author:
HUBBART, Chief Judge.
      HENDRY, Judge PER CURIAM.

text:
    Dr. John R. RAMEY and Manson, Kuckku and Middkiff, P. A., individually, and d/b/a Manson Clinic, Appellants, v. John FASSOULAS and Edith Fassoulas, individually and as husband and wife, Appellees.
    No. 79-1573.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    On Rehearing June 8, 1982.
    Wicker, Smith, Blomqvist,' Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Hawkesworth & Schmick, Miami, for appellees.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HUBBART, Chief Judge.

The central issue presented for review by this appeal is whether the parents of a child, who is born as a result of a negligent vasectomy, are entitled in a “wrongful birth” negligence suit to past and future damages for the care and upbringing expenses of the subject child as against the tortfeasor physician who negligently performed the vasectomy. Wé hold that the parents are not entitled to damages for such past and future rearing expenses — unless the child is born with substantial physical or mental defects, in which event, the parents are entitled to recover the special medical and educational expenses, apart from the normal rearing costs, associated with raising such a child to majority, age 18. We, accordingly, reverse the final judgment entered below and remand for a new trial for failure of the trial court to strike, at least in part, the claim for past and future rearing expenses as to the children born in the instant case.

i

The facts pertinent to the above issue are as follows. On January 18, 1974, the plaintiff John Fassoulas went to the defendant Dr. John R. Ramey, a physician, who was at the time practicing medicine with the defendants Manson, Kuckku, and Midkiff, P. A. for a vasectomy. The plaintiff John Fassoulas and his wife, the plaintiff Edith Fassoulas, had two children at the time, both of whom had been born with congenital defects. The couple had decided, in view of their prior two defective children, not to have any more children and to obtain a vasectomy for Mr. Fassoulas.

The defendant Dr. Ramey performed, as requested, a vasectomy on the plaintiff John Fassoulas. Thereafter, in November, 1974, the plaintiff Edith Fassoulas became pregnant and later gave birth to a daughter, Maria, who was born with many congenital deformities, including an abnormal shaping of the skull, a short neck, redundant skin, and malformations of the hands, with the right hand missing several digits. In addition, Maria was born mentally retarded, is suffering from heart problems and hypertension, and will never be a “normal” child. The plaintiff, Edith Fassoulas, also became pregnant a second time in September 1976 and gave birth to a son, Roussi, who was born with a slight physical deformity. This deformity, however, was corrected almost immediately upon birth and he is now a normal, healthy child. There is no dispute for purposes of this appeal that the defendant Dr. Ramey negligently performed the subject vasectomy and that the birth of the above two children resulted from such negligence.

The plaintiffs, Mr. and Mrs. Fassoulas, brought suit in the Dade County Circuit Court against Dr. Ramey and his professional association based on medical malpractice for the two “wrongful births.” The plaintiffs specifically pled various items of consequential damages in their complaint, including a claim for past and future expenses for the care and upbringing of the above-stated two children. The defendants herein moved pretrial to strike the rearing expense claim in the complaint. The trial court at first granted the motion, but later, upon reading additional authority, reversed itself and reinstated the above damage claim. At trial, the court instructed the jury that it could consider, as part of the consequential damages allegedly suffered by the plaintiffs herein, any past and future rearing expenses as to both children.

The jury subsequently returned a special verdict in favor of both plaintiffs, finding the defendants 100 percent negligent with reference to the birth of Maria and 50 percent negligent with reference to the birth of Roussi. The jury assessed damages as to the birth of Maria in the amount of $250,-000 for both plaintiffs. As to the birth of the normal child Roussi, the jury awarded the plaintiffs $100,000. The trial court subsequently entered a final judgment in the amount of $250,000 for the plaintiffs as to the birth of the child Maria and $50,000 for the plaintiffs as to the birth of the child Roussi, the latter having been reduced by the plaintiffs’ 50 percent comparative negligence. The defendants have prosecuted an appeal from that judgment.

II

The law is clear that the parents of a child have a cause of action sounding in negligence against a physician for performing a negligent vasectomy, sterilization, or abortion [or for otherwise performing negligent medical services] which results in the birth of an unwanted child. Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981); Public Health Trust v. Brown, 388 So.2d 1084 (Fla. 3d DCA 1980), pet. for review denied, 399 So.2d 1140 (Fla.1981); Jackson v. Anderson, 230 So.2d 503 (Fla. 2d DCA 1970). Although the recoverable items of damages tend to be much the same as any other negligence malpractice action, most courts, for good reason, have been reluctant to allow recovery for the cost of raising a child to his or her majority; see authorities collected at Public Health Trust v. Brown, 388 So.2d at 1085; in particular, this court has recently held that such rearing expenses are not recoverable where the child born is otherwise normal and healthy. Public Health Trust v. Brown, supra. Central to this ruling is the court’s conclusion that the parents here have not been damaged by being required to raise their own normal, healthy child.

A

First, it is thought that the monetary value of a normal child’s services, companionship and support to the parents more than offsets, as a matter of law, whatever rearing expenses may be incurred by the parents in raising such a child. This view is in full accord with the settled law in wrongful death cases that the surviving parents of a minor child, who is negligently killed by a third party, are entitled as damages to the intangible value, which is considerable, of the child’s services and support; §§ 768.-18(1), 768.21, Fla.Stat. (1979); see e.g., Winner v. Sharp, 43 So.2d 634, 636 (Fla.1950); Florida East Coast Railroad v. Hayes, 65 Fla. 1, 60 So. 792, 793 (1913); 17 Fla.Jur.2d “Death” § 43 (1980); moreover, no offset has been recognized here for child rearing expenses. See Fla.Std.Jury Instr. (Civil) 6.5, 6.6. Indeed, the courts have consistently sustained high jury awards for the loss of a child’s services and support to the parents in such wrongful death cases. See Prosser on Torts 905-10 (4th ed. 1971).

Should a normal child born of a physician’s negligence, as here, be killed negligently by a third party in an automobile accident, the parents would be entitled as damages to the value of the child’s services and support with no offset for rearing expenses. It is, therefore, not surprising that most courts, including this court, do not allow for rearing expense damages in “wrongful birth” cases where the child born is otherwise normal and healthy. Such expenses are, in contemplation of law, considered de minimus when compared to the high value of the child’s services and support.

B

Secondly, it is thought that the payment of normal expenses necessary to raise a child to majority is the sole legal obligation of the parents and in performing that duty it cannot be said that the parents have sustained any damages recognizable by law. Indeed, it has been embedded in our law for centuries that the father and now both parents or legal guardians of a child have the sole obligation of providing the necessaries in raising the child, whether the child be wanted or unwanted. Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955); Bezanilla v. Bezanilla, 65 So.2d 754, 756 (Fla.1953); State ex rel. Airston v. Bollinger, 88 Fla. 123, 101 So. 282 (1924); Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967); 25 Fla.Jur.2d “Family Law” § 98 (1981); see also §§ 61.13(1), 744.301(1), 744.361(1), Fla.Stat. (1979). Parents who fail to perform this duty may forfeit all parental rights to the child. See e.g., §§ 39.01(1), (2), (9)(a), (27), 39.401 et seq (1979). The courts have, accordingly, been unwilling to walk away from this established law so as to exempt parents, as urged, of their legal obligation to support their children regardless of whether a physician, as here, has performed a negligent vasectomy [or some other similar negligent medical service] which eventually led to the birth of unwanted children. The child is still the child of the parents, not the physician, and it is the parents’ legal obligation, not the physician’s, to support the child.

C

We are, however, persuaded to make one limited exception to the general bar against rearing expense damages in cases of this nature. Where the child born has substantial mental or physical defects, the tort-feasor physician will be liable in damages for the special medical and educational expenses, as opposed to normal rearing costs, associated with raising such a child to majority, which in Florida is age 18. § 743.07, Fla.Stat. (1979). We are supported in this result by a recent decision of the Fifth District Court of Appeal, Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981) (case nos. 80-1360, 81-117, opinion filed October 28, 1981), as well as the emerging view in the country on this subject. See cases collected in Public Health Trust v. Brown, 388 So.2d at 1085 n.3.

This exception, in our view, is based on the premise that the parents in cases of this nature have been damaged, in part, by the rearing of a child born with substantial mental or physical defects. True, such a child is still the child of the parents, not the physician, and ordinarily should be supported by the parents. Still, the special medical and educational expenses, beyond normal rearing costs, associated with raising such a child are often staggering, creating great financial drain upon the parents. Moreover, the monetary value of the services, companionship and support of such a child is immeasurably less than that of a normal, healthy child as is recognized by the wrongful death cases; see e.g., Davis v. State, 70 Misc.2d 112, 332 N.Y.S.2d 569 (N.Y.Ct.Cl.1972); Gaccione v. State, 173 Misc. 367, 18 N.Y.S.2d 161 (N.Y.Ct.Cl.1940); indeed, the financial and emotional drain associated with raising such a child is often overwhelming to the affected parents.

Under the circumstances, then, it is thought not altogether unfair to require the tortfeasor physician to bear the special medical and educational expenses of raising such a child to majority, over and above normal rearing costs. The parents, on the other hand, are still required by the exception to bear the normal rearing expenses of clothing, feeding and housing such a child, thereby still imposing upon them a legal duty to support their child by providing necessaries in accord with our settled law.

D

The prevailing law in this area, as stated above, reflects some of the most fundamental values of our culture which has long honored the institution of the family and cherished the inestimable worth of children. We believe deeply as a people that our children represent the destiny of the country, our best hope for the future, and a treasure beyond compare; we also cling to the belief that parents should support their children, both financially and emotionally, whether the child be wanted or unwanted. The courts have, therefore, been unwilling to look upon child-rearing as a compensable item of damage in cases of this nature, save only in the exceptional case where the child born has substantial mental or physical defects and then only to the extent of the extraordinary medical and educational expenses associated with raising such a child to majority. We reaffirm the established law applicable here today, together with our traditional societal values, in the confident belief that our legal institutions are alive and well and equal to the task of dispensing justice with fairness and common sense.

Ill

Turning to the instant case, it is clear that the claim for the rearing expenses, both past and future, for the normal child, Roussi, were not recoverable in this action and should have been stricken on proper motion by the trial court. It is equally clear that the claim for the rearing expenses, both past and future, for the substantially mentally and physically defective child, Maria, should have been stricken, but only in part, by the trial court. As to that child, the plaintiffs were not entitled to the normal expenses in raising this child, but were entitled to the special [past and future] medical and educational expenses, over and above normal rearing costs, associated with raising the child to her majority, age 18. The judgment under review is, accordingly, reversed and the cause is remanded to the trial court with directions to order a new trial in accord with the law announced in this decision.

Reversed and remanded.

HENDRY, Judge

(dissenting):

The majority decision prohibits the parents from recovering the reasonable forseeable costs of rearing both a normal and an abnormal child from a physician who performed an ineffective vasectomy. I respectfully dissent. I am not persuaded that public policy considerations should be used to deny recovery to parents of an unplanned, healthy child (much less an abnormal child) of all damages proximately caused by a negligently performed sterilization operation. In this regard, see Judge Daniel Pearson’s dissent in Public Health Trust v. Brown, 388 So.2d 1084 (Fla. 3d DCA 1980), pet. for rev. den., 399 So.2d 1140 (Fla.1981). Where the very purpose of the physician’s actions is to prevent conception or birth, elementary justice requires that he be held legally responsible for the consequences which have in fact occurred.

The court below instructed the jury that damages could be awarded for pain and suffering, lost wages, and medical expenses. Although the majority decision does not address the propriety of this instruction, I find this a suitable measure of damages recognized in several jurisdictions.

The trial court also allowed the jury to consider the costs necessary to raise the two children to the age of 21. While I do not entirely agree with this standard of recovery because I think the children’s situations merit disparate treatment, it is far more just than this court’s absolute denial of recovery for Roussi and limited recovery for Maria. A growing number of jurisdictions are allowing parents of healthy, normal children to recover rearing costs in this identical situation.

Judicially created policy considerations should not prohibit the parents from recovering from the negligent physician damages properly pled and proved for either child. Additionally, limiting damages for the special medical and educational expenses of Maria to age 18 is entirely inappropriate in light of the harsh reality that this child will require special care, attention and financial support for her entire life — far beyond her eighteenth birthday. Instructive in this regard are the comments of the court in Sherlock v. Stillwater Clinic, Minn., 260 N.W.2d 169 (1977), which awarded the parents the costs of raising their healthy, normal child born of a negligently performed sterilization:

In the case of a normal, healthy child, we would anticipate that these expenses [rearing costs] could not ordinarily be projected beyond the age of his majority, for it is at that age that the parental duty to support ceases.

260 N.W.2d 176. In a footnote, however, the court qualified this statement where the child is born with abnormalities:

Should the unplanned child be born with congenital deformities, the parental support obligation could, of course, extend beyond the date that the child reaches his majority.

260 N.W.2d 176, fn. 11.

Ideally, then, in the present situation the court should be instructed to assess costs of raising the normal, healthy child to majority (age 18 in this state), assess the reasonable costs of supporting the abnormal child for its natural life span, and allow an offset for the value of the children’s aid, comfort and society.

Having stated what I consider to be the ideal solution, however, based upon the record before us, I would affirm the verdict and judgment below. In any event, remand for a new trial should be limited solely to the issue of damages since the finding of liability has not been challenged on appeal.

ON REHEARING

PER CURIAM.

Plaintiffs have filed a motion for rehearing and clarification which we grant in part; the new trial, which we order upon remand in this cause, shall be for damages only. The basis for our reversal herein of the judgment appealed from goes solely to the damages issue tried below, not the liability issue, which was, in effect, conceded by the defendants for appellate purposes; in fairness, then, the new trial ordered herein should be confined to damages only.

We recognize that the defendants herein have a remaining point on appeal which, it is claimed, warrants a new trial on all issues. We neglected to rule on that point in our initial decision, but do so now by rejecting it as presenting no reversible error. As such, there was no error committed below with respect to the liability issue and, therefore, no need for a retrial on that issue.

In all other respects, the motion for rehearing and clarification is denied. The judgment appealed from is, accordingly, reversed and the cause is remanded to the trial court with directions to order a new trial as to damages only.

      . In all fairness to the able trial judge, it should be noted that the Public Health Trust decision was rendered subsequent to the trial in this cause and was not available to the judge when he was called upon to rule on the issues confronting him in this case. Also, the Moores decision, cited above, was rendered subsequent to the trial herein and was similarly unavailable to the trial judge below.

      . See Custodia v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Cox v. Stretton, 77 Misc.2d 155, 352 N.Y.S.2d 834 (Sup.Ct.1974); Rivera v. State, 94 Misc.2d 157, 404 N.Y.S.2d 950 (Ct.Cl.1978); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976); Garwood v. Locke, 552 S.W.2d 892 (Tex.Civ.App.1977).

      . See, e.g., Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976) (recovery for all damages under ordinary tort principles reduced by benefits conferred for healthy child born following negligently performed abortion); Custodia v. Bauer, supra, (recovery for rearing costs for healthy child born of a failed sterilization operation); Cox v. Stretton, supra, (same); Rivera v. State, supra (same); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976) (same); Anonymous v. Hospital, 33 Conn.Sup. 125, 126, 366 A.2d 204 (1976) (recovery for expenses in rearing of healthy, normal child born of a negligently performed sterilization offset by value of the child’s aid, comfort and society); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971) (same); Betancourt v. Gaylor, 136 N.J.Super. 69, 344 A.2d 336 (1975) (same).

      .Dissolution of marriage cases also recognize an exception to the general rule requiring child support only during the child’s minority where the child is, as a result of physical or mental deficiencies, unable to support himself. See Perla v. Perla, 58 So.2d 689 (Fla.1952); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Krogen v. Krogen, 320 So.2d 483 (Fla. 3d DCA 1975); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963).

      . .This offset is in accordance with Section 920, Restatement (Second) of Torts (1979), which provides for a reduction of damages correspondent to any benefit which a tortfeasor has bestowed upon his victim.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J. O. ZIPPERER, Jr., J. O. Zipperer, III, J. O. Zipperer, Jr., as personal representative of the Estate of Madge B. Zipperer and the John Orin Zipperer Trust, as partners in Zipperer Farms, a Florida partnership, and Jennie Lee Zipperer d/b/a Zipperer Beefmasters, Petitioners, v. GERALD DARROH, INC., a Florida corporation, and Roland Skipper, Respondents.
    No. 82-564.
    District Court of Appeal of Florida, Second District.
    March 26, 1982.
    Hywel Leonard of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for petitioners.
   PER CURIAM.

Certiorari denied without prejudice to raising the issues presented herein on appeal from final judgment.

SCHEB, C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Jose M. AGUIAR and Lilia Aguiar, his wife, Appellants, v. COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION, etc., et al., Appellees.
    No. 81-2340.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied June 9, 1982.
    Stephen R. Schneider and Martin Levin-son, Miami, for appellants.
    Pedro P. Echarte, Greene & Cooper and Sharon L. Wolfe, Clark, Dick & Lancaster and John C. Dick, South Miami, for appel-lees.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   PER CURIAM.

Affirmed. Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); Farish v. Lums, Inc., 267 So.2d 325 (Fla.1972); Klosenski v. Flaherty, 116 So.2d 767 (Fla.1959); Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); Winky’s, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1969).


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert A. GLASSMAN, Appellee.
    No. 81-1254.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied June 9, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
   LETTS, Chief Judge.

The State appeals from an order granting the defendant’s Motion to Dismiss.

The defendant was indicted on several counts of selling “harmful” material depicting sexual conduct, to a juvenile contrary to Section 847.012(1), (2), Florida Statutes (1979). He filed a motion to dismiss stating it was actually his employee who sold the material and he did not authorize her to do so. The State filed a traverse denying this allegation.

Defendant then filed a second motion to dismiss asserting that the only theory upon which he could be held liable for the offense was if his employee was acting as his agent at the time of the sale. Defendant then asserted that since the employee had been found not guilty in her criminal trial on the same charge, it was impossible for him to be “derivatively liable.” The State filed an answer setting forth several reasons why this was not true, but the court granted defendant’s motion stating that the acquittal of the employee necessitated dismissal of the charge against defendant. The State appeals. Defendant has not filed a brief.

The State’s contention is meritorious. It is undisputed that defendant was not in the store at the time his employee allegedly sold the material to the juvenile. The disputed fact was whether he “authorized, instructed, induced or otherwise caused [his employee]” to sell the material to a juvenile. Accordingly the defendant could be convicted as an aider and abettor because he aided, abetted, counseled, hired, or otherwise procured his employee to commit the offense of selling to the juvenile. An aider and abettor’s conviction is valid regardless of the disposition of the principal’s separate trial. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980); Blackburn v. State, 314 So.2d 634 (Fla. 4th DCA 1975), cert. denied 334 So.2d 603 (Fla.1976), cert. denied 429 U.S. 864, 97 S.Ct. 170,50 L.Ed.2d 142 (1976). Potts v. State, 403 So.2d 443 (Fla. 2d DCA 1981).

This cause is reversed and remanded.

HERSEY and GLICKSTEIN, JJ., concur,


text:
    Napoleon ARANGO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1566.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied June 18, 1982.
    Pollack, Komorowski & Headley and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Defendant Napoleon Arango was conviet-ed for the crime of second degree murder, for which he was sentenced to thirty years imprisonment, and for the crime of possession of a firearm while engaged in a criminal offense, for which he was sentenced to fifteen years imprisonment. He has appealed both convictions.

With regard to the conviction for second degree murder, we hold that no error has been demonstrated in any of the points raised by the defendant.

Neither is there error demonstrated with regard to the conviction for possession of a firearm while engaged in a criminal offense. However it was improper to sentence the defendant for the firearm possession charge which, on the facts of this case, is a lesser-included offense of second degree murder. State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

The conviction and sentence for second degree murder and the conviction for possession of a firearm while engaged in a criminal offense are affirmed, but the sentence for possession of a firearm while engaged in a criminal offense is hereby reversed and the cause is remanded with instructions to vacate the sentence for firearm possession.


author: FERGUSON, Judge.

text:
    Juan MARISTANY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2500.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied June 8, 1982.
    Pollack, Komorowski & Headley and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Juan Maristany appeals from a final order of the trial court finding him in criminal contempt and sentencing him to five months and twenty-five days incarceration. We reverse.

Appellant had been convicted on twelve counts of grand theft after a guilty plea. He was sentenced to a year in jail to be followed by a period of probation. While serving the sentence he was subpoenaed to give testimony regarding those same cases — specifically to identify other persons involved. Maristany refused to answer. At a hearing on an order to show cause he asserted not only a fear for his family’s safety, but also his Fifth Amendment privilege against self-incrimination on grounds that his responses to the state’s questions could expose him to federal prosecution.

As evident from the record, the trial court considered and rejected Maristany’s assertion of his right against self-inerimination as justification for his refusal to give the information, relying on Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

The trial court erred, however, in applying the rule of Murphy, supra, to this case because Maristany had not been offered immunity by the state. See, e.g., King v. State, 353 So.2d 180 (Fla. 3d DCA 1977). Accord, Libertucci v. State, 395 So.2d 1223, 1225, n.1 (Fla. 3d DCA 1981). Accordingly, the judgment of criminal contempt and the resultant sentence are reversed.

REVERSED.


author: DANIEL S. PEARSON, Judge.

text:
    Richard COURSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-893.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied June 18, 1982.

      Joel Hirschhorn and Harry M. Solomon, Miami, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Courson was charged in Count One with attempted first-degree murder and in Count Two with the display of a firearm during the commission of attempted first-degree murder. The charges arose when the police, responding to a call about shots being fired, were fired upon and, in the case of one officer, shot by the defendant. Courson was convicted on Count One of the “lesser-included offense” of aggravated assault with a firearm and acquitted on Count Two. Courson raises three points on appeal.

First, he contends that the prosecutor’s remark, “may the record reflect the defendant was writing with his left hand in court” (made during the State’s direct examination of a police officer concerning how the defendant was holding the gun when first observed), was a comment on the defendant’s failure to testify. Courson argues that he was entitled to his requested mistrial, not merely the benign instruction to the jury to disregard the remark “concerning [the prosecutor’s] observations of something the defendant was doing.”

We agree that it is inappropriate for a prosecutor to attempt to transform his own, often unshared, courtroom observation into an evidentiary fact. See generally An-not., Prejudicial Effect of Prosecuting Attorney’s Misconduct in Physically Exhibiting to Jury Objects or Items Not Introduced As Evidence, 46 A.L.R.2d 1423 (1956). It is clear, however, that the prosecutor could have sought by appropriate means to prove the undisputed issue of the defendant’s left-handedness (for example, by requesting the court to have the defendant demonstrate this physical characteristic in the jury’s presence) without implicating, much less offending, any right of the defendant not to incriminate himself. See Lusk v. State, 367 So.2d 1088 (Fla.3d DCA 1979) (prosecutor’s request in jury’s presence that the defendant speak so that the witness could identify defendant’s voice approved against self-incrimination claim); Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975) (same, including prosecutor’s comment that a defendant refused to speak). See also United States v. Ryan, 478 F.2d 1008 (5th Cir. 1973); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1968); Schoenbrun v. United States, 403 F.2d 56 (5th Cir. 1968); Pearson v. United States, 389 F.2d 684 (5th Cir. 1968). While a prosecutor’s comment describing a nontestifying defendant as “sitting quietly” is fairly susceptible to being construed as a comment on such a defendant’s failure to testify, see Hall v. State, 364 So.2d 866 (Fla. 1st DCA 1978), that is hardly authority, as the defendant suggests, for the proposition that calling a defendant left-handed — or, for that matter, tall, stout, or green-eyed — is susceptible of the same construction.

Next, Courson argues that because Count One of the information charging him with attempted first-degree murder contained no specific allegation that the alleged victim was placed in fear, aggravated assault with a deadly weapon was not a lesser-included offense of attempted first-degree murder, and it was improper to instruct the jury thereon. Whether or not the instruction was proper under the circumstances of this case, compare Cherry v. State, 389 So.2d 1201 (Fla. 1st DCA 1980), with Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978), the error, if any, in the giving of the instruction was not preserved for our review by appropriate objection below.

At the beginning of the charge conference, the defendant’s counsel objected to the giving of any lesser-included offense instructions. The prosecutor then called to the court’s attention (“so we do not have a problem here”) that the defense objection to lesser-included offense instructions was all-encompassing and non-specific. Despite being thus forewarned, the defense said nothing. Indeed, defense counsel remained silent when the prosecutor, requesting the lesser-included offense of aggravated battery, noted that because “there’s some feeling that it’s not a lesser included, because I did not sufficiently allege a battery,” he wanted the matter fully aired and discussed by the defendant. Only after the prosecutor, in uninterrupted succession, requested instructions on the lesser offenses of attempted second-degree murder, attempted manslaughter, aggravated battery, and aggravated assault was defense counsel’s silence broken with the words, “We object.” The defense’s only other, and last, words before the ease went to the jury were, “I would renew my motion on the giving of ail lesser included offenses.”

It was not until after the jury found the defendant guilty of aggravated assault with a firearm that defense counsel stated that there was “absolutely no testimony in the record one way or the other to show that the defendant committed an aggravated assault.” And it was not until a still later motion in arrest of judgment that defense counsel first registered any complaint that neither the allegata nor probata of the attempted first-degree murder charge permitted aggravated assault to be considered as a Category Four lesser-included offense under Brown v. State, 206 So.2d 377 (Fla.1968).

Therefore, it is true, as the prosecutor forewarned, that the defense has “a problem here.” It is quite clear that to preserve for appellate review an objection to the giving or the failure to give an instruction, a defendant must state distinctly the matter to which he objects and the grounds of his objection. Fla.R.Crim.P. 3.390. See Williams v. State, 399 So.2d 999 (Fla.3d DCA 1981); Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980); York v. State, 232 So.2d 767 (Fla. 4th DCA 1969). An objection to the giving of all lesser-included offense instructions is not sufficiently “distinctive” where, as here, at least some of these included offense instructions are proper. Thus, even if, arguendo, it was error to instruct the jury on the offense of aggravated assault with a firearm, the error is not fundamental, Wilson v. State, supra, where, as here, aggravated assault with a firearm could have been, given proper allegations, an included offense of the first-degree murder charge, and there was sufficient evidence upon which to convict on such included offense. Compare Johnson v. State, 226 So.2d 884 (Fla.2d DCA 1969). While Courson may have wanted the jury to decide the case by either convicting him of the charge contained in the information or nothing at all, that option is not his. State v. Washington, 268 So.2d 901 (Fla.1972). It follows, of course, that since no specific objection was made, no grounds were stated. Accordingly, since the trial court was not presented with an opportunity to rule, the defendant cannot be heard to complain on appeal. See Blow v. State, 386 So.2d 872 (Fla. 1st DCA 1980) (defendant’s duty to object and state grounds requires that defendant, if claim is that lesser offense is not Category Four crime, so inform trial court); Wilson v. State, supra.

Lastly, Courson insists that his conviction for aggravated assault with a firearm is legally inconsistent with the jury’s verdict acquitting him of the offense of displaying a weapon during the commission of attempted murder and must be vacated. To the extent that the verdicts are inconsistent, they are not legally so, and the conviction may stand. McCloud v. State, 335 So.2d 257 (Fla.1976). See Damon v. State, 397 So.2d 1224, 1228 n. 10 (Fla.3d DCA 1981). Compare Mahaun v. State, 377 So .2d 1158 (Fla.1979).

Affirmed.

      . Indeed, in defense of his comment the prosecutor stated that he could have requested the defendant to write or do some other activity requiring the use of hands to show the defendant’s left-handedness. The defendant makes no claim that the prosecutor inaccurately described his observations.

      . Count One reads, in pertinent part, that the defendant "with felonious intent and from a premeditated design to effect the death of a human being, attempted to kill [the named victim] .. . and in such attempt did shoot him with a shotgun. ...”


text:
    Joel S. RATNER, d/b/a the Stereo Corner, Appellant, v. CENTRAL NATIONAL BANK OF MIAMI, Appellee.
    No. 80-2475.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied June 16, 1982.

      Hall & Hauser and Richard F. O’Brien, III, Gail V. Ferrington and Andrew C. Hall, Miami, for appellant.
    William A. Ingraham and Bertram A. Sapurstein, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Joel S. Ratner appeals from a summary judgment entered in favor of appellee, Central National Bank of Miami, plaintiffs below. Ratner contends that the trial court erred in granting summary judgment and finding Ratner personally liable for $32,-756.56 in unauthorized sales drafts which Central National Bank had provisionally credited to the account of The Stereo Corner, Inc., pursuant to a merchant’s Master-charge agreement. The question on appeal is who should bear the loss for forged sales drafts — the bank, the corporation, or the promoter.

The facts are briefly these. On November 3, 1978, Central National Bank of Miami entered into a merchant’s Mastercharge agreement with The Stereo Corner, Inc. The agreement was signed, The Stereo Corner, Inc., by Joel S. Ratner. Under the terms of the agreement the merchant warranted each sales draft and agreed to be liable for certain improper sales drafts including those executed or accepted fraudulently. The Stereo Corner, Inc. was not incorporated until July 10, 1979, eight months after the contract was signed. From April 21, 1979 to October 1, 1979, there was a series of deposits in Stereo Corner’s account with Central National Bank and a corresponding series of charge-backs against the account by the bank pursuant to Section 674.212, Florida Statutes (1979). Central exercised its right of charge-back when it was unable to collect from the Mastercharge Center of Southeast First National Bank on the sales drafts forged by Stereo Corner’s employee. When Central was unable to recoup its losses by charge-back to Stereo Corner’s account, Stereo Corner having become insolvent, Central sued Ratner claiming Ratner was individually liable on the contract.

On appeal Ratner contends that questions of fact and law remain as to the following issues precluding entry of summary judgment: (a) whether Central intended to contract with the corporate entity and not hold Ratner individually liable, (b) whether Central Bank breached its statutory duty of ordinary care and is thereby estopped to assert its claim, and (c) whether Central satisfied the conditions of Section 674.212, Florida Statutes (1979), entitling it to a right of charge-back against Stereo Corner’s account. We have determined the other issues raised by Ratner to be without merit.

We find no merit in Ratner’s contention that there are material questions of fact and law as to whether he can be held personally liable for the corporate debt pursuant to Section 607.397, Florida Statutes (1979). In an affidavit in opposition to the motion for summary judgment, Ratner states that he acted as a promoter for The Stereo Corner, Inc. Ratner contends, however, that he is not liable because his acts as promoter were subsequently ratified by Stereo Corner on July 25, 1979 and, in addition, that The Stereo Corner was a de facto corporation.

We do not determine whether the Corporation Act of 1975, Chapter 607, Florida Statutes (1975), abrogated the doctrine of de facto corporation because there can be no de facto corporation where the filing of papers was not even attempted until eight months after the entity held itself out to be a corporation. See Richmond v. Town of Largo, 155 Fla. 226, 19 So.2d 791 (1944), affirmed, 157 Fla. 837, 26 So.2d 900 (1946). Compare Kansas ex rel. McCain v. Construction Enterprises, Inc., 6 Kan.App.2d 627, 631 P.2d 1240 (Kan.App.1981) (no de facto or de jure corporation exists until articles of incorporation are both filed and recorded) with Cantor v. Sunshine Greenery, Inc., 165 N.J.Super. 411, 398 A.2d 571 (Sup.Ct.N.J.1979) (de facto corporation existed where certificate of incorporation had been mailed to Secretary of State but for unexplained reason was not filed until two days after execution of lease).

The Florida law and general rule is that the promoter of a corporation is liable on his contract although the contract was made on behalf of the corporation to be formed, unless the other party agrees to look to another fund for payment. Bryce v. Bull, 106 Fla. 336, 143 So. 409 (1932); Florida Air Conditioners, Inc. v. Colonial Supply, 390 So.2d 174 (Fla. 5th DCA 1980); Vodopich v. Collier County Developers, Inc., 319 So.2d 43 (Fla. 2d DCA 1975); Bean v. Harris, 212 So.2d 368 (Fla. 3d DCA 1968), cert. denied, 219 So.2d 699 (Fla.1968); Katz v. Kenholtz, 147 So.2d 342 (Fla. 3d DCA 1962). See, e.g., International Design, Inc. v. Rubin's Franchises, Inc., 247 So.2d 778 (Fla. 3d DCA 1971); § 607.397 Fla.Stat. (1979). The later formation of the corporation and subsequent adoption or ratification of the contract by the corporation does not necessarily release a promoter from liability, but may result in joint liability of the promoter and corporation, absent a novation or express release by the other party to the contract. Vodopich v. Collier County Developers, Inc., supra. See also Fletcher 1 Cyclo])edia Corporations § 190 (perm, ed.) (1981 cum. supp.). Moreover, where the promoter does not make it clear that he is acting as a promoter and misrepresents— even if unintentionally — that the corporation is already in existence, thereby causing the other party to enter the contract without knowledge that the entity had not yet been incorporated, the later formation of the corporation and subsequent ratification of the contract, will not by itself, relieve the promoter of liability. See, e.g., Nichols v. Bodenwein, 107 Fla. 25, 146 So. 86 (1932), reh. denied, 107 Fla. 25, 146 So. 659 (1932); Akel v. Dooley, 185 So.2d 491 (Fla. 2d DCA 1966); § 607.397, Fla.Stat. (1979).

In this case, Ratner stated in an affidavit that he was acting as promoter. There is no evidence that Central agreed to look solely to the corporation, and there is no evidence of novation or release of Ratner after the alleged ratification.

We also find no merit to Ratner’s second issue on appeal. In his answer below, Ratner pled as an affirmative defense that Central Bank had by its actions either waived its rights or was estopped to assert its claims. We find no legal basis for Rat-ner’s assertion on appeal that breach by Central of its statutory duty of ordinary care pursuant to Section 674.202, Florida Statutes (1979), estops Central from asserting its claim against Ratner. Nor is Section 674.202, supra, a defense to the bank’s right to charge-back. It is, instead, the basis for affirmative relief by complaint or counterclaim. See Section 674.212(4)(b), Florida Statutes (1979), providing that a bank’s right to charge-back is not affected by failure of bank to exercise ordinary care with respect to any item but any bank so failing remains liable. See, e.g., Wells Fargo Bank v. Hartford National Bank and Trust Co., 484 F.Supp. 817, 822-23 (D.Conn.1980).

We understand Ratner’s third point on appeal to be whether material questions of fact and law remain as to the existence of the right of Central Bank to charge-back to Stereo Corner’s account because the trial court failed to determine whether Central Bank satisfied the pre-conditions of Section 674.212, supra, or whether the parties effectively varied the notice requirement pursuant to Sections 674.103(1) and 674.202, Florida Statutes (1979). We find the issue of whether Central Bank had the right to charge-back the unauthorized sales drafts to Stereo Corner’s account irrelevant to the issue of Central Bank’s right to sue Ratner as individually liable on the contract. See Section 674.212(5), Florida Statutes (1979), providing that “A failure to charge-back or claim refund does not affect other rights of the bank against the customer or any other party.”

Affirmed.

      . Section 607.397 provides:
      All persons who assume to act as a corporation without authority to do so shall be jointly and severely liable for all debts and liabilities incurred or arising as a result thereof.

      . The right of charge-back under Section 674.-212 exists only if (a) “by its midnight deadline or within a longer reasonable time after it [collecting bank] learns the facts it returns the item or sends notification of the facts,” or (b) there has been no final settlement of the item.

      . Section 674.103(1) provides in part:
      The effect of the provisions of this chapter may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care....


author: DELL, Judge.

text:
    Ernest F. KLATT and Violet M. Klatt, his wife, Jacqueline C. Winchester, Bill R. Winchester and Elsie A. Winchester, his wife, and Winchester, Winchester, Zeiher and Schroeder, Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellee. James C. HANEY, Jr., and Vicky Ellen Morningstar, Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellee.
    Nos. 80-1887, 81-120.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied June 8, 1982.

      Robert N. Reynolds of Brigham, Reynolds, Byrne & Moore, P. A., Miami, for appellants.
    Barry R. Davidson of Steel, Hector & Davis, Miami, for appellee.
   DELL, Judge.

Appellants seek reversal of an Order of Taking which allows appellee, Florida Power & Light Company, to condemn a thirty foot strip of their property, located adjacent to Old Boynton Road in Palm Beach County.

Florida Power & Light Company, based upon the increasing use of electrical power by the growing population of Boynton Beach, determined that new transmission lines were necessary to properly service the community. The company, after considering such factors as cost, utility and aesthetics, decided that the best location for these lines would be adjacent to Old Boynton Road. Exercising legislatively delegated powers of eminent domain, Florida Power & Light petitioned the lower court for an easement to that portion of appellants’ property bordering Old Boynton Road to a width of thirty feet. Following hearings on the petition, the court granted the easement. Appellants do not contest appellee’s need to acquire a portion of their property in order to construct the transmission lines. Rather, appellants claim that the easement encompasses more land than Florida Power & Light actually needs to accomplish its purpose. We agree and reverse.

The issue presented to this Court is whether competent substantial evidence supports the decision of the trial court. Hillsborough County v. Sapp, 280 So.2d 443 (Fla.1973). Florida Power & Light admits that to construct its transmission lines a ten foot encroachment onto appellants’ property would suffice. However, the company contends that the extra twenty feet of appellants’ land will accommodate the county’s plan to widen Old Boynton Road.

Our Supreme Court has said that

[A]n acquiring authority will not be permitted to take a greater quantity of property or greater interest or estate therein, than is necessary to serve the particular public use for which the property is being acquired.

Canal Authority v. Miller, 243 So.2d 131 at 133 (Fla.1970). Nevertheless, a condemning authority may properly consider its future needs to establish the extent of a present taking. Carlor Company, Inc. v. City of Miami, 62 So.2d 897 (Fla.1953); Central and Southern Florida Flood Control District v. Wye River Farms, Inc., 297 So.2d 323 (Fla. 4th DCA 1974). However, no land may be condemned without first demonstrating the requisite necessity for such condemnation. Canal Authority v. Miller, supra. Appellee failed to establish this necessity.

Florida Power & Light produced no competent evidence of the county’s intention to widen Old Boynton Road. At the condemnation hearing the company referred to a letter from the county which indicated that the county maintained its option to widen the road if that should prove necessary. However, aside from the fact that this letter was not made part of the record, it certainly is not conclusive, or even indicative, of the county’s actual plans. Presumably, the county would widen any road within its jurisdiction should the need arise. The only other evidence offered on the county’s plans came from testimony of the company’s expert. However he relied purely upon his personal observations of the traffic flow along the road. Obviously, such testimony is not competent proof of the county’s road widening plans.

We hold the evidence presented by Florida Power & Light insufficient to establish the necessity of taking the extra twenty foot corridor of appellants’ property. See, Knappen v. Division of Administration, 352 So.2d 885 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 883 (Fla.1978). However, we do not exclude the possibility of Florida Power & Light attaining an easement to this corridor at such time when it can establish the county’s plans for Old Boynton Road to a greater certainty.

REVERSED.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Ida THOMAS, Appellant, v. Albert M. FOWLER and Freddie Lee Young, Appellees.
    No. 81-853.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    As Modified on Denial of Rehearing June 9, 1982.
    Milton Kelner of Kelner & Kelner, Miami, for appellant.
    Walter N. Colbath, Jr., P. A., West Palm Beach, for appellee Fowler.
   LETTS, Chief Judge.

This case involves the use of verdict forms which, to say the least, were very poorly drafted. We have no difficulty affirming the amount of damages arrived at from the first form, but the forms admittedly are confusing when it comes to who is liable for payment. Nonetheless, we affirm.

Certain things, however, are clear. The jury verdict awarded $2,700 to the appellant, but found her deceased son 60% negligent. The facts and the record clearly support such a result. The situation, on the one hand, boils down to an appellant who is dissatisfied with the amount of the verdict trying understandably to obtain a new trial claiming that the verdict forms were confusing about who was to pay her. On the other hand, all those who are responsible to pay her have not complained about the confusion, also no doubt because of the amount awarded. They have not cross appealed and one of them is ready to pay in full.

If we had to, we might find the above sufficient in and of themselves to affirm this cause, but there is more. The very verdict forms complained of were not only used without objection, but discussion in the record reveals they were specifically agreed to by the appellant. Robbins v. Graham, 404 So.2d 769 (Fla. 4th DCA 1981).

As a consequence we affirm the lower court’s judgment and remand only for the purpose of having the trial court correct its order of April 30, 1981 in which it obviously inadvertently transposed the names of the two appellees.

AFFIRMED.

DOWNEY and BERANEK, JJ., concur.

      . Of course, she also claims the verdict amount is confusing but we do not agree with that.


author: NESBITT, Judge.

text:
    Luis Bernard GUEMES and South Carolina Insurance Company, a South Carolina corporation, authorized to do business in the State of Florida, Appellants, v. BISCAYNE AUTO RENTALS, INC., a Florida corporation, Appellee.
    No. 80-1381.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied June 2, 1982.

      Walton, Lantaff, Schroeder & Carson and Edward J. Schack and George W. Chesrow, Miami, for appellants.
    Papy, Poole, Weissenborn & Papy, Coral Gables, and Sheridan K. Weissenborn, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

On October 24, 1978, the appellee, Biscayne Auto Rentals, Inc., leased an automobile to James Oliver. Oliver permitted Luis Guemes to operate the leased vehicle. Guemes had an accident on November 7, 1978 severely injuring Jose Silveira. Sil-veira commenced an action against Biscayne Auto Rentals, Inc. Biscayne commenced a third-party action against Guemes, the permittee-driver of the leased vehicle and his insurer, South Carolina Insurance Company, seeking: (1) declaratory judgment as to the carrier’s primary responsibility for coverage; and (2) indemnification. After the third-party action matured on the pleadings, both Biscayne and South Carolina filed motions for summary judgment. The trial court denied South Carolina’s motion and granted Biscayne’s motion determining that South Carolina’s policy afforded primary coverage and Biscayne’s policy afforded excess coverage. The question of indemnity became moot when the summary judgment was granted in favor of Biscayne. However, on appeal, Biscayne, in support of its favorable judgment, asserts that even if summary judgment was erroneous with respect to the determination of primary coverage, it was nonetheless properly entered in favor of Biscayne because it was entitled to common law indemnity. Consequently, we must examine both aspects on appeal.

With respect to the coverage question, South Carolina contends that Biscayne did not sufficiently comply with Section 627.7263, Florida Statutes (1977) so as to shift its primary [statutory] responsibility from Biscayne and place it upon South Carolina. Our inquiry begins with the statute, which provides:

Rental and leasing driver’s insurance primary.—
(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736.
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the lessee’s insurance company’s name if the lessor’s insurance is not to be primary.

From an inspection of the lease agreement between Biscayne and Oliver, it is apparent that Biscayne, which admittedly drafted the lease, did not comply with Section 627.7263, supra.

Where the lessee’s insurer is to be primarily responsible, the statute requires said provision to be in bold type. The type used is neither larger nor heavier than that used for the remainder of the lease. The use of a red stamp does not correct this deficiency.

A more substantial defect is the insufficiency of the contents of the notice to effectively inform the lessee that his insurer, if he has one, will be primarily responsible for any claim against the use and operation of the vehicle. The notice states:

NOTICE — Florida Statutes 627.7263 provides that the rental customer’s automobile liability and personal injury insurance shall be primary.

This is an incorrect statement of the law at the time when the automobile was leased. A lessee reading the notice provided by Biscayne would believe that, by statute, his own insurer is responsible. The lessee is not informed that, to the contrary, he is contracting for a responsibility not otherwise required by law. In order to satisfy the requirements of Section 627.7263, supra, we find that the lessee must be clearly informed that his insurance carrier will be responsible for any claim against the lessee during the use and operation of the vehicle.

Because of the defective compliance with the statutory requirements, Biscayne remains primarily responsible for the payment of claims and South Carolina is responsible for any excess.

Biscayne'next contends that the summary judgment should be affirmed because Biscayne is nonetheless entitled to common law indemnity. We disagree. Although the dangerous instrumentality doctrine places the primary responsibility upon the owner for damages caused as a result of negligence in the use of the instrumentality, he is ordinarily entitled to indemnity from his permittee. However, this right of indemnity is subject to the exception that if the owner leases the vehicle to another and the owner provides in that lease that he will furnish insurance, then the lessor will be denied indemnity. Truck Discount Corporation v. Serrano, 362 So.2d 340 (Fla. 1st DCA 1978); Morse Auto Rentals, Inc. v. Lewis, 161 So.2d 235 (Fla. 3d DCA 1964). As a result of the defective compliance with Section 627.7263, supra, the lessee necessarily contracted for Biscayne to provide liability insurance coverage as part of the rental agreement.

For the foregoing reasons, the summary final judgment in favor of Biscayne is reversed with directions to enter summary final judgment in favor of Guemes and South Carolina, the effect of which will be to determine that Biscayne affords the primary coverage and is not entitled to indemnity; and that the South Carolina policy provides excess coverage.

Reversed and remanded.

      . Biscayne had qualified as a self-insurer under the Florida Financial Responsibility Act, Section 324.171, Florida Statutes (1977).

      . In Cerniglia v. C & D Farms, 203 So.2d 1 (Fla.1967), the Court held that the appellee may advance reasons to support the judgment under attack which are different from those given by the lower court without filing a cross-assignment of error.

      . Section 627.7263, Florida Statutes (1976 Supp.) provided that the lessee’s insurance would be primary. This was changed by Chapter 77 — 468, Section 29, Laws of Florida, effective July 1, 1977 to provide that the lessor’s insurance would be primary unless otherwise stated. Since the lease was signed in 1978, the latter statute was applicable.

      . It should not be inferred from this holding that an accurate statement of the law, standing alone, necessarily shifts the lessor’s responsibility pursuant to the statute. Everyone is presumed to know the law. The information required to be communicated is the fact that lessee is contracting that his carrier, if any, will be primarily responsible for his coverage.

      .We do not find that the statute imposes the additional prerequisite that the lessee’s name be filled in. The statute only requires a blank space to provide for the lessee’s name. Consequently, we find that this provision is informational in that it benefits the lessor in the event that a claim is presented against it. Failure to fill in the lessee’s name, standing alone, does not preclude the lessor from shifting responsibility to the lessee.


author: BASKIN, Judge.

text:
    WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI BEACH, Appellant, v. ZUCKERMAN-VERNON CORP., a Florida corporation, Harold Vernon, Howard Cooper, Barry Horowitz, Irwin Zuckerman, Mildred Zuckerman, Melvin Zuckerman, Audrey Horowitz, Eileen Zuckerman, Arthur Siegel, Elaine Siegel, Murray Zelikoff, and Continental Management, Inc., a New York corporation, Appellees.
    No. 80-2220.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied June 18, 1982.
    Steel, Hector & Davis and Richard C. Smith, Miami, for appellant.
    Walters, Costanzo, Miller & Russell, Richard M. Gale, Heller & Kaplan and Daniel N. Heller, Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Savitt, Kotzen & France, North Miami Beach, for appellees.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Appellant sought a deficiency judgment in connection with the foreclosure of a mortgage it held on an apartment complex. Appellant requested a sum equal to the difference between the foreclosure judgment and the fair market value of the property. The trial court directed a verdict in favor of appellees, who included makers and guarantors of the notes and mortgage, and others who had assumed the mortgage.

Finding neither error nor abuse of discretion in the trial court’s rulings excluding testimony of a corporate owner’s officer concerning the value of the property, Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961); Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515 (Fla. 3d DCA 1961); excluding evidence of the price at which the property was resold, cf. New Jersey Sports & Exposition Authority v. Cariddi, 164 N.J.Super. 127, 395 A.2d 895 (1978) (in condemnation proceeding, valuation expert permitted to cite sales price both to explain valuation process and as basis for his opinion, but not as evidence of price paid); striking the testimony of appellant’s appraiser, cf. Denver Urban Renewal Authority v. Berglund-Cherne Co., 193 Colo. 562, 568 P.2d 478 (1977) (in eminent domain proceeding, expert witness may render an opinion, based on hearsay, concerning income derived from a lease; but testimony may not be used as proof of property’s value); see generally Cirack v. State, 201 So.2d 706 (Fla.1967) (expert’s opinion must be based on facts either in evidence or within his knowledge); and excluding evidence of price paid at foreclosure sale, see section 45.031(7), Florida Statutes (1979); cf. R. K. Cooper Construction Co. v. Fulton, 216 So.2d 11 (Fla.1968) (bid price not conclusive as to value of property in subsequent action at law on note); Fara Manufacturing Co., Inc., v. Federal Savings & Loan Association of Miami, 366 So.2d 164 (Fla. 3d DCA 1979) (evidence not necessarily conclusive with regard to value of property sold on application for deficiency decree), we affirm.


text:
    Denver W. BEDDOW, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2201.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied June 17, 1982.
    Bennett H. Brummer, Public Defender and Vincent J. Flynn, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA 1981); Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980); Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977).


text:
    WALTER MILLS LOGGING & PULPWOOD, Walter C. Mills, Sr., and Certified Pulpwood Dealers Self-Insurers Fund, Appellants, v. Walter C. MILLS, Sr., Appellee.
    No. AE-277.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Rehearing Denied June 2, 1982.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, P. A., Lake City, for appellants.
    Herbert A. Langston, Jr., of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED. Boyd Logging & Certified Pulpwood Dealers v. Boyd, 381 So.2d 268 (Fla. 1st DCA 1980).

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: WIGGINTON, Judge.

text:
    RISK MANAGEMENT SERVICES, INC., Appellant, v. Daniel Hugh SCOTT, Appellee.
    No. AF-409.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    Rehearing Denied June 7, 1982.

      Charles Voeelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, P. A., Lake City, for appellant.
    Grant F. Spinner of Spinner & Hart, P. A., Jacksonville, for appellee.
   WIGGINTON, Judge.

This is an appeal from a final order granting equitable distribution on a workers’ compensation lien. Appellee, Scott, sustained a compensable injury in 1980 and subsequently brought a civil action in the Circuit Court for Duval County against a third party tort-feasor. Appellant, Risk Management Services, Inc., filed a notice of lien seeking reimbursement of temporary total disability compensation paid in the sum of $10,682.64 and medical benefits paid and to be paid to and in behalf of Scott in the sum of $9,659.04, totaling $20,341.68. The insurer reserved $75,000 for future workers’ compensation benefits.

Scott settled his civil action for $37,500. While negotiating the compromise settlement, some discussion was advanced of a contemplated claim by Scott’s wife for loss of consortium. It was Scott’s lawyer’s thought that her damages should be about one-third of Scott’s recovery. There had been no such claim included in this lawsuit, no separate action in behalf of the wife had been brought against the third party and the proceeds check in the full amount reflected Scott to be the sole payee. On the other hand, the several parties acknowledged there to have been an understanding that comparative negligence was attributable to Scott at 5% and to the third party tort-feasor at 95%. They further agreed that Scott’s attorney’s fees were 40% of the settlement recovery, that being $15,000.

Following the hearing on the petition for equitable distribution, the trial judge found the compromise settlement to include the wife’s claim of $12,500 with the balance of $25,000 being due Scott and therefore the subject of equitable distribution. The trial court then applied Section 440.39, Florida Statutes (1975) and the rule and formula established in National Ben Franklin Insurance Company v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976) to conclude that employer/insurer should recover $2,929.20. We find that the trial judge misapplied the 1975 statute and also erred in granting a $12,500 setoff for Scott’s wife that was not supported by the evidence. We must disagree with the final calculation of distribution and reverse.

The trial court erroneously applied the formula in the Ben Franklin case, which formula had implemented the 1975 statutory Section 440.39(3)(a). The substance of that section was significantly amended by the 1979 legislature and in its pre-1979 form was inappropriate to the determination of this case. Prior to the statutory amendment the subsection provided for the employer or carrier to recover a maximum of 50% of the amount it had paid and future benefits to be paid. No restriction was made in the 1975 statute that the insurer’s recovery be limited to the remainder after employee’s attorney’s fees and costs were deducted. To minimize the inherent complications in applying percentages and factors to arrive at equitable distribution, Section 440.39(3)(a) was amended in 1979 to provide inter alia that:

. . . The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility. . . .

The amended section clearly allows the employee to deduct his entire attorney’s fees and costs from his recovery in the third party action before any amount is paid over to the insurer. There is nothing in the present statute which provides for apportionment of those items. See Lee v. Risk Management, Inc., 409 So.2d 1163 (Fla. 3d DCA 1982). After that, the insurer shall be reimbursed 100% from the employee’s recovery subject to a percentage reduction to offset claimant’s loss of full recovery, limits of insurance and collectibility. In this case, the limits of insurance are not applicable and the collectibility is not questioned. Ap-pellee’s claim that the differences in the statutes would not affect the applicability of the Ben Franklin case is without merit.

Appellee further asserts that the statute allows the trial court the discretion to determine in the case of a negotiated settlement, rather than a judgment entered after trial, the pro rata share to which the carrier is entitled. We disagree. Section 440.39(3)(a), Florida Statutes (1979) provides that the insurance carrier’s notice of payment shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of the law. It is as to the apportionment of the percentage of negligence attributable to the employee in any judgment or settlement, if ascertainable, for which that portion of the section applies to reduce the amount to be distributed to the insurer. Thus, the 5% comparative negligence factor being applied to reduce the sum finally due the insurer was proper and in compliance with the applicable amended statute.

This procedure and application of Section 440.39(3)(a) was approved in State of Florida, Department of Health and Rehabilitative Services v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981), where following the ultimate settlement of the case among the various parties the court held that the lien of the carrier required 100% recovery by the compensation carrier because, despite the settlement, plaintiffs had not demonstrated that they had received less than the full value of their damages. In the instant case, by virtue of the settlement, Scott did receive less than the full value of his damages, see Maryland Casualty Company v. Whitley, 375 So.2d 18 (Fla. 1st DCA 1979), but at most he established only that the carrier’s recovery should be reduced to 95% due to a questionable finding of comparative negligence amounting to 5%. Also see Lee v. Risk Management, Inc., supra.

Appellant indicated at the hearing that it had placed in a trust fund $75,000 to assure payment of any future compensation and medical benefits that may be due Scott. Because Scott is receiving settlement benefits in excess of a distribution to the insurer the court could properly have required Scott to partially secure the insurer’s share by escrowing the balance of his award, see Ramar-Dooley Construction Company v. Norris, 341 So.2d 546 (Fla. 2d DCA 1977); Gangler v. South Florida Crane Service, 385 So.2d 153 (Fla. 4th DCA 1980); and Culmer, supra. However, appellant waived this entitlement to reimbursement of future benefits by stating in its brief that should it obtain judgment as requested, it would not seek further recovery in the case. Since appellant will receive the distribution sought, it will be precluded from further demand of reimbursement from Scott.

It is clear from the provisions of the amended Section 440.39(3)(a) and the several cited decisions interpreting the statute that equitable distribution must be made in a manner contrary to that which was awarded by the trial judge. Rather than remand this matter for recalculating the distribution in accordance with this opinion, and so that there be no doubt as to the course to be followed, we will apply the factors to the statute.

The employee’s recovery of $37,500 is to be reduced $15,000, which is 40% for attorney’s fees, leaving $22,500 from which there is to l>e deducted $2,383.19 in costs, leaving $20,116.81. The insurer has paid to Scott or in his behalf workers’ compensation benefits of $20,341.68, of which appellant is entitled to receive 95% or $19,324.59. The balance of $792.22 shall be due Scott.

The trial court’s order is reversed and remanded with instructions that appellant be allowed equitable distribution in the amount of $19,324.59.

JOANOS and THOMPSON, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Sergio ALVAREZ and Antonio Alvarez, Appellees.
    No. 81-380.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 8, 1982.
    Spencer, Taylor & Homer and W. Thomas Spencer, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Bernard H. Butts, Hialeah, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

For the reasons expressed in Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980) and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980), the declaratory judgment finding that uninsured motorist benefits were available to the Alvarezes is reversed and remanded for the entry of a judgment determining that there is no such coverage afforded.

Reversed and remanded with directions.

ON REHEARING

In accordance with Article V, Section 4 of the Florida Constitution, we certify that the decision rendered by this court in this case is in direct conflict with the decision rendered by the District Court of Appeal, Fifth District, in Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982).

Appellees’ motion for rehearing is denied.


author: PER CURIAM. ANSTEAD, Judge, specially

text:
    Phillip Raoul KINMON, Appellant, v. STATE of Florida, Appellee. Carol CHESHIRE, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-577, 80-627.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Rehearing Denied June 9, 1982.
    Charles I. Poole, South Miami, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

An appeal is taken by Phillip Raoul Kin-mon from his conviction by a jury for possession of marijuana in excess of one hundred pounds. Finding no error, we affirm.

Appeal is also taken by Carol Cheshire from her conviction for possession of marijuana in excess of twenty grams. We agree with the trial court that the evidence permits an inference that the marijuana, located in a bedroom of which Cheshire had joint custody and control, was in plain view, and we therefore affirm on the authority of Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979).

AFFIRMED.

HERSEY and HURLEY, JJ., concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge, specially

concurring:

I agree that appellants’ convictions should be affirmed and write separately only to note that many of the issues raised on appeal by appellants were not preserved for review by proper and contemporaneous objections made at trial. Roban v. State, 384 So.2d 683 (Fla. 4th DCA 1980).


text:
    Roger Warren COOK, Appellant, v. Alcie Ann GRIFFITH, Appellee.
    No. 80-1399.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Rehearing Denied June 7, 1982.
    Robert C. Hackney, Fort Pierce, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks review of a judgment of the Circuit Court of St. Lucie County, Florida, that adjudicated that appellant is indebted to appellee in the sum of $12,600 and is required to pay appellee $75 per month for the support of his minor child.

The judgment appealed from was rendered June 13, 1980. A motion for rehearing and a notice of appeal were filed August 7, 1980. Both were untimely filed and thus this court is without jurisdiction to entertain this appeal.

Accordingly, this appeal is dismissed.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    CITY OF MIAMI, a Florida municipal corporation, Appellant, v. FRATERNAL ORDER OF POLICE, MIAMI LODGE NO. 20, a labor organization, Appellee.
    No. 81-117.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied June 18, 1982.
    George F. Knox, Jr., City Atty. and Ronald J. Cohen, Asst. City Atty., for appellant.

      Pelzner, Schwedock, Finkelstein & Klaus-ner and Robert D. Klausner, Miami, for appellee.
    Harold C. Culmer, Miami, for Miami Community Police Benevolent Ass’n, as amicus curiae.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The City of Miami seeks review of a partial summary judgment finding certain legislative action taken by the City of Miami Commission to be violative of the City Charter. Those actions dealt with certain civil service rules and regulations, and were based, in part, upon a consent decree entered into by the City and the United States Government, arising from an alleged violation of Title VII of the Civil Rights Act of 1984, 42 U.S.C. § 2000e et seq. (1976).

After the appeal to this court had been filed, the United States Court of Appeals, Fifth Circuit, reversed that portion of the consent decree which affected the Fraternal Order of Police and remanded to the Federal District Court for further proceedings, giving the F.O.P. an opportunity to be heard. U.S. v. City of Miami, 664 F.2d 435 (5th Cir. 1981).

While we do not have the benefit of the pleadings filed in the United States District Court, it is apparent from this record that the issues that both the City and the F.O.P. are attempting to litigate are substantially the same.

Since all the parties are presently before the Federal District Court and may be afforded complete relief there, we remand this cause with directions to stay, pending the outcome of the proceedings in the United States District Court. Massachusetts Mutual Life Insurance Company v. Ambassador Concessions, Inc., 293 So.2d 75 (Fla.3d DCA 1974).

Remanded with directions.


text:
    Elena VELIZ and Gilberto Veliz, her husband, Appellants, v. AMERICAN HOSPITAL, INC., Appellee.
    No. 81-1229.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    As Corrected on Denial of Rehearing June 7, 1982.

      Rudolph Browd, Miami, for appellants.
    Adams & Hill and Jeffrey C. Fulford, Orlando, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is taken from a Final Judgment entered on a jury verdict finding that appellee, American Hospital, Inc., was not negligent in a medical malpractice action. The first of two issues raised for our review is whether two instructions given the jury as to the standard of care required of nurses were so conflicting and confusing as to necessitate a new trial. By the second point of this appeal, appellant claims prejudicial error caused by a casual communication between the defense representative and a juror during a luncheon recess. The first issue has merit. The second issue is without merit.

On February 5, 1979, appellant was admitted to American Hospital for foot surgery. On February 6th an operation was performed under general anesthesia. Other medications were subsequently administered post-operatively. On February 7, 1979 at approximately 9:30 A.M. appellant rang the nurse’s bell for assistance. The call was answered by a nurse on duty who helped appellant to the bathroom but then left her alone. While appellant was attempting to undress and wash, she experienced dizziness and fell backwards, injuring her lower back on the bathtub. The question before the jury was whether leaving the appellant in the bathroom unattended, while she was still under the influence of sedative medication, was below the standard of care required by health care providers.

At the conclusion of all the evidence, a charge conference was held at which time defendant requested a special jury instruction which was objected to by appellant. The trial court sustained the objection and indicated that the instruction would not be given. However, the trial court did read the first part of the challenged instruction to the jury, as follows:

The practice of medicine is not an exact science and nurses are not to be held liable for honest errors of judgment.

The instruction given to the jury immediately before the above-challenged instruction was Standard Jury Instruction 4.2(a) which reads:

Negligence is the failure to use reasonable care. Reasonable care on the part of a hospital is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by hospitals in communities having similar medical standards and available facilities.

Appellant contends the instruction is erroneous because it is confusing as to the duty of care owed to the patient and suggests conflicting standards of proof. We agree.

This subject was considered by the Supreme Court Committee on Standard Jury Instructions which thought it deserving of a specific recommendation. That recommendation is found as a note following Standard Jury Instruction 4.2(a) and states:

The Committee recommends that no charge be given to the effect that “a physician is not to be held liable for an honest error in judgment” and that “it must be shown that the course he pursued was clearly against the course recognized as correct by his profession.” The charge is confusing, difficult of application and argumentative.

The Florida Supreme .Court’s decision in Allstate Insurance Company v. Vanater, 297 So.2d 293 (Fla.1974) is directly applicable in this case. In it, the Supreme Court held that the trial court’s instruction (however justifiable under the authorities before the trial judge) gave the jury two different standards of proof to apply, thus giving the jury contradictory instructions. The mere giving of two conflicting standards may, without more, constitute reversible error, even though one of the standards correctly applies. Key West Electric Company v. Albury, 91 Fla. 695, 109 So. 223 (1926); Florida East Coast Railway Company v. Jones, 66 Fla. 51, 62 So. 898 (1913). An instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that otherwise they may not have reached. Finch v. State, 116 Fla. 437, 156 So. 489 (1934). See also Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977). Under the instructions in this case, the jury could have found the defendant not liable because it believed the nurse on duty made an honest mistake of judgment while at the same time it also could have believed her conduct constituted a clear departure from the required standard of care.

Finally, this court recently found error in a trial judge’s giving jury instructions similar to those in this case, on grounds the instructions were confusing and conflicting. Webb v. Priest, 413 So.2d 43 (Fla.3d DCA 1982).

Reversed and remanded for a new trial.

      . Special instruction No. 9 as requested reads as follows (but only the underlined portion was given to the jury):
      The practice of medicine is not an exact science and nurses are not to he held liable for honest errors in judgment. They are allowed a wide range in the exercise of their judgment and discretion. To hold a nurse liable it must be shown that the course she pursued by [sic] clearly against the course recognized to be acceptable by her profession.

      . Florida Standard Jury Instructions, Supreme Court Committee on Jury Instructions in Civil Cases, Library of Congress, Catalog No. 67-24732, copyright 1981, The Florida Bar.


author: SCHWARTZ, Judge.

text:
    Sara D. PUJALS, Appellant, v. Santiago PUJALS, Appellee.
    No. 81-1360.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied June 18, 1982.

      Joel V. Lumer, Miami, for appellant. Richard Touby, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

The former spouses involved in this case are both medical doctors whose marriage was dissolved on November 21, 1975. The final judgment — in copying, although not formally adopting or even referring to a simultaneous agreement to that effect —provided for rehabilitative alimony payments of $550.00 per month through December, 1980, to be made on the first of each month. There was no specific provision for retention of jurisdiction over the cause or the parties.

On December 1, 1980, Santiago Pujáis duly made the last payment required by the judgment. However, on December 31, 1980, the last day of the rehabilitative term, the ex-wife filed a petition for modification which claimed that the alimony should be extended or made permanent. The basis of the petition was an allegedly uncontemplat-ed change of circumstances, a serious and debilitating illness which had afflicted Ms. Pujáis after the dissolution. The trial judge dismissed the petition on the apparent ground of lack of jurisdiction and Sara Pujáis has appealed.

We reverse the order below on the sole ground that, by virtue of its inherent as well as statutory authority and even without an express reservation, the trial court retains jurisdiction to consider a petition for modification or extension of rehabilitative alimony as long as it is filed within the period of rehabilitation provided by the final judgment. Section 61.14, Fla.Stat. (1979); Myrick v. Myrick, 402 So.2d 452 (Fla. 5th DCA 1981); Patrick v. Patrick, 399 So.2d 72 (Fla. 5th DCA 1981); Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981), review denied, 402 So.2d 612 (Fla.1981); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA 1980), review denied, 392 So.2d 1378 (Fla.1980); Sima v. Sima, 337 So.2d 863 (Fla. 2d DCA 1976); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Hernandez v, Hernandez, 325 So.2d 483 (Fla. 3d DCA 1976); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975); Cantor v. Cantor, 306 So.2d 596 (Fla. 2d DCA 1975). Because the issue is a jurisdictional one, it does not matter that the petition was filed on the very last day of the rehabilitative term, see Cann v. Cann, supra, at 334 So.2d 329, nor — as we hold, contrary to dicta in Lee to which significance has never been subsequently ascribed — that the husband then had no ex-ecutory obligation to pay alimony. The power and authority of a court to act cannot depend upon the out-of-court actions or inactions of the litigants. For these reasons, we conclude that the trial court must consider the merits of the petition for modification of rehabilitative alimony.

The petition also sought modification of the provision in the judgment— which again mirrored the agreement — under which Ms. Pujáis had the right to reside in the marital home with their son until January 1, 1981, after which it was to be vacated and then sold, with the proceeds divided. It is clear that no cognizable change of circumstances was alleged to justify modification of this portion of the judgment, which is no more than an aspect of child support. See McNaughton v. McNaughton, 332 So.2d 673, 675 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 424 (Fla. 1977). Nonetheless, and although we frankly doubt her ability successfully to do so, we conclude that the wife should be given an opportunity to amend her petition to attempt sufficiently to state a claim for relief in this regard. See Pasekoff v. Kaufman, 392 So.2d 971, 976 (Fla. 3d DCA 1981).

Reversed.

      . Since the parties did not exchange property rights or obligations, the agreement was not a true “property settlement agreement," and its alimony provisions therefore remain legally subject to modification. Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978); compare Salomon v. Salomon, 196 So.2d 111 (Fla.1967); Pruitt v. Pruitt, 370 So.2d 813 (Fla. 3d DCA 1979).

      . No testimony was taken, and the petition was dismissed rather than denied.

      . Because of this determination we do not resolve the conflict as to the meaning of the clause in the agreement and judgment that
      [i]n the event of changed circumstances during the five year period, either party may petition the Court for modification and in the event the Wife is unable to obtain her medical license after diligent effort to do so, the Court shall reserve jurisdiction at the conclusion of the five year period to determine if Wife shall be entitled to any additional alimony and, if so, what amount.
      Sara Pujáis in fact obtained her medical license and the mooted issue is whether the modification permitted for “changed circumstances during the five year period” is limited to that period or may extend thereafter.

      .61.14 Modification of alimony judgments; agreements, etc.—
      (1) When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed or the child or children who are beneficiaries of an agreement or court order as described herein have reached the age of 18 years since the execution of such agreement or the rendition of the order, either party may apply to the Circuit Court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.
      The appellee points out that the statute refers to changes in the “amount” of alimony or support and argues that it does not therefore permit an extension of the period, or change in the character of an alimony award. As the cases cited demonstrate, however, the statute may be given no such restricted interpretation. An increase in the number and duration of payments is assuredly an increase in the “amount” which must be paid.


author: JORGENSON, Judge.

text:
    The ESTATE OF George Drew CONGER, by its Personal Representative, Richard M. McIver, Appellant, v. Thomas Abe CONGER, Appellee.
    No. 81-2427.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied June 11, 1982.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Jeffrey M. Weissman and Robert L. Shevin, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Dr. George Drew Conger died on August 10, 1981 in Dade County, Florida. Prior to his death, he was president and chairman of the board of the Conger Life Insurance Company. His son, Thomas Abe Conger, served as executive vice president. By the terms of the will, Richard M. Mclver was appointed personal representative for the estate. No bond was required of the personal representative. The will created a marital trust, two charitable trusts and a residuary trust. Thomas Conger was named sole trustee. As was the case with the personal representative, the trustee was not required to furnish bond.

The principal asset of the estate is sixty-two percent of the stock in Conger Life Insurance Company. On August 28, 1981, Thomas Conger was elected president of the company by the board of directors. It is undisputed, and the record reflects, that up until October 16, 1981, the Conger Life Insurance Company was in full compliance with the Florida Corporate Code and the Florida Insurance Code. On October 16, 1981, while Thomas Conger was out of the state on company business, the following events occurred:

1) Richard M. Mclver, in his capacity as personal representative, held a “stockholders’ consent to action” without a meeting and effected the following changes: the discharge of thirteen of the fifteen members of the board of directors; the creation of a three-person board of directors (Mclver became a member of that new board); the discharge of Thomas Conger as president of Conger Life Insurance Company; the election of a new president (Mr. Mclver became the new president); the passage of certain bank resolutions deleting a requirement for two signatories on company checks; and, the addition of Mclver as a signatory to company accounts without the requirement of another corporate officer’s signature.

2) Thereafter, Mclver, in his capacity as president, changed the locks on the company offices, moved certain company files, and held himself out as the individual directing the company activities.

Thomas Conger filed a motion styled “Verified Motion for Emergency Relief” which was heard on October 20, 1981. The trial court found for Thomas Conger and it entered an order which essentially restored the parties to their positions prior to October 16, 1981. It is from that order which Mclver, the personal representative, appeals. We affirm.

Mclver contends that he was entitled, as a matter of law, to take the actions previously described pursuant to his authority as personal representative under the Florida Probate Code. Section 733.612(10), Florida Statutes (1979). McIver insists that the exercise of his voting prerogatives as the majority shareholder under Sections 607.394 and 607.097, Florida Statutes (1979) supersedes the provisions of the Florida Insurance Code, since the corporate charter issued prior to the enactment of Florida Statute 624.01 et seq. It is undisputed that Conger Life Insurance Company was in compliance with the Florida Insurance Code prior to Mclver’s actions. McIver ignores the effect of Section 628.041, Florida Statutes (1979), which provides that the Insurance Code prevails when it is inconsistent with the General Corporate Code. The violations of the Florida Insurance Code are manifest on this record. Section 624.404(3), Florida Statutes (1979) provides the “[Florida Insurance Department] shall not grant or continue authority to transact insurance in this state as to any insurer the management of which is found by it to be incompetent or untrustworthy or so lacking in insurance company managerial experience as to make the proposed operation hazardous to the insurance-buying public.” Mclver does not allege that he has the requisite insurance management experience, but, rather, states that he is willing to “drop my law practice” in order to manage this company. Mclver’s other corporate actions also violated the Insurance Code. Section 628.-231(1), Florida Statutes (1979) provides that “the affairs of every domestic insurer shall be managed by not less than five directors.” We need not visit the other areas of Mclver’s unlawful acts other than to say that the activities of Conger Insurance Company are properly regulated by the Florida Insurance Department. We have recently considered the impairment of contract issue. Yellow Cab Company of Dade County v. Metropolitan Dade County, 412 So.2d 395 (Fla. 3d DCA 1982). Speaking for the court, Judge Ferguson laid down the test for unconstitutional impairment of contract. Mc-lver’s claims with respect to impairment of contract do not meet the test as established in Yellow Cab, supra. Pomponio v. Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979). The public’s interest in this litigation far outweighs Mclver’s interest as personal representative. The state has a legitimate interest in the supervision of the control of an insurance company’s operations. Springer v. Colburn, 162 So.2d 513 (Fla.1964); Feller v. Equitable Life Assur. Soc. of the United States, 57 So.2d 581, 586 (Fla.1952); Production Credit Associations of Florida v. Department of Insurance, 356 So.2d 31 (Fla. 1st DCA 1978); Hughes v. Professional Insurance Corporation, 140 So.2d 340, 347 (Fla. 1st DCA 1962). Thomas Conger, in his capacity as trustee and ultimate beneficiary, has an interest in insuring that the company’s operations are in conformity with state law.

Appellant contends that the relief received by Mr. Conger is in excess of the trial court’s jurisdiction, absent an eviden-tiary hearing. We reject that contention as utterly without merit since the trial court conducted a full hearing and no evidentiary facts were in dispute. A circuit court, sitting in its probate capacity, has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries. In re Estate of Feldstein, 292 So.2d 404 (Fla. 3d DCA 1974). As we stated in Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980):

“An order of the probate court arrives in the appellate court clothed with the presumption of its correctness and will be affirmed if it can be supported on any theory. In re Estate of Schor, 172 So.2d 888 (Fla. 3d DCA 1965). The findings of a probate court are entitled to the same weight as the findings of any other trier of fact. In re Estate of Winslow, 147 So.2d 613 (Fla. 2d DCA 1962). The burden is on the appellant to show that the findings and order of the probate court are clearly erroneous. Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1933).”

Beck at 272.

The intent of the testator, by the terms of the will, is to make Thomas Conger the chief operating officer of Conger Life Insurance Company, and to continue the business of the company./ The personal representative should give effect to the obvious intent of the testator. Johnson v, Burleson, 61 So.2d 170 (Fla.1952). McIver’s actions, assuming the best of intentions, are clearly at variance with Dr. Conger’s expressed wishes.

We affirm the judgment of the trial court in all respects and remand for further proceedings in accordance with the views expressed herein.

      . The Verified Motion for Emergency Declaratory and Preliminary and Permanent Injunctive Relief was properly filed in the probate proceedings below. Mclver’s threshold complaint is that Thomas Conger lacked standing to seek the relief requested. That issue was not presented to the trial court and, therefore, is not properly preserved for review. Jaruagua Enterprises, Inc. v. Dom, 339 So.2d 702 (Fla. 3d DCA 1976). Even if we were to consider the standing issue, appellee, nevertheless, does have standing pursuant to Section 731.201(21), Florida Statutes (1979). In re Estate of S. Cyrus Lewis, 411 So.2d 368 (Fla. 4th DCA 1982).

      . ITEM TWELVE (a) of the will provides: “My Trustee shall hold said shares of stock and other trust property for a period of fifteen (15) years from the date of my death and shall vote the same and invest or dispose of the trust property as he deems to be in the best interest and preservation of Conger Life Insurance Company.
      ITEM FOURTEEN of the will vests the broadest possible powers in the administration of the several trusts in the trustee.
      ITEM SIXTEEN of the will appoints Thomas Conger as sole trustee,

      . While we agree that Section 733.612(10), Florida Statutes (1979) permits a personal representative to vote stock held by him for the benefit of the ultimate beneficiaries, he may not do so in derogation of other provisions of the will. See Johnson v. Burleson above.