurance Company, an Ohio Corporation, Appellants, v. Mildred Elizabeth RINEBOLT and Guy S. Rinebolt, her husband, Appellees.
    No. 78-823.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Rehearing Denied May 22, 1980.
    Robert J. DiMauro of Anderson & Anderson, P.A., Fort Lauderdale, for appellants.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appel-lees.
   HERSEY, Judge.

This action arose out of an automobile accident which occurred on October 19, 1975 at the intersection of South Andrews Avenue, a four-lane north-south highway, and 17th Street, a four-lane east-west highway in Fort Lauderdale. Appellant, Roberta Timmerman, defendant below, was traveling in a westerly direction on 17th Street at a slow rate of speed, and appellee, Mildred Rinebolt, plaintiff below, was traveling in an easterly direction on 17th Street at a slow rate of speed. The appellant proceeded to make a left turn onto South Andrews Avenue, at which point the vehicle driven by appellee collided with the vehicle driven by appellant. Neither the parties nor any witness could explain exactly why the accident happened. Appellee, Mildred, suffered injuries and brought an action against the appellant and her insurance company.

This appeal was taken from a final judgment entered pursuant to a jury verdict awarding the appellee, Mildred, $15,600.00 and appellee’s husband, Guy, $2,500.00. The jury found the appellant one hundred percent negligent and the appellee, Mildred, not negligent. The medical testimony established a fifteen percent permanent disability of appellee’s left hand.

It should be noted at the outset that neither the question of the sufficiency of the evidence to support the verdict nor the question of whether the verdict is against the manifest weight of the evidence has been raised by appellants. The briefs are similarly silent on the issues of the extent of plaintiff’s injuries and the amount of damages.

The main thrust of appellants’ attack on the judgment and the post trial orders denying a motion for new trial, a motion for remittitur and a motion for judgment notwithstanding the verdict is that the cumulative effect of several errors was “such as to deny to defendant the fair and impartial trial that is the inalienable right of all litigants in this state and in this nation.” In order to evaluate the cumulative effect of the errors noted by appellants it is necessary to review each of them and then to assess the impact which collectively they might have had upon the jury.

One of appellants’ witnesses, a policeman, had been subpoenaed to testify at trial. At one point during the trial he was in the courthouse but became ill. The court took precautions to accommodate the situation, offering to put the policeman on the stand at appellants’ convenience. At some point the policeman left the courthouse and was not available to testify. Appellants moved for a mistrial. The motion was denied. Appellants now contend that the trial court should have treated the motion for mistrial as a motion for continuance. Appellants did not actually move for a continuance, nor was there even a proffer of testimony. It was incumbent upon appellant to show the subject matter of the policeman’s testimony and that it would not be cumulative. Smith v. State, 59 So.2d 625 (Fla.1952). Percznski v. State, 366 So.2d 863 (Fla.4th DCA 1979). Assuming that the motion for mistrial was the equivalent of a motion for continuance, the trial court has wide discretion to grant such a motion and, where no prejudice is shown, may properly deny it. Riggins v. State, 283 So.2d 878 (Fla. 1st DCA 1973), City of Miami v. Claughton Hotels, Inc., 170 So.2d 77 (Fla.3rd DCA 1964).

Appellants maintain that the police officer was the only independent witness to observe the physical evidence at the accident scene. In the absence of the police officer the appellant, Roberta Timmerman, drew a diagram of the intersection where the accident occurred. Appellants contend that the police officer could have prepared a much more accurate diagram. There was no evidence nor even an allegation as to any physical feature present at this intersection so unique that it might have had a bearing on the issue of liability. If such a unique physical feature did exist, then certainly the defendant would have been aware of it and could have included it on her diagram. Moreover, appellants do not argue the existence of any such unique physical feature nor do appellants point out any fact to which the police officer could have testified that would have made any difference to the jury. The appellants having made no proffer in the trial court and having made no showing on appeal that such a proffer would have revealed evidence that was not otherwise available, it was not error to deny the motion for mistrial.

Appellants, noting the failure of ap-pellees’ counsel to timely produce a witness list, further contend that the trial court committed reversible error by permitting two witnesses whose names were not on the witness list to testify. The authorities cited in appellants’ own brief recite the elementary rule that the trial court has broad discretion in determining whether or not to allow a witness to testify where the opposing party has not had prior notice as to his identity. The Second District Court of Appeal, in the ease of Colonnel v. Mitchels, 317 So.2d 799 (Fla.2nd DCA 1975) pointed out that while the lower court may exclude the testimony of a witness if the testimony is prejudicial to a party, the testimony should be allowed in the absence of a showing of such prejudice. The trial court is in a much better position than the appellate court to determine whether the testimony of a witness constitutes surprise or is in some other manner prejudicial. The trial court was in a position to assess the impact of the testimony on the jury and apparently found no such prejudice. We find no error.

Appellants next contend that the trial court erred by admitting into evidence a diagram drawn during the trial by appellant, Roberta Timmerman, and subsequently altered by appellees’ counsel over appellants’ objection. Nowhere do appellants point out how the diagram or its alteration could have misled the jury. No abuse of discretion is shown.

It is further contended that the trial court committed reversible error by commenting upon the diagram drawn by the defendant, Roberta Timmerman, in such a manner as to lead the jury to believe that the diagram was a correct representation of the intersection. The only comment reflected in the transcript shows that the testimony was responsive to a remark by appellants’ counsel that there was a problem with the diagram. The court said: “She’s got it pretty close. See where her dotted line is?” This comment referred not to the correctness of the diagram but simply to the correctness of the dotted line illustrating the path taken by the vehicle. We find no error.

Lastly, appellants argue that four comments made by appellees’ counsel in the presence of the jury severely prejudiced the case to such a degree that the trial court committed reversible error in allowing the statements to be made. No useful purpose would be served by considering each of the remarks in context and in detail. Suffice it to say that objections were properly sustained and we find no error. The personal references to the jury by appellees’ counsel in closing argument were improper, but they did not constitute a “golden rule” argument.

The question remains, however, whether the cumulative effect of the alleged errors denied appellants a fair and impartial trial. We think not. No reversible error has been demonstrated and while the cumulative effect of several rulings bordering on error might under appropriate circumstances deprive a party of a fair and impartial trial justifying reversal, that is not the case here.

The final judgment and the orders on motions are affirmed.

AFFIRMED.

CROSS, SPENCER C., Associate Judge, concurs.

DAUKSCH, JAMES C., Jr., Associate Judge, concurs in conclusion only.


author: CAMPBELL, Judge.

text:
    Thomas A. SMITH, Appellant, v. Sharon B. SMITH, Appellee.
    Nos. 78-2141, 79-317.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.
    Philip W. Dann of Baird, Robinson & Dann, St. Petersburg, for appellant.
    John M. Edman of Meros, Coit, Edman, Meros & Smith, P. A., St. Petersburg, for appellee.
   CAMPBELL, Judge.

The appellant husband seeks review of certain portions of a final judgment of dissolution of marriage and a post-judgment award of attorney’s fees and costs to the appellee wife. The trial court specifically retained jurisdiction in its final judgment of dissolution to make an award of attorney’s fees and costs.

When the parties married in 1962, their liabilities exceeded their assets by $35,000. They separated in 1977 after three children were born of the marriage: two girls and a boy, aged thirteen, ten and nine at the time of the final judgment.

At the time of the final judgment, the wife was thirty-six years of age and had one and one-half years of college. She was an airline stewardess at the time of the marriage and continued working until the first child was born, approximately one and one-half years thereafter. Since that time she has not worked, functioning instead as a housewife and a mother. She previously obtained a real estate license but has never engaged in that business nor does she express any desire to engage in such business. The wife has experienced certain health problems which limit her activities to some extent.

The husband is an attorney with a limited practice. His principal activities are devoted to several closely-held and interrelated corporations in the food service industry. His gross income in 1977 was $61,500. Exhibits introduced at the final hearing show his net worth to be approximately $2,000,-000.

This court’s principal concern in this case is the first issue raised by the husband; that is, did the trial court err in concluding that the husband had failed to establish a special equity in three parcels of jointly owned property which the court determined by its final judgment should continue to be jointly owned by the parties. The three parcels involved are a vacant lot in Hawaii, a condominium in Pinellas County and four contiguous, unimproved residential lots located on Clear Avenue in Tampa.

Clearly consistent with the holdings of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), even had the trial judge determined that the husband had a special equity in these properties, he could have, upon a proper finding, still awarded all or a portion of his interest to the wife as additional lump sum alimony. The trial court did not follow that possible avenue of relief, however, but instead denied the husband’s request for a finding of a special equity. The husband’s sole attempt to establish a special equity was by an attempted showing that the properties were acquired with funds he received from an inheritance unconnected with the marriage.

Thus, we must determine, in light of Ball v. Ball, 335 So.2d 5 (Fla.1976), whether the trial judge properly refused to find a special equity in the husband. In the case of all three properties, the initial acquisition of title was as tenants by the entirety.

There was evidence before the trial court that the husband did receive a $250,000 inheritance from a Martha Kreher probably sometime in 1974. The time of receipt is problematical because we have to use other, non-direet evidence to backtrack to a probable date that the husband received the inheritance. The will of Mrs. Kreher was not offered by either party. No evidence from the probate estate of Mrs. Kreher nor any financial records of the husband were offered to establish the date he actually received the inheritance. He was never specifically asked when he received the inheritance. The only indication in the record as to when it was received comes following a question asked of him by his counsel about the Pinellas County condominium, the first of the three parcels in dispute that we must consider.

The question asked of husband by his counsel, and concerning the condominium was, “It was bought in 1974?” The husband replied, “Yes. And we financed it through the Clearwater Federal Savings and Loan.” The husband also stated at that time, “We bought it primarily for the children.” When asked a short time later where the sums came from for the purchase of that property he replied only, “That was about the time that I got the money from the inheritance.”

The exhibits filed in the proceeding below by the wife show that the condominium was purchased June 27, 1974, for $43,500. Both parties signed a note and mortgage with Clearwater Federal Savings and Loan Association for $34,800 of the purchase price, payable $389.48 per month until paid. In a March 29, 1974, financial statement of the husband filed for the purpose of securing a commitment for that loan, he lists under “other assets” a “vested inheritance” of $250,000.

The wife testified that the condominium was acquired in 1974. When asked how they happened to acquire the condominium she replied, “It was for our family. Our home was small, fairly small, and instead of building right away we decided that it would be a good recreational place for the children to having during the summer months and on the weekends.”

Since the will of Mrs. Kreher was not part of the record before the trial court, there exists conflict as to the intent of her bequest because of the differing testimony of the parties. The husband testified that Mrs. Kreher was a friend and confidante of his and that he received the bequest, put it in a savings account in his name alone and used it for various things over a period of time. He further testified that none of it was intended for the wife. The wife testified that Mrs. Kreher was a friend of both parties and visited in their home and they in her home. Both parties testified that she took them both on trips to Switzerland and other places at her expense. The wife further testified that Mrs. Kreher informed both parties they would be receiving a copy of her will in the mail and that the money was supposed to be for both parties. Finally, she testified that the husband told her, “That Martha had left us $250,000.”

The second of the three parcels in dispute is the vacant lot in Hawaii. The uncontra-dicted testimony of the wife concerning the date of acquisition of the property was that in her “guess” it was seven years prior to the time of the final hearing in 1978. The husband’s testimony concerning the lot was that he had a friend selling real estate in Hawaii, that the friend owned two lots and, “It was $2,000 down and I took the balance on the loan.” He at no point identified where the money came from that paid for that property.

The third of the three parcels of property in dispute consists of four residential lots on Clear Avenue in Tampa. The wife testified that these lots were purchased in 1976 for $55,000. They were in a residential subdivision of Tampa surrounded by existing homes and were purchased in the parties’ joint names for the purpose of building a new and larger home for their family. The husband testified that he used $15,000 from the inheritance from Mrs. Kreher to make the down payment and financed the $40,000 balance of the purchase price at the Sun Bank.

In regard to all three parcels, the husband was asked the following question and gave the following answer:

Q: Did you say to your wife when you accepted the deed to that property and to the house and the property on Clear Avenue in Tampa and the condominium — did you say to her that that was not her property and that that was your property?
A: I didn’t intend it to be a gift. It was not in those words, no.

In Ball v. Ball, supra, a case in which the respondent did not appear or file a brief, the supreme court quashed a decision of this court which had affirmed a trial court’s ruling that a wife’s transfer to herself and her husband as tenants by the entirety of real property acquired as a direct result of an inheritance from the wife’s mother created a presumption that she intended a gift to her husband. We also affirmed the trial court’s ruling that the gift presumption was not overcome by a mere showing that the wife supplied all the funds for the property. In quashing this court’s decision, the supreme court held that, “a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entire-ties was supplied by one spouse from a source clearly unconnected with the marital relationship.” 335 So.2d at 7 (emphasis added). The supreme court noted further, however, that, “Ordinarily a special equity will not arise where property held as tenants by the entireties is acquired with funds generated by one working spouse, while the other spouse performs normal household and child-rearing responsibilities.” 335 So.2d at 7, n. 7.

Here, the condominium of the parties was originally acquired in 1974 as a tenancy by the entirety basically by means of a purchase money mortgage and primarily for the recreational use of the family. There was no evidence produced to trace any inherited funds into the down payment and for all the record shows the property was acquired before the husband actually received the inheritance.

As closely as can be established from the record, the Hawaii property was acquired as a tenancy by the entirety in 1971, some three years prior to the time the husband speculates he received the inheritance.

As far as the record discloses, the residential lots on Clear Avenue in Tampa were acquired in 1976 as a tenancy by the entirety for the purpose of constructing a new and larger home for the parties and their children. Even if the inheritance could be said to have come to the husband alone from a source clearly unconnected with the marital relationship, which is doubtful in view of the lack of evidence in the record, the use of $15,000 of those funds to apply toward the $55,000 purchase price is not of itself sufficient to establish a special equity in the husband. The evidence that title was taken as tenants by the entirety for the purpose of constructing a new home was also sufficient contradictory evidence for the court to conclude that a gift was intended of even that $15,000 down payment.

This case clearly does not come within the holding of Ball v. Ball, supra, that an unrebutted showing that all the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship creates a special equity. The refusal of the trial court to find a special equity in the husband and thereby leaving the parties as joint owners of the three parcels of property is supported by the facts established in this case construed pursuant to the holdings of Ball v. Ball, supra.

The husband also contests the trial court’s award of lump sum alimony and attorney's fees and costs to the wife. We conclude that the court came within the parameters of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), in making these awards.

The trial court awarded attorney’s fees to the wife’s attorneys after the notice of appeal from the final judgment of dissolution had been filed. However, it had specifically retained jurisdiction to do so in its final judgment. The amount of the award of attorney’s fees was based on the only testimony presented to the trial court as to the reasonableness of such fees. During the oral argument on this cause, the husband called this court’s attention to its recent decision of Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979), in which we held that an award of attorney’s fees by the trial court entered after the filing of a notice of appeal from a final judgment of dissolution of marriage was void for lack of jurisdiction. In that case this court’s attention was not directed to nor did we consider Florida Rule of Appellate Procedure 9.600(c), which provides that in dissolution of marriage cases the trial court shall retain jurisdiction after the filing of a notice of appeal for the purpose of, among other things, entering and enforcing orders pertaining to costs and attorney’s fees. We, therefore, recede from Judge v. Judge, supra, insofar as Florida Rule of Appellate Procedure 9.600(c) provides that after the filing of the notice of appeal in dissolution of marriage cases the court shall retain jurisdiction of the proceedings for certain specifically enumerated acts.

We have considered the other points raised by the husband and find them to be without merit. Accordingly, we affirm the judgment of the trial court.

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


text:
    Murray TALL, Individually and as personal representative of the Estate of Helen Tall, Deceased, Appellant, v. MERCY HOSPITAL and Dr. Al Damus, Appellees.
    Nos. 79-1419, 79-1753.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Rehearing Denied May 21, 1980.
    Hall & Hauser and Richard F. O’Brien, III, Miami, for appellant.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Gordon v. City of Belle Glade, 132 So.2d 449 (Fla.2d DCA 1961).


text:
    Richard MADDALENA, d/b/a a Touch of Class Steam Carpet Cleaning, Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, a New York Corporation Authorized to do business in Florida, Appellee.
    No. 78-2316.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied May 19, 1980.

      Harry S. Raleigh, Jr., of McCune, Hias-sen, Crum, Ferris & Gardner, Ft. Lauder-dale, for appellee.
   HERSEY, Judge.

This is an appeal from a final judgment of dismissal based upon lack of jurisdiction. The trial court found that appellant’s damages would be limited to an amount which does not reach the jurisdictional threshold of the circuit court.

While the record discloses that some of the elements of damage may be speculative and other elements may be difficult of proof, the extent of damages alleged could exceed $2,500.00. We therefore reverse.

No testimony was taken in the lower court since the hearing on the motion to dismiss preceded a trial. Accordingly, we rely on the pleadings and the briefs for the factual background.

Until April of 1976, appellant, Richard Maddalena, doing business as “A touch of Class Steam Carpet Cleaning,” had a place of business in Pompano Beach. His telephone service included advertising in the white pages of the Pompano Beach telephone directory, published by appellee. Sometime in April of 1976 appellant moved his business to Fort Lauderdale, and he was therefore assigned a new telephone number. Simultaneously, appellant was provided by appellee with “a reference of calls” service. The purpose of this service is to advise callers of a changed or new telephone number. The service was cancelled by appellee without notice to appellant in June of 1976.

In October of 1976 the new Pompano Beach telephone directory was distributed. This directory contained appellant’s correct Fort Lauderdale telephone number in plain type and his former number in bold type. This was admittedly an error caused by appellee, as a result of which appellee reinstated the “reference of calls” service. In May of 1977 this service was again can-celled without notice to appellant.

In September of 1977 the new Pompano Beach telephone directory was distributed and the listing error appeared for the second time.

The complaint alleges that appellee was negligent, not only for continuing the erroneous listing but also for failing to provide “reference of calls” service in order to minimize appellant’s damages resulting from the double error. Appellant further alleges that appellee assigned appellant’s Pompano Beach number to a new subscriber during the interim, compounding his damages.

The motion to dismiss was based upon the premise that appellant’s damages are narrowly circumscribed by either one of two documents. The first is the general subscriber’s services tariff, which is the tariff agreement between the Florida Public Service Commission and the state’s telephone companies, and which has the force of law. The applicable provision of the tariff is as follows:

Liability of the company for damages arising out of impairment of service provided to its subscribers such as defects or failures in facilities furnished by the company or mistakes, omissions, interruptions, delays, errors or defects in the provision of its services set forth herein or any portion of its services, occurring in the course of furnishing such facilities or services, and not caused by the negligence of the subscriber, or of the company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision shall, in no event exceed an amount equivalent to the proportionate charge to the subscriber for the period of service during which such mistake, omission, interruption, delay, error or defect in transmission or defect or failure in facilities or services occurs. (Section A2.5.1. of the General Subscribers Service Tariff.)

In our view, reliance on the tariff as a limitation of liability in this instance is misplaced. The quoted portion provides for a limitation of liability for errors or omissions “. . . not caused by the negligence of the subscriber, or of the company failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision . . . .” The complaint on its face alleges both acts and omissions by agents of appellee which, if proven, would seem to show a failure to maintain proper standards of operation or, at the very least, the lack of reasonable supervision. We accordingly hold that the tariff is not an effective limitation of liability in this case.

As an alternative limitation of liability appellee relies on the directory advertising order entered into between the parties and specifically paragraph six of that order which provides:

The Telephone Company’s liability on account of errors in or omission of such advertising shall in no event exceed the amount of charge for the advertising which was omitted or in which the error occurred in the then current directory issue and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred.

It is true that one of the negligent acts complained of was the inappropriate printing in bold face of appellant's abandoned phone number. Repetition of the same error for two succeeding years might well justify a finding that the second printing does not come within the contractual exception. More important, the acts complained of are not merely the erroneous listing, but also, unilateral termination on two occasions of the “reference of calls” service and the assignment of appellant’s former telephone number to another subscriber while the number was listed as appellant’s. These actions clearly fall outside the scope of the exception. The compounding effect of the successive acts may in fact amount to gross negligence. If the proximate cause of the damage allegedly sustained by appellant is the negligent action of appellee rather than the listing itself, then this limitation of liability is clearly not available to appellee as a legal defense.

Having determined that no effective limitation arises from either of the written provisions relied upon by appellee on the record before this court, it follows that the amount of damages will be effectively limited only by appellant’s ability to prove them and to show a causal relationship. The action was therefore appropriately brought in the Circuit Court because the amount in controversy insofar as the pleadings show exceeds $2,500.00.

During the course of the proceedings, appellant filed an action in the County Court seeking damages for the period of time from June of 1978 to October of 1978. The final judgment of dismissal in that court was specifically based upon a determination by the court “that the plaintiff was unable to present evidence as to his damages.” That judgment does not constitute res judicata as to the present action. It does, however, furnish the basis for an es-toppel by judgment precluding appellant from recovering damages in this litigation for the period placed in issue by the pleadings in the County Court and determined by the final judgment.

We therefore reverse and remand the cause to the Circuit Court for further proceedings not inconsistent with the foregoing determinations.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Michael David LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2335/T4-273.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Rehearing Denied May 5, 1980.
    Richard L. .Jorandby, Public Defender, Terence Kann, Legal Intern, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction of burglary and the question on appeal is whether the trial court erred in denying a motion to suppress evidence. It is our con-elusion the evidence was seized from the appellant in an illegal fashion in violation of the fourth and fourteenth amendments to the Constitution of the United States and article I, section 12, of the Constitution of the State of Florida. Therefore we reverse the order denying the suppression of the evidence and order appellant discharged.

Appellant was seen by patrolling police officers in the early morning hours as he was walking down a public street carrying a large brown grocery bag and a smaller brown paper bag. These uniformed officers pulled ahead of appellant, stopped their marked patrol car and waited outside the car for appellant to come closer. Another car pulled up, stopped, and appellant entered that car and sat down. The policemen told the driver to wait so they could talk to appellant and as they looked into the car they could see appellant’s large bag was full of assorted cigarettes. Appellant was advised of his Miranda rights, requested to go to the police station with the officers where he admitted he broke into a poolhall and stole the cigarettes and money from vending machines. The small bag contained many coins. Appellant pleaded nolo contendere to the burglary and specifically reserved his right to appeal the unlawful search.

Since the officers had neither an arrest nor search warrant, the only legal way they could have detained the appellant was if they had reasonable grounds to believe he had committed a violation. If they had such a reasonable belief, also defined as “founded suspicion,” then the Florida Stop and Frisk law, section 901.151(2), Florida Statutes (1979), gives the authority for the detainer. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Rheiner, 297 So.2d 130 (Fla. 2d DCA 1974); Bennett v. State, 350 So.2d 14 (Fla. 4th DCA 1977).

The facts of this case are rather similar to the facts in Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978), where that appellant was seen in possession of a paper bag acting “suspiciously.” As in Ingram, there was no legally sufficient reason for the officers to detain this appellant nor his companion in the car just because appellant was carrying two paper bags down the street in the early morning hours. No burglary nor other crime had been reported and appellant displayed no indicia of criminality except the bags. See also Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978). Because the initial stop was illegal all that flowed from it was essentially illegal and the fruits of the search, along with the confession, cannot be used in trial against the appellant. Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977). Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The order denying the suppression of evidence is reversed and appellant is ordered discharged.

REVERSED.

COBB, J., concurs.

CROSS, J., dissents without opinion.

      . Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.


author: VANN, Associate Judge.

text:
    Morris FOX and Jean Fox, his wife, Appellants, v. Phil PERRY and Therese Perry, his wife et al., Appellees.
    No. 79-945.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Rehearing Denied May 23, 1980.
    Rash, Katzen & Kay and Howard I. Kay, South Miami, for appellants.
    Buchbinder & Elegant and Ira M. Elegant, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, Associate Judge.

This appeal, arising out of a complaint seeking damages on a promissory note, comes to us from (1) an order of the Dade County Circuit Court granting a final summary judgment to the defendants and (2) an order (of another judge of that court) deferring a ruling on the plaintiffs’ motion to amend their complaint. Because numerous, genuine issues of material fact yet remain, the final summary judgment must be reversed.

The plaintiffs (Morris and Jean Fox) had certain business dealings with the defendants (Phil and Therese Perry) and Harold and Lois Pomerantz mainly involving the Foxes’ co-signing a $500,000.00 promissory note as an accommodation to the Perrys and the Pomerantzes, and the sale by the Foxes to the Perrys and Pomerantzes of some real property in Jacksonville, Florida. These dealings created an indebtedness of the Perrys and the Pomerantzes to the Foxes and resulted in a “May ’76 Agreement,” wherein three commitments were undertaken: (1) The deed to the Jacksonville property, held by the Perrys and the Pom-erantzes, was to be delivered to an attorney (Eugene E. Stearnes) to be held in escrow for six months during which time the Per-rys and Pomerantzes were to sell the property. If the property was not sold within the six-month period, the deed would then be turned over to the Foxes. (2) The Lo-Te Development Corporation (of which the Perrys and Pomerantzes were the sole stockholders) was to execute a promissory note with sufficient interest to protect the Foxes from all expenses, fees, costs, interest or the principal payments made in connection with the $500,000 note. (3) The Lo-Te Development Corporation was to execute to the Foxes an assignment of the proceeds from two lawsuits that the corporation then had pending in Fort Lauderdale, Florida.

Thereafter, in September 1978, the Foxes brought suit against the Perrys, not on the “May ’76 Agreement,” but on the basis of the debt arising out of the promissory note. The defendants were the first to introduce the “May ’76 Agreement” into the action (through their answer and counterclaim), alleging that their performance thereunder was a complete defense to the Foxes’ claim. Central to the position of the Foxes, however, is their contention that the Perrys and Pomerantzes failed to perform any of the three commitments in the “May ’76 Agreement,” thereby precluding the defendants from relying on the agreement as a defense.

Procedurally, this case has made somewhat of a “milk train” journey through the corridors of the Dade County Circuit Court, has undergone the judicial consideration of at least five circuit judges, including the chief judge of that court acting in his administrative capacity, and has culminated in the two orders here appealed. Because of our ultimate disposition of this appeal, we do not deem it necessary to discuss the various allegations of certain problems that have been drawn to our attention with regard to the multijudge treatment of this case.

Legally, we have been presented by the parties with contrary conclusions of law, based upon often divergent and overlapping renditions of fact. What has taken the parties nearly half of their respective briefs to discuss will not be repeated here. Some discussion is, however, necessary.

The basic premise of the Foxes’ complaint is their claim of a personal indebtedness of the defendants growing out of a half million dollar promissory noté. Defensively, the Perrys take the position that the “May ’76 Agreement” precludes this claim because the matter of the promissory note is controlled by the provisions of the agreement, which the defendants have fully performed and, performance aside, because the agreement provides that the plaintiffs would look exclusively to the Lo-Te Development Corporation for any indebtedness arising out of the note; i. e., that the defendants (and the Pomerantzes) would not be personally liable. Also, there is the further, correlative contention that the Lo-Te Development Corporation was, therefore, an indispensable party to this action and, accordingly, should have been joined as a defendant. The plaintiffs reply that because their lawsuit was based on the promissory note and not on the “May ’76 Agreement,” the Lo-Te Development Corporation was not an indispensable party. Furthermore, the defendants argue that their performance under the agreement has been acknowledged by a “release” of Mr. Fox (in what was known as the “Colt Lanes Memorandum”) where, in his own handwriting, Mr. Fox states: “All verbal agreements, if any, or agreement of May 1976 are [null] and void and the only agreement between P. and Lo-Te and M. F. is this agreement.” The Foxes argue that the reference in the handwritten memorandum to “. the only agreement between . . , ” the parties refers to the memorandum itself and not the “May ’76 Agreement.” These, and various other allegations and counter-allegations, comprise the tenor of the arguments presented by the parties. In this light, the Foxes submit that the primary issue for this court’s determination is whether the “May ’76 Agreement” is a valid defense to an action upon the promissory note. They argue that genuine issues of material fact exist concerning whether the defendants performed their promises and fulfilled their obligations under the agreement, or whether the defendant breached, abandoned or waived the agreement and are estopped from reliance thereon. We agree that genuine issues of material fact have yet to be decided and, accordingly, we reverse. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); and Massey v. Seaboard Air Line Railroad Company, 132 So.2d 469 (Fla. 2d DCA 1961).

The performances of the Foxes, the Per-rys and the Pomerantzes, pursuant to the agreement, are hardly exemplary. The claim of the defendants that the record of their performance is superior to that of the plaintiffs’, even if true, is a boast of little significance and, in essence, merely begs the question. None of the parties displayed a concerted or deliberate effort to execute the agreement or to encourage any of the other parties to exert an effort. We note, in passing, that certain performances of the defendants under the agreement, specifically the assignment of the two pending Fort Lauderdale lawsuits and the delivery of the promissory note by the Lo-Te Development Corporation to the Foxes, occurred subsequent to the filing of the present action. Also, the deed to the Jacksonville property was not turned over to the Foxes until an inordinately late date and, even assuming that this was a performance within the agreement’s provisions, a question of fact remains concerning whether new consideration (the fact that the Foxes took over a new and substantial bank loan debt) was, in fact, the operative cause for turning over the deed. Accordingly, under these circumstances, genuine issues of material fact exist and the defendants may not rely on the “May ’76 Agreement” as a complete defense in order to sustain a final summary judgment in their favor. It is clear that the defendants have not met their burden, as the moving party for a summary judgment, of proving the non-existence of justiciable issues of fact. See Holl v. Talcott, supra; and Visingardi v. Tirone, 193 So.2d 601 (Fla. 1966).

We hold that the present record does not properly evidence a showing of full performance by the defendants under the “May ’76 Agreement.” Such failure on the defendants’ part, even in the light of the poor example of the plaintiffs, is fatal to an affirmance of the summary final judgment. In cases where there is even the slightest doubt concerning the existence of a genuine issue of material fact, the courts have resolved the doubt in favor of the party moved against. See Avampato v. Markus, 245 So.2d 676 (Fla. 4th DCA 1971); and Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1975). Certainly, this case leaves no “doubt” that genuine factual issues remain.

Finally, with regard to the defendants’ claim that the “May ’76 Agreement” precludes the plaintiffs’ action on the prior promissory note, it is well to point out that:

“A plea of accord and satisfaction, to be effective, must be supported by a new contract, expressed or implied, between the same parties to the original agreement, and the last contract must be executed to have the effect of satisfaction.” Kline v. Eugene Berninghaus Co., 102 Fla. 362, 135 So. 837, 838 (1931). .

See, also, Rosenfeld v. Glickstein, 159 So.2d 670 (Fla. 1st DCA 1964); and Brewer v. Northgate of Orlando, Inc., 143 So.2d 358 (Fla. 2d DCA 1962).

Inasmuch as we must reverse the granting of the summary final judgment, the second question presented on this appeal regarding the failure of the trial court to rule on the plaintiffs’ motion to amend their complaint will require very little discussion. Because the amended complaint (sought to be pled) differs materially from the original complaint only to the extent that it assails the “May ’76 Agreement” and because there is presented a genuine issue of material fact concerning that agreement, we find that the rules of procedure permitting the liberal amendment of pleadings compel us to direct the trial court to grant the plaintiffs’ motion. See Fla.R.Civ.P. 1.190.

The trial court erred (1) in granting the motion of the defendants for a summary judgment and in entering the final judgment thereon where genuine issues of material fact remain, and (2) in failing to rule favorably on the plaintiffs’ motion to amend the complaint. Accordingly, we reverse and remand this cause for a trial on the merits.

Reversed and remanded.

      . Mrs. Pomerantz is the daughter of the Foxes. The Pomerantzes became parties to this action when they were made third-party defendants through a third-party action brought by the Perrys.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Richard E. KIIBLER, as Administrator of the Estate of Carol Sue Brown Kiibler, Deceased, Appellee.
    Nos. 79-1083, 79-1323.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Rehearing Denied May 21, 1980.
    Greene & Cooper and Sharon L. Wolfe, Corlett, Merritt, Killian & Sikes, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, ■ Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Posner v. Posner, 315 So.2d 175 (Fla.1975); All-Star Ins. Corp. v. Scandia, Inc., 353 So.2d 171 (Fla.3d DCA 1978); In re Estate of Lunga, 322 So.2d 560 (Fla.2d DCA 1975).


text:
    Ernesto MORERA, a minor, by and through his parents and next friends, Paul Morera and Ernesto Morera, Appellants, v. CITY OF MIAMI, a Municipal Corporation, Appellee.
    No. 79-1377.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Rehearing Denied May 21, 1980.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellants.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.3d DCA 1977).