author: BARKETT, ROSEMARY, Associate Judge.

text:
    Eddie L. WALKER and Zell G. Walker, Appellants, v. Jo Ann BENTON and Bessie M. Roberts, Appellees.
    No. 80-1698.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.

      Todd L. Smith, Fort Lauderdale, for appellants.
    Alan H. Konigsburg, Fort Lauderdale, for appellees.
   BARKETT, ROSEMARY, Associate Judge.

Eddie and Zell Walker appeal from a final judgment which awarded damages and specific performance of a contract for the conveyance of real property. We reverse as to damages, while finding that specific performance is warranted. We remand for certain factual determinations in connection therewith.

On February 15,1979, Jo Ann Benton and her mother, Bessie Roberts, entered into a deposit receipt contract with Eddie and Zell Walker for the purchase of certain real property. Although the contract, which was an FHA form, provided that all monies would be refunded and the parties would be relieved of their liability thereunder if the purchaser failed to qualify for an FHA mortgage, the sellers did not object to the purchasers’ reapplication for financing after they had been rejected twice on the basis of insufficient income. On June 1, 1979, the FHA issued a firm commitment to the purchasers and the only obstacle to closing was certain repairs and reports which the sellers had indicated they would complete. By letter dated June 12, 1979, however, the sellers summarily and unilaterally terminated the contract and refused to convey.

While the contract herein would have terminated automatically upon the purchasers’ failure to originally obtain FHA financing, we believe that the acquiescence of the#sellers in the reapplication for financing constituted a waiver of their right not to proceed under the contract. Thus, we agree with the trial court’s order requiring specific performance.

We also agree that the purchasers are entitled to some damages incident to the award of specific performance, but not those sought by the purchasers and ordered by the trial court. The purchasers, in addition to specific performance, sought damages for attorney’s fees, furniture storage costs and rent for alternative housing pending the closing, and damages resulting from the loss of their FHA mortgage commitment because the purchasers would become obligated to a mortgage of greater cost and higher interest upon the eventual closing of this transaction. The trial court granted damages for furniture storage and alternative rent; deferred the question of attorney’s fees; and, with reference to the loss of the favorable mortgage rate, provided only that the conveyance be upon the terms of the FHA commitment issued in June, 1979.

The law in Florida clearly allows damages incident to granting specific performance, but such damages are limited to those which will return the parties to the status quo at the time of the breach:

“‘the general rule is well settled that where the contract is not completed until after the time stipulated for that purpose, but the court nevertheless decrees a specific performance, it will adjust the equities of the parties by placing them as far as possible in the same position which they would have occupied had the agreement been completed at the prescribed day, and to that end it will allow to the purchaser the rents and profits, and to the vendor interest upon the purchase price from and after that date.’ ”
Salmas v. Rieck & Fleece Builders Supplies, Inc., 109 So.2d 394 (Fla. 2d DCA 1959).
330 Michigan Ave. Inc. v. Cambridge Hotels, Inc. (1966 Fla.) 183 So.2d 725.

The “rent and profit” allowable in this case is not the rent for alternative housing during the interim between the appellants’ default and the eventual'closing. Rather, it would be the yield of the property which is the subject of the suit. Such relief was not sought in the purchasers’ complaint. Furthermore, should the purchasers now seek an award of the value of the rents and profits from the subject property, the court must then also award to the seller the interest upon the purchase price from the closing date.

Consequently, the “damages” awarded incident to a decree of specific performance are clearly different from those which would be awarded for breach of the contract. The court is really requiring an accounting in its attempt to adjust the equities between both parties in order to return them to their relative position at the time of closing.

“The general rule, where specific performance is granted of a contract to sell realty, is that the vendor must account to the purchaser for any deprivation of the use of the property from the date when possession should have been transferred, and for any detriment to the property caused by his failure to preserve it properly; as against which the vendor is entitled to credit for any expenses properly incurred by him for the improvement or preservation of the property, and for any loss of the use of the purchase money or other consideration from that same date, the legal rate of interest being the measure of compensation' as to the purchase money unless the contract specifies a different rate.” 7 A.L.R.2d, at page 1206.

Obviously, in some instances, the purchaser would elect not to seek “rents and profits” since the interest on the purchase price would exceed the value of the “rents and profits”.

With reference to the purchasers’ claim that they should receive the benefit of the mortgage rates which would have been available at the time of closing, the trial court decreed that: Clearly, the court has no authority to assure that the purchasers can obtain another commitment similar to the one issued on or about June 1, 1979, from the FHA. The court, however, in order to return the parties to their relative positions, should assess as damages the difference in total interest payments under a mortgage loan at the terms of the expired FHA commitment and a mortgage loan under the current interest rate. Obviously, the trial court must retain jurisdiction until the transaction is closed and the actual mortgage on the subject premises is obtained by the purchasers in order to make the appropriate damage calculation. Home America, Inc. v. Atkinson, 392 So.2d 268 (2d DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (3d DCA 1980).

“conveyance shall be ... upon such additional terms as specified or required by the subsequent condition represented by the F.H.A. commitment issued on or about June 1, 1979, particularly with regard to the interest rate to be applied

Since the court reserved ruling on the claim of attorney’s fees, the appellate issue of attorney’s fees is premature.

In summary then, we affirm the award of specific performance herein. However, the trial court must determine the amount of damages to award appellees as a result of the increased mortgage rate which the purchasers would be presently required to pay. Should the purchasers at this time seek the additional allowable damages occasioned by the deprivation of the use of the property, the trial court must determine what those damages should be and offset same by the interest on the purchase money which the seller would have received.

Additionally, it must be recognized that the economic climate has materially changed since June of 1979, and the possibility exists that the purchasers would be unable to obtain a mortgage at all in order to purchase the property. Under these circumstances, the plaintiffs should be allowed to amend the complaint in order to seek damages for a breach of the contract instead of specific performance.

ACCORDINGLY, WE AFFIRM IN PART AND REVERSE IN PART, REMANDING FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

DOWNEY and MOORE, JJ., concur.


source: Caselaw Access Project

author: LETTS, Chief Judge.

license: Public Domain

text:
    Jerry Wayne VEACH, Appellant/Cross-Appellee, v. Lena Ann VEACH, Appellee/Cross-Appellant.
    No. 80-1746.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.

      Michael K. Davis of Rosenberg & Davis, Davie, for appellant/cross-appellee.
    Thomas E. Brandt of the Law Office of Thomas E. Brandt, Fort Lauderdale, for appellee/cross-appellant.
   LETTS, Chief Judge.

The final judgment of dissolution- originally required the husband to pay only rehabilitative alimony and he now appeals a modification order which amended the alimony provision to compel the payment of “$100 per month until such time as the wife dies, remarries, is capable of being self-supporting, or further order of this court.” We affirm.

The husband’s basic position is that the original final judgment which only awarded rehabilitative alimony for a set period, contained no provision for the court’s continuing jurisdiction. Consequently, he argues that under Section 61.14(1) of the Florida Statutes (1979) the Court only retains jurisdiction if “... the circumstances or the financial ability of either party has changed ... since . .. the rendition of the order.”

Relying solely on the required presence of this change of circumstance, the husband points out that the petition for modification contains no allegation of change in circumstance and instead dwells solely on why the wife has been “utterly incapable” of rehabilitating herself. Accordingly, he argues that the court had no jurisdiction to amend and extend the alimony payments. We disagree.

The original award was obviously based on the hoped for premise that the wife could and would recover from her psychiatric problems at the end of the rehabilitative period. This is not only inherent in the very definition of the word “rehabilitation,” but also in this ease because the court concomitantly required the husband to pay much of her medical and psychiatric fees during the same period. It is equally obvious from our study of the testimony at the modification hearing that the wife suffers from continuing severe emotional and psychological problems which have made her incapable of finding sustained employment. This is conceded by the husband who admits that “that much is evident in the rambling disoriented nature of her testimony.” However, the husband argues that this does not constitute a change in circumstances at all and points out that it is merely a continuation of the same mental illness which she suffered from at the time of final dissolution when only rehabilitative alimony was awarded.

There is merit to this argument, but it ignores the purpose of rehabilitative alimony. As the Second District put it in Lee v. Lee, 309 So.2d 26, 28 (Fla. 2d DCA 1975):

“The entire concept is another viable working tool for the courts in those cases wherein the present dependent party in a dissolution proceeding apparently has the potential ultimately to ‘go it alone.’ ”

We agree that the purpose of rehabilitative alimony is to sustain the dependent spouse until he or she can “go it alone.” As a consequence, if it transpires that the dependent cannot go it alone, it would defeat the entire equitable concept of what alimony is all about to be unable to extend it. At the very time of dissolution, in contrast to what is foreseen when permanent support is awarded, it was envisaged that the wife would gradually undergo a change of circumstances and become self-supporting. The hoped for change has not taken place and its failure to materialize is most certainly a change in expectation or, as we perceive it, a change of circumstance in reverse.

We, therefore, align ourselves with the Second District decision in Lee v. Lee, supra, and with the Fifth District holding in Myrick v. Myrick, 402 So.2d 452 (Fla. 5th DCA 1981), and hold that “so long as the petition for modification is filed before the time for making payments has expired, the trial court continues to have subject matter jurisdiction to hear and decide the issues raised by the petition even after the rehabilitation period has run.” Id. at 453.

As to the cross-appeal, we agree that the permanent award is very low but are compelled to affirm it under the rationale expressed in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

AFFIRMED.

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

      . In fact we feel the modification petition does allege a change in circumstances because it not only alleges that the husband's income has increased, but it also alleges that her needs have increased. We do not perceive that the absence of the magic words “change in circumstances” should prove fatal. However, while this alone would appear to us to be sufficient, it is not the particular reason for our main discourse.

      . The order of the special master after the modification hearing so found.


author: PER CURIAM.

text:
    Edward H. SOLLEY, Appellant, v. Claudette F. SOLLEY, Appellee.
    No. 80-2057.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Mark C. Menser, Fort Lauderdale, for appellant.
    Christine Petersen Tatum, Fort Lauder-dale, for appellee.
   PER CURIAM.

The parties to this appeal were divorced on September 10, 1977. In the final judgment of dissolution of marriage the trial court awarded the appellee $500 toward her attorney’s fees. After proceedings subsequent to the final judgment a successor judge awarded attorney’s fees in the amount of $7,500 on November 4, 1980. Credit was allowed for the $500 previously paid by the appellant pursuant to the final judgment of dissolution. It is this latter order which is the subject of this appeal. We reverse.

No appeal was taken from the final judgment of dissolution of marriage. The record clearly shows that the sum of $500 was awarded as total attorney compensation to be paid by the appellant for services performed on the case through the entry of final judgment. Because no appeal was taken the final judgment became final and not subject to later modification.

It is evident from the record that the successor judge, in his order of November 4, 1980, reassessed the compensation due ap-pellee’s attorney for services performed pri- or to the entry of final judgment. This was improper because the court was without jurisdiction to modify the previous award of attorney’s fees. The trial court should have calculated the appellee’s attorney’s fees on the basis of services performed by appel-lee’s counsel subsequent to the entry of final judgment.

Accordingly, the order awarding attorney’s fees in the amount of $7,500 is reversed and this cause is remanded for the trial court to consider only those services performed subsequent to the entry of final judgment. For this purpose the trial court may receive additional evidence.

REVERSED AND REMANDED.

DOWNEY, MOORE and HURLEY, JJ., concur.


text:
    Edward Dean MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 80-568.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Edward Dean Moore appeals from his conviction of aggravated assault assigning as error the refusal of the trial court to instruct the jury on penalties.

The record discloses a bare request that the penalties instruction be given. There was no objection to the trial court’s refusal to give the instruction and no statement of the grounds of objection.

Appellant having failed to preserve the error, we affirm. See Austin v. State, 406 So.2d 1128, (Fla.4th DCA 1981).

AFFIRMED.

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


text:
    Sidney EDER and Adele J. Eder, his wife, Appellants, v. YVETTE B. GERVEY INTERIORS, INC., a New York corporation, Appellee.
    No. 80-1375.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Ronald Sales of Law Offices of Ronald Sales, P. A., West Palm Beach, for appellants.
    John W. Bellamy, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment awarding the plaintiff corporation in excess of $16,000 for breach of contract.

The Eders retained the services of appel-lee corporation in the person of Yvette Ger-vey to furnish and decorate their condominium apartment. According to appellants the maximum expense to them was to be $50,000 based upon cost plus a percentage. Appellee asserts that the figure was merely a cost estimate.

This figure was exceeded in early 1978 and more than $50,000 was paid by the Eders on account. Ms. Gervey testified that at one point Mrs. Eder told her not to worry about compensation because Mr. Eder was an honorable man who paid his bills. The amount owed became a matter of controversy.

At a meeting on March 4, 1978, Ms. Ger-vey told Mr. Eder that she was over her budget and didn’t want to suffer a loss on the job. Mr. Eder testified that the parties then reached a compromise whereby the total sum of $60,000 was to constitute full settlement of the claim. Mr. Eder further testified that in reliance on his belief that the parties had agreed to a compromise he paid $9,700 at the time of the meeting and $4,000 on April 12,1978. Ms. Gervey admitted that she was aware of Mr. Eder’s impression that the figure of $60,000 reflected a full settlement, however she testified that she never actually agreed to accept the compromise sum.

Thereafter, on May 9,1978 the Eders sent a check to appellee in the amount of $5,000 which bore the legend: “balance in full for all work done.” Taking the position that a large sum remained due, appellee endorsed the check “the above is not acceptable as full payment,” cashed it and brought this suit for the amount claimed as the unpaid balance on the account, prevailing on that claim in the lower court.

The primary issue thus presented is whether the payee of a check (the creditor) which is tendered in full and final performance of a disputed obligation may, by noting on the check a reservation of rights, cash the check and thereafter successfully rely on that reservation of rights to defeat an express, written condition inscribed on the check by the debtor that acceptance constitutes payment in full. Put another way, the question is whether Section 671.-207, Florida Statutes (1979), (section 1-207 of the Uniform Commercial Code), applies to final payment for goods or services. That section provides:

A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest” or the like are sufficient.

Neither precedent nor commentary is consistent in the treatment of this issue. Illustrative are Yelen v. Cindy’s, Inc., 386 So.2d 1234 (Fla.3d DCA 1980) and Miller v. Jung, 361 So.2d 788 (Fla.2d DCA 1978). In Yelen, the restrictive endorsement: “Received as partial agreement without prejudice, under protest, with full exclusive reservation of rights” was held insufficient to defeat the payor’s clear expressed intention that acceptance of the check constituted a compromise and settlement. Section 671.-207 Florida Statutes (1979) was not discussed.

In Miller, on the other hand, a landscaper received a check (for less than the amount claimed) marked “Landscaping paid in full” on the front and “cashing of this check constitutes release and waiver of any lien,” on the reverse. Adding the words, “Negotiated by named payees under protest and with reservation of all their rights,” the landscaper negotiated the check. The trial court denied the landscaper further payment because he had failed to notify the drawer of his reservation of rights prior to negotiating the check. The Second District reversed, holding that there was adequate reservation of rights under Section 671.207 and that to require prior notification would “eviscerate the purpose of the section, ...”

The conflicting policies represented by these disparate results are discussed by White and Summers, Uniform Commercial Code § 13-21 (2d ed. 1980) (Miller view) and 6A Corbin, Contracts § 1279 (2d ed. 1962 & Supp.1980) (Yelen view).

From the former authority, at page 547:

However, we believe, and virtually all post-Code courts that have been at least tangentially faced with the issue agree, that 1-207 authorizes the payee to indorse under protest and accept the amount of the check without entering an accord and satisfaction or otherwise forsaking his claim to any additional sum allegedly due him.

From the latter authority, at page 293 of the supplement:

It is unfair to the party who writes the check thinking that he will be spending his money only if the whole dispute will be over, to allow the other party, knowing of that reasonable expectation, to weasel around the deal by putting his own markings on the other person’s checks. There is no reason why § 1-207 should be interpreted as being an exception to the basic duty of good faith, when it is possible to interpret the two sections consistently. The academic writers who support this result offer no analysis, to the current knowledge of this treatise, which would justify licensing the recipient of the check to so deceive the drawer.

Another source of authority for conflict is the language used in respective Comments on this Code section. Thus, the 1972 official text comments to the Uniform Commercial Code (American Law Institute and National Conference of Commissioners of Uniform State Laws) provides in pertinent part:

This section provides machinery for the continuation of performance along the lines contemplated by the contract despite a pending dispute, by adopting the mercantile device of going ahead with delivery, acceptance, or payment “without prejudice,” “under protest,” “under reserve,” “with reservation of all our rights,” and the like. All of these phrases completely reserve all rights within the meaning of this section.

This at least suggests that a prerequisite for application of § 1-207 is the necessity for or possibility of a continuing performance, so that a check given as final payment upon the completion of performance is excluded. (Yelen view).

The contrary view appears to be supported by the Florida Code Comment:

This section offers a device of considerable practical value, in permitting a party to accept whatever he can get in payment, performance etc. without having to gamble with his legal rights to demand the balance of the payment or performance. It should be emphasized however, that the party relying on such rights must have stated explicitly to the other that he is reserving them, or that he is continuing under protest.

The sheer weight of authority appears to favor the Miller view. The question which we are at last required to answer is whether that view comports with logic and sound public policy and is discernible as the legislative intent in enacting the language we now attempt to apply.

We determine that it is not and therefore certify that our opinion expressly and directly conflicts with Miller v. Jung, supra.

It is our opinion that the statute in question may not be employed to defeat a compromise and settlement or accord and satisfaction where the requisite elements for either of those devices are present or where a check is tendered in final payment for goods or services and is appropriately endorsed by the drawer in clear and un-equivocable language which check is then accepted and cashed by the payee.

We therefore reverse the final judgment and remand for entry of judgment for the defendants/appellants. Because appellants concede that they were not entitled to attorneys’ fees at the trial level, those will be stricken.

REVERSED AND REMANDED.

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


author: LETTS, Chief Judge. DOWNEY, Judge, MOORE, Judge,

text:
    SECURITY INSURANCE COMPANY OF HARTFORD, Appellant, v. INVESTORS DIVERSIFIED LIMITED, INC., d/b/a Johnny’s Auto Repair, Appellee.
    No. 80-1738.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.

      Rosemary Cooney of Paxton, Crow, Tap-lin & Bragg, P. A., West Palm Beach, for appellant.
    Michael P. Lesniak of James & Lesniak, P. A., Fort Pierce, for appellee.
   LETTS, Chief Judge.

This case involves the theft of an unsold fork lift from an equipment dealer whose carrier claims the applicable insurance policy did not cover larceny by trick. The trial judge disagreed and found coverage. So do we.

The facts of this case would make interesting material for a moot court competition and indeed the lawyers on both sides have written superior briefs and have made excellent oral presentations before this court.

In essence, the dealer received a telephone call, supposedly from a desirable customer who asked to be allowed to try out a fork lift with a view to purchasing same. Agreeing to permit a demonstration, it was arranged during the same telephone call for the fork lift to be picked up from the dealer by the customer’s agent “Ronald.” In due course “Ronald” arrived and the dealer made out a ticket to the customer which “Ronald” signed, loaded the fork lift onto a U-Haul trailer and drove away.

Needless to say the fork lift was never returned and when the dealer called the customer to inquire of its whereabouts, he discovered that the previous telephone conversation had not been with the customer at all, but with an imposter. Moreover the customer had no employee named “Ronald,” didn’t want a fork lift and had never seen the dealer’s fork lift which in fact had been stolen. Upon this realization, the dealer called the police and notified his insurance company which denied coverage.

We have seen many denials of coverage, some almost frivolous, but this is not one of those because Florida has yet to rule directly on this particular policy language. The outcome turns on whether we follow the rule adopted in California, in which case the dealer has coverage, or the rule of the Fifth Circuit, in which event he does not. We recognize that the Fifth Circuit is much closer to home, yet it appears to us that the California reasoning is superior and thus we adopt it.

The insurance policy in question contained the following exclusionary clause:

4(g) Loss, damage, or expense caused by or resulting from misappropriation, secretion, conversion, infidelity, or any dishonest act on the part of the insured or other party of interest, his or their employees or agents or any person or persons to whom the property may be entrusted. (Emphasis supplied).

As counsel for the insurance company succinctly puts it, “the facts of this case are undisputed. The main issue on appeal is whether the policy exclusion outlined above excludes the loss sustained by the [dealer]. The gist of this issue is whether an insured can ‘entrust’ property to a thief.”

The Fifth Circuit view is that the property was certainly entrusted to the thief in that it was voluntarily and freely handed over to him. David R. Balogh, Inc. v. Pennsylvania Millers Mutual Fire Insurance Company, 307 F.2d 894 (5th Cir. 1962). According to Balogh, “the test is the intent or state of mind of the person turning the item over to another, not the intent or state of mind of the person receiving the item.” Id. at 897. Applying this test, the Fifth Circuit concludes that the dealer intended to turn over the (in that case) emerald to the very person he gave it to: ergo, he entrusted it to a dishonest person and had no coverage under the policy.

By contrast the California Supreme Court’s view is there can be no valid en-trustment of property to another where the transfer of possession is acquired by means of some fraudulent device. To the California Court, “consent” to turn property over to another is more than the mere final act of voluntarily handing something over to the individual standing before the transfer- or. It is an act unclouded by fraud or duress. Freedman v. Queen Insurance Company of America, 56 Cal.2d 454, 15 Cal.Rptr. 69, 364 P.2d 245 (Cal.1961).

We prefer this latter view and adopt it. Indeed we can even reach it using the Fifth Circuit test. To us, the intent or state of mind of the dealer in the case now before us was to entrust the fork lift to his customer’s agent. It was never his state of mind to entrust the property to a thief or an imposter. It is quite true that the dealer voluntarily consented to hand over the fork lift to “Ronald,” who under the policy would qualify as “any person.” However he did so in the belief that “Ronald” was his customer’s agent, not a thief. In sum, the entrustment was not to any person, it was to his supposed customer.

To accept the insurance company’s argument is to agree that this policy language is written to expressly exclude larceny by trick. As the California Court said, and we agree, if that is what was intended by the exclusion, then the policy should unequivocally say so instead of employing ambiguous language. The insurance company contends that the language is not ambiguous, but we cannot agree and offer as proof of that pudding the fact that the Supreme Court of California and the Fifth Circuit in New Orleans have arrived at opposite conclusions from a study of essentially the same language. It is well settled that ambiguity in an insurance contract is construed in favor of the insured and exclusionary language against the insurer. Prudential Insurance Company of America v. Bellar, 391 So.2d 737 (Fla. 4th DCA 1980).

Finally, we are of the view that the result is controlled by Collins v. Royal Globe Insurance Company, 368 So.2d 941 (Fla. 4th DCA 1979). In Royal Globe the thief tricked the owner of a motor home into parting with his possession and the insurance company denied coverage because the policy excluded the dishonest acts of those in “lawful possession.” The policy language in the case now before us is not identical and here we deal with those “to whom the property may be entrusted” instead of those persons to whom the possession of the property is “lawfully” given away. However, we find the distinction to be one without a difference. As Judge Anstead, speaking for the Court, put it in Royal Globe,

To most persons, a thief is a thief. And whether the thief elects to act by stealth in the night or by trick in the daylight makes little difference to the owner who suffers a loss of his property and seeks recovery on an insurance contract he purchased for just such an eventuality. If certain classes of thieves or types of theft are not to be covered by the theft insurance, the insurer must specifically exclude such losses in language that clearly defines the risks not to be covered. A thief acquires no lawful possession and if he was a thief from the start then his possession was unlawful from the start.

We find no merit in the other point on appeal.

AFFIRMED.

DOWNEY, J., concurs specially with opinion.

MOORE, J., dissents with opinion.

DOWNEY, Judge,

concurring specially:

Were this a case of first impression in Florida, I would opt to reverse the judgment appealed from on the authority of David R. Balogb, Inc. v. Pennsylvania Millers Mutual Fire Insurance Company, 307 F.2d 894 (5th Cir. 1962). However, I feel constrained to concur in the conclusion reached by Judge Letts because I believe the decision in this case is controlled by Collins v. Royal Globe Insurance Company, 368 So.2d 941 (Fla. 4th DCA 1979).

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion the better reasoned result is that reached by the U. S. Fifth Circuit Court of Appeal in David R. Balogh, Inc. v. Pennsylvania Millers Mutual Fire Insurance Company, 307 F.2d 894 (5th Cir. 1962). I would adopt the reasoning in that case here and reverse.

      . In Florida, the particular criminal statute would appear to be Section 817.02 Florida Statutes (1979) which states in pertinent part:
      Whoever falsely personates or represents another, and in such assumed character receives any property intended to be delivered to the party so personated, with intent to convert the same to his own use, shall be punished as if he had been convicted of larceny.

      . The dealer also argues that “entrusted” does not necessarily include “delivery” which latter word appears in the Balogh and Freedman policy language, but not in the one before us now. Having here succeeded, he will hardly be disappointed, but for future reference, we disagree and accept the insurance company’s view that entrustment normally includes delivery.

      . They even disagreed as to whether the same language was ambiguous!


author: BERANEK, Judge. ANSTEAD, J.,

text:
    In re the ESTATE OF Grace ZALOUDEK, Deceased.
    No. 80-1848.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.

      Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant.
    Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee, Landmark First National Bank.
    John Russell, Fort Lauderdale, for appel-lee, Sauls.
   BERANEK, Judge.

The appellants, residuary legatees, appeal the dismissal with prejudice of their claim against the co-executors of the estate, Richard M. Sauls and Landmark First National Bank. Sauls was the guardian of Grace Zaloudek until her death on June 7, 1974. He and the bank were appointed co-executors of the estate on August 7,1974. Sauls’ discharge as guardian was approved by the probate division on February 19, 1975. More than a year later, the appellants filed a claim against the bank and Sauls, in his capacities as guardian and co-executor, alleging that Sauls, as guardian, had filed an erroneous accounting which should not have been accepted by the co-executors. The court dismissed the claim with leave to amend against the co-executors but specifically dismissed with prejudice any claim against Sauls as the guardian. The appellants amended their complaint to allege that the co-executors failed or refused to demand an accurate accounting from the guardian and wrongfully permitted him to be discharged. They then listed a series of items in the first estate inventory which they alleged were in error. This claim was dismissed with prejudice and the appellants appeal therefrom.

Section 746.14, Florida Statutes (1973), in existence at the time of the guardian’s discharge (now Section 744.531), provides:

“Upon the consideration of the application for discharge and of the objections thereto, if any, and of the evidence, if the Circuit Judge is satisfied that the guardian has faithfully and completely discharged his final returns and has delivered the assets of the ward to the person entitled thereto, the Circuit Judge shall enter an order of discharge. Such discharge shall operate as a release from the duties of the guardianship and as a bar to any suit against said guardian or his surety, unless such suit is commenced within one year from the date of the discharge.”

Suit was not commenced against the guardian within one year and the appellant should not now be allowed to circumvent the statute by claiming that the co-executors wrongfully allowed the guardian to be discharged. The co-executors cannot be held accountable for expenditures made before the death of the testatrix. We note there are no allegations that the bank and Sauls conspired in the acceptance of guardianship assets which were known to be understated. Further there are no allegations of fraud as to either defendant. Even though Sauls serves in dual capacities, his liability as a discharged guardian was not increased when he became an executor.

Certain allegations made concerning the sale of the decedent’s residence and the status of her checking account deal with acts which occurred prior to the decedent’s death. The court correctly dismissed these claims with prejudice as any objections to the guardian’s dealing with these assets should have been voiced within a year of discharge. However, the appellants also allege a discrepancy between the final accounting of guardianship and the inventory of the estate and a failure to account for interest on two savings accounts and for two corporate dividends. Assuming the dividends were paid after the decedent’s death, these allegations, if phrased properly, could constitute a valid cause of action against the co-executors. The trial court erred in dismissing these claims with prejudice. The appellants should be given the opportunity to amend their complaint to state a cause of action against the co-executors on these issues.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

MOORE, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, J.,

concurring specially:

I agree with the majority opinion. As noted therein the appellants did not allege fraud or conspiracy by the appellees. However, in my view, if such allegations had been made, or if it were alleged that the appellees had actual knowledge of the mistakes alleged to have been made by the guardian and willfully failed to take any action thereon, then I think a cause of action would be stated.


text:
    FORKEY & KIRSCH, P. A., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, State of Florida, and Paulette Rich, Appellees.
    No. 81-414.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.

      Neil G. Frank of Forkey, Frank & Horowitz, P. A., Fort Lauderdale, for appellant.
    James R. Parks and Donna Erlich, Tallahassee, for appellee, Unemployment Appeals Commission.
   PER CURIAM.

A former employer seeks review of an order of the Unemployment Appeals Commission (UAC) which reversed the decision of an unemployment compensation appeals referee. The appeals referee had found the former employee left her employment without good cause attributable to her employer and, therefore, was disqualified from receiving unemployment benefits. § 443.-06(1), Fla.Stat. (1979). In reversing the decision of the appeals referee, the UAC found that the record revealed that the claimant had good cause attributable to her employer to leave her employment. It is our conclusion that the UAC erred in reversing the findings of the appeals referee.

While the UAC has the authority, pursuant to Section 443.07(4)(c), Florida Statutes (1979), to “... reverse the findings and conclusions of the appeals referee,” it can do so only where there is no substantial competent evidence to support the referee’s determination. David Clark & Associates, Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980); Catholic Social Services v. State Department of Commerce, Board of Review, 365 So.2d 427 (Fla. 1st DCA 1978). The UAC cannot re weigh evidence or reverse a referee when his decision is based on substantial competent evidence. Citrus Central v. Detwiler, 368 So.2d 81 (Fla. 4th DCA 1979); Taylor v. State Dept. of Labor and Employment Security, 383 So.2d 1126 (Fla. 3d DCA 1980); McCray v. Dept. of Health and Rehabilitative Services, 384 So.2d 980 (Fla. 3d DCA 1980); David Clark & Associates, Inc. v. Kennedy, supra.

We find the decision of the appeals referee was supported by substantial competent evidence, and must be upheld. The decision of the Unemployment Appeals Commission is reversed and the cause is remanded with instructions to reinstate the referee’s decision.

REVERSED AND REMANDED.

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


text:
    STATE of Florida, ex rel., David BLUDWORTH, State Attorney for the Fifteenth Judicial Circuit, Petitioner, v. F. Patrick MacDUFFEE, Respondent.
    No. 81-1783.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Donald P. Kohl, Palm Springs, for respondent.
   PER CURIAM.

F. Patrick MacDuffee is a defendant in a certain civil litigation pending in the Circuit Court of the Fifteenth Judicial Circuit. Pursuant to a circuit court order compelling him to comply with a motion to produce, MacDuffee turned over certain records to counsel for the plaintiff in the civil suit. Counsel for the plaintiff voluntarily delivered those records to the State Attorney for the Fifteenth Judicial Circuit.

MacDuffee filed with the circuit court judge presiding over the civil litigation a motion seeking an order directing the State Attorney to return those records to him. The court entered an order complying with that request, and the State, on the relation of the State Attorney, has filed a petition for writ of certiorari asking this court to quash the circuit court’s order.

The records in question were used by the State Attorney in the prosecution of criminal litigation against MacDuffee. The criminal litigation has been terminated by entry of guilty pleas by MacDuffee. Mac-Duffee now seeks to regain possession of his records.

We see no ground presented which would support an order of quashal and therefore deny the petition for writ of certiorari. We note that the petitioner is free to copy all the records now in its possession before it returns them to respondent. In the event those records for some reason become unavailable in the future, such copies as petitioner has made would be admissible as evidence in a law suit under the best evidence rule.

PETITION DENIED.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


author: HUBBART, Chief Judge.

text:
    Zeinida MORALES, Oscar Blanco, Livio Blanco and Humberto Martinez, Appellants, v. The STATE of Florida, Appellee.
    Nos. 80-248, 80-249.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.

      Greene & Cooper and Sharon L. Wolfe, Carol King Guralnick, Miami, for appellants.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central question presented for review is whether a warrantless search of the hold of a person’s sea-going vessel and the subsequent seizure of marijuana contained therein conducted by U.S. Customs officials in the territorial waters of the United States [i.e., within the seas extending three nautical miles from the U.S. coastline], after the said vessel has recently entered such waters from the high seas [i.e., the seas outside the three mile limit from the U.S. coastline], constitutes an unreasonable search and seizure of the vessel in violation of the said person’s rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. We hold that such a warrantless search does not violate said person’s rights guaranteed by the above constitutional provisions as the subject search and seizure constitutes a reasonable border search; this result is not changed by the fact that U.S. Customs officials have: (a) no articulable suspicion that the occupants of the said vessel have been involved in criminal activity; and (b) no probable cause to believe that the said vessel contains contraband or other evidence of crime. We, accordingly, affirm the judgments and convictions under review by this appeal.

I

The facts pertinent to the above issue are as follows. On June 8, 1979, U.S. Customs officials received information from an unknown source that a vessel located in Bahamian waters along with two smaller vessels were about to bring a shipment of marijuana into the United States. A U.S. Customs air patrol plane was immediately dispatched to go to Orange Cay, south of Bimini, to look for the subject vessels. Upon the pilot’s arrival, three vessels were observed leaving the area, although the vessels did not match the descriptions previously given. The Customs pilot nonetheless followed these vessels by air from that point until the vessels reached a lighthouse point off Key Biscayne, Florida, well within three nautical miles of the Florida coastline.

Meanwhile, U.S. Customs officials located in nearby vessels off the Florida coast, were notified by the air patrol of the exact location of two of the surveyed vessels as they entered U.S. territorial waters. Both of these vessels were subsequently stopped, boarded and searched by U.S. Customs officials, together with Dade County Public Safety Department officers, in U.S. territorial waters near Miami, Florida. The first vessel was stopped and searched in Biscayne Bay, near the Rickenbacker Causeway by the Seaquarium. The second vessel was stopped and searched xk mile off Virginia Key, near Bear Cut. In each instance, U.S. Customs officials boarded the vessels, lifted up the hatch on the vessel and seized a large quantity of marijuana in the hold. The defendants Zeinida Morales and Oscar Blanco were on the first vessel, and the defendants Livio Blanco and Humberto Martinez were on the second vessel. They were all placed under arrest after the discovery of the subject marijuana.

The defendants were subsequently charged in a two-count information with: (1) possession of marijuana with intent to sell [§ 893.13(l)(a), Fla.Stat. (1979)]; and (2) trafficking in marijuana [§ 893.135, Fla. Stat. (1979)] in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court dismissed the second count of the information and the state has taken no appeal therefrom. The defendants filed timely pre-trial motions to suppress the above marijuana on unreasonable search and seizure grounds. No contention was made below by the state that the defendants lacked standing to bring these motions. The trial court heard and denied the motions after reviewing by stipulation the pre-discovery depositions taken in this case in which the above facts were revealed.

The defendants subsequently entered nolo contendere pleas to the crime of possession of marijuana with intent to sell, specifically reserving for review the denial of the motions to suppress. The defendants appeal; we have jurisdiction to entertain the appeal, and the authority to reach the issue preserved for review as the issue preserved is clearly dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979).

II

The Fourth Amendment to the United States Constitution, as made enforceable against the states through the due process clause of the Fourteenth Amendment, provides that: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ... ” Article I, Section 12 of the Florida Constitution contains a virtually identical provision.

Two requirements must necessarily be met before any person may successfully claim that his rights guaranteed by the above constitutional provisions have been violated. First, there must be a “search[] and seizure[ ]” • of that individual’s “person[], house[], papers” or “effects” conducted by an agent of the government; stated differently, there must be an official invasion of that individual’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Elson v. State, 337 So.2d 959, 963 (Fla.1976); State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980). Second, the search and seizure in question, must be “unreasonable,” as not all searches and seizures are proscribed by the above constitutional provisions, but only those which are “unreasonable,” Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Chacon v. State, 102 So.2d 578, 588 (Fla.1958); Brown v. State, 46 So.2d 479 (Fla.1950); stated differently, the official invasion of one’s reasonable expectation of privacy must be an “unreasonable” invasion.

Both the foregoing requirements are separate and distinct and both must be met before there can be any violation of an individual’s rights guaranteed by the above constitutional provisions. Rawlings v. Kentucky, 448 U.S. 98, 112, 100 S.Ct. 2556, 2565, 65 L.Ed.2d 633 (1980) (Blackmun, J., concurring). Moreover, any evidence secured in violation of either of the above constitutional provisions is inadmissible in evidence in a Florida court against the person whose search and seizure rights were violated. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927); Fla.Const. art. I, § 12.

Finally, it should be noted that the person who asserts his rights were violated under the above constitutional provisions— the defendant in a criminal case — has the burden of alleging and, if challenged, of establishing that the first Fourth Amendment requirement has been met, to wit: that there has been a governmental search and seizure of that individual’s person, house, papers or effects, or stated differently, that there has been an official invasion of that individual’s reasonable expectation of privacy. The same individual — the defendant — also has the burden of establishing the second Fourth Amendment requirement, to wit: that the search and seizure in question was unreasonable. Rakas v. Illinois, supra. The latter burden, however is satisfied upon proof, as here, that the search and seizure in question took place without a search warrant; the burden of proof thereafter shifts to the state to establish that an exception to the search warrant requirement was applicable in the subject case and that the search and seizure was, in fact, a reasonable one. Raffield v. State, 351 So.2d 945, 947 (Fla.1977); Andress v. State, 351 So.2d 350 (Fla. 4th DCA 1977); State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975); Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974); State v. Lyons, 293 So.2d 391, 393 (Fla. 2d DCA 1974); Mann v. State, 292 So.2d 432 (Fla. 2d DCA 1974).

A

Ordinarily, we would have no problem in concluding on this record that the defendants failed to establish the first Fourth Amendment requirement in this case. Although clearly a governmental search and seizure took place in this case, there is no showing that the search and seizure in question was directed against the defendants’ “person[], house[], papers” or “effects” as required by the Fourth Amendment and Article I, Section 12 of the Florida Constitution; stated differently, there is no showing that the defendants’ reasonable expectation of privacy was invaded by the governmental search and seizure in this case.

The sole showing of standing on this record is the defendants’ presence on the subject vessels wherein the search occurred and the subject marijuana was seized by U.S. Customs. No evidence was adduced that the defendants had a reasonable expectation of privacy in the vessel premises searched, particularly the hold, as for example, that they owned or leased the subject vessels or otherwise had an unrestricted right of occupancy or custody or control of said vessels; nor was any evidence adduced that the defendants had a reasonable expectation of privacy in the marijuana seized, as for example, that they actually or constructively possessed the subject marijuana, whether lawfully or unlawfully. Rakas v. Illinois, supra; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Annot., 78 A.L.R.2d 246, 248-49 (1961); Annot., 96 L.Ed. 66 (1952). Absent such a showing, the first Fourth Amendment requirement on standing was not established on this record.

We cannot, however, dispose of the case on that ground. The state did not challenge in the trial court the defendants’ standing to contest the subject search and seizure, and, accordingly, the defendants’ burden of proof on this issue was not triggered below, Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960); instead, the state challenges the defendants’ standing herein for the first time on appeal. Although the challenge does not come too late, we are precluded by law from deciding the issue in the state’s favor without first remanding the cause to the trial court for the purpose of developing a complete record on the standing issue— the theory being that the issue was not fully litigated below, absent a proper state challenge, and that the defendants may have standing evidence which they were lulled into not presenting below and could present upon remand. Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972); State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981); St. John v. State, 400 So.2d 779 (Fla. 1st DCA 1981); Coster v. State, 392 So.2d 16 (Fla. 3d DCA 1981).

It would seem, then, that we are left in this case with no alternative but to remand the cause to the trial court for the purpose of developing a complete record on the standing issue. Upon further reflection, however, we deem such a remand to be unnecessary given our ultimate conclusion that the search and seizure in question was, in any event, a reasonable one. We, therefore, decline to remand the cause for further proceedings, but will instead assume without deciding, for purposes of this appeal, that the defendants herein had standing to contest the instant search and seizure. We, accordingly, move on to a consideration of the second Fourth Amendment requirement in this case.

B

For the reasons which follow, we conclude that the second Fourth Amendment requirement discussed above was not met in this case. The search in question, although warrantless and thus presumptively unreasonable, falls within one of the exceptions to the search warrant requirement rule to wit: the border search exception. The search, therefore, cannot be condemned as unreasonable within the meaning of our federal or state constitutional provisions on search and seizure, and the motions to suppress, on that ground alone, were properly denied by the trial court.

1

The law is well-settled that a search and seizure conducted by state officials is presumptively unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution when conducted without a search warrant, subject only to certain specifically established and well-delineated exceptions justified by absolute necessity. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Pomerantz v. State, 372 So.2d 104,108 (Fla. 3d DCA 1979). The state has the burden of proving that such an exception applies in a given case. Norman v. State, supra; Taylor v. State, 355 So.2d 180,183 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla.1978).

One of the most time-honored exceptions to the search warrant requirement rule is the reasonable border search. The law is well-settled that U.S. Customs officials may conduct a routine, warrantless search of all travelers as they enter into the United States at the international border of this country or its functional equivalent. A routine border search may be made of the traveler’s person, suitcase, vehicle, vessel or other belongings as he or she enters with same into the territorial limits of this country. No showing of probable cause or reasonable suspicion to make the search is required to invoke this exception as the justification for the search rests, not on a prior evidentiary showing of wrongdoing, but on the undisputed right of a sovereign nation to control who and what may enter its territory. Only where the search at the border is not routine but is unduly intrusive — -such as body cavity search — is a showing of reasonable suspicion required to make such a search. Finally, to invoke the border search exception, there must be a showing that the traveler in question has recently crossed an international border of the United States. United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977); Carroll v. United States, 267 U.S. 132, 153-54,45 S.Ct. 280, 285-86, 69 L.Ed. 543 (1925), adopted in toto by § 933.19, Fla.Stat. (1979); Almeida-Sanchez v. United States, 413 U.S. 266, 272-75, 93 S.Ct. 2535, 2539-40, 37 L.Ed.2d 596 (1973); I.M. v. State, 400 So.2d 826 (Fla. 3d DCA 1981) and cases collected; State v. Smith, 399 So.2d 22 (Fla. 3d DCA 1981) and cases collected; 19 U.S.C. §§ 1581(a), 1582 (1980).

A traveler crosses the international border of the United States by vessel at sea when he crosses from the high seas into the United States territorial sea at a point three nautical miles from the U.S. coast; stated differently, the three mile limit, as thus defined, represents the international border of the United States for border search purposes. United States v. Hill, 430 F.2d 129, 131 (5th Cir. 1970). A border search of such a vessel, however, need not take place at the precise point of the three mile limit as it would be entirely impracticable, short of a full naval blockade of the coastline, to do so. It is, therefore, permissible for the U.S. Customs officials to conduct a border search of a vessel at any point within the United States territorial sea [i.e., within the three mile limit from the U.S. coastline] or within U.S. inland waters [i.e., the ports, harbors, bays, river mouths, and adjacent parts of the sea inside the U.S. coastline] — so long as, in each instance, there is a sufficient showing that the vessel in question has recently crossed the U.S. border, as thus defined, from the high seas. United States v. Guillen-Linares, 643 F.2d 1054, 1056 (5th Cir. 1981); United States v. D’Antignac, 628 F.2d 428, 433 n.7 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Serrano, 607 F.2d 1145 (5th Cir.), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980); United States v. Warren, 578 F.2d 1058, 1064 n.4 (5th Cir. 1978); United States v. Ingham, 502 F.2d 1287 (5th Cir. 1974); Earnest v. State, 293 So.2d 111 (Fla. 1st DCA 1974); Carmichael, “At Sea with the Fourth Amendment,” 32 U.Miami L.Rev. 51, 56-57 (1977).

2 .

In the instant case, we have no problem in concluding that a reasonable border search took place in this case. It is clear beyond dispute that the defendants, while aboard the subject vessels, crossed the three mile limit into the territorial waters of the United States from the high seas and thereby crossed this country’s international border. A U.S. Customs official followed the subject vessels by air from a point in the Caribbean sea near Bimini until the vessels crossed into the territorial waters of the United States three nautical miles off the Florida coast. Shortly thereafter, other U.S. Customs officials intercepted the subject vessels well within the three mile limit wherein a routine border search was conducted of the hold of each of the two subject vessels herein. It is true, as the defendants contend, that there was no probable cause or reasonable suspicion shown for the instant search, but, then, none was required under the established law for this admittedly routine border search.

In this connection, we think it worth mentioning that 19 U.S.C. § 1581(a) (1980), despite its broad language, does not authorize — contrary to the state’s contention — U.S. Customs officials to conduct random searches of all vessels found within U.S. customs waters [i.e., the seas within four leagues or 12 nautical miles of the U.S. coastline, 19 U.S.C. § 1401(j) (1981)] or found anywhere else in the United States. Indeed, the statute has been held “circumscribed by the reasonableness requirement of the Fourth Amendment,” United States v. D'Antignac, 628 F.2d 428, 432 (5th Cir. 1980), as “no Act of Congress can authorize a violation of the Constitution.” Almeida-Sanchez v. United States, 413 U.S. at 272, 93 S.Ct. at 2539. As such, it has been held that U.S. Customs officials are authorized by the above statute to stop and board any vessel within U.S. customs waters for the administrative purpose of making a routine vessel document check, but that any subsequent search of the vessel must be based on probable cause, valid consent, a border search or some other indicia of Fourth Amendment reasonableness. United States v. Freeman, 579 F.2d 942 (5th Cir. 1978); Earnest v. State, 293 So.2d 111 (Fla. 1st DCA 1974). The statute does not, and constitutionally cannot, authorize, without more, a general search of all vessels in U.S. customs waters or anywhere else in the United States. See Hill v. State, 238 So.2d 608 (Fla.1970). Indeed, it has been held that 19 U.S.C. § 1581(a) (1980), does not authorize U.S. Customs officials to stop and board a vessel for a vessel document check, much less authorize a search of the vessel, when the vessel is within the inland waters of the United States [i.e., the ports, harbors, bays, river mouths, and adjacent parts of the sea inside the U.S. coastline], and that such a vessel may only be stopped and boarded on a showing of articulable suspicion of criminal activity or a recent border crossing. United States v. Guillen-Linares, 643 F.2d 1054, 1056 (5th Cir. 1981); United States v. D’Antignac, 628 F.2d 428, 433 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Serrano, 607 F.2d 1145 at 1147-48 (5th Cir.), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980). In each instance, the courts have read the Fourth Amendment requirement of reasonableness into the statute and have never applied its literal terms as the state now urges us to do.

Moreover, such plenary search authority as asserted herein would, in our view, fly in the face of the historical purpose of the Fourth Amendment which was adopted to end the abuse of general exploratory searches of vessels and other private property by British customs officials in the American Colonies under the general writs of assistance regime — an abuse which was one of the primary causes of the American Revolution. See generally State v. Shaktman, 389 So.2d 1045, 1047-54 (Fla. 3d DCA 1980) (Hubbart, J., dissenting), and authorities collected. Indeed, it would be most ironic if U.S. Customs officials should somehow have plenary search authority over every vessel in the United States when this country fought a revolution, in part, over a similar assertion of power by British customs officials and later adopted a Fourth Amendment which was designed to end precisely such an abuse. As such, 19 U.S.C. § 1581(a) (1980), authorizes the vessel searches in the instant case, not because U.S. Customs officials have some kind of plenary search power over all vessels in U.S. Customs waters or anywhere else in the United States, but because the subject searches herein represent reasonable border searches within the meaning of the Fourth Amendment.

3

Finally, it should be noted that since the subject marijuana was lawfully seized by officers of the U.S. Customs pursuant to a reasonable border search, the evidence was clearly admissible in either the federal or the state courts. The fact that the federal officials in this case declined to prosecute the defendants in the federal courts and turned the evidence over “on a silver platter” to local police officials for use in a Florida state prosecution cannot change this result. See e. g., State v. Smith, 399 So.2d 22 (Fla. 3d DCA 1981).

Ill

For the above reasons, it is our view that the trial court was eminently correct in denying the motions to suppress in this case. The search and seizure conducted by U.S. Customs officials in this cause was a reasonable one within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. Such evidence was therefore admissible in a Florida state prosecution against the presumed victims of said search. The judgments of conviction and sentences under review, are, accordingly,

Affirmed.

      . Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

      . Article I, Section 12 of the Florida Constitution also contains a provision protecting the people against unreasonable electronic eavesdropping. This constitutional provision reads in relevant part as follows:
      “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated.”

      . “Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.” [emphasis added] Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, 702 (1960), quoted with approval in Alderman v. United States, 394 U.S. 165, 173, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969).
      “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.... The prosecutor’s argument [made in the trial court challenging the accused’s standing] gave petitioners notice that they were to be put to their proof on any issue as to which they had the burden.... ” Rakas v. Illinois, 439 U.S. 128, 130 n.1, 99 S.Ct. 421, 423 n.1, 58 L.Ed.2d 387 (1978).

      . “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. BLACKSTONE, COMMENTARIES, BOOK 1, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S.Ct. 421, 430 n.12, 58 L.Ed.2d 387 (1978).
      “[W]here the premises searched is the dwelling or is owned or rented by, or is in the possession of the accused, he has standing to attack the search. As employed in this connection we understand ‘possession’ to have reference to an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence on the premises as a mere guest or invitee.” State v. Leveson, 151 So.2d 283, 285 (Fla.1963).

      . It should be noted, parenthetically, that a defendant no longer has automatic standing to attack the search and seizure of evidence which he or she is criminally charged with possessing, but must demonstrate his or her standing to contest such a search on the same basis as any other defendant. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980). A defendant who lacks standing to contest the search and seizure of evidence which he or she is criminally charged with possessing, however, may be entitled to a judgment of acquittal at trial on the contraband criminal charge for failure of the state to prove that such defendant possessed the said contraband with requisite scienter. See e.g., Ramirez v. State, 386 So.2d 584 (Fla. 3d DCA), pet. for rev. denied, 392 So.2d 1379 (Fla.1980). The defendants in this cause have not raised such a claim upon this appeal and, indeed, effectively waived same by entering their nolo contendere pleas below.

      .We reject the defendants’ contrary contention as being unsupported by the existing case law. It is true, however, that if, unlike this case, the state had not challenged the defendants’ standing at either the trial or the appellate level — or had waited to raise the issue for the first time before the United States Supreme Court — it would have waived the standing issue for appellate review. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); United States v. Ramsey, 431 U.S. 606, 611 n.7, 97 S.Ct. 1972, 1976 n.7, 52 L.Ed.2d 617 (1977); United States v. Santana, 427 U.S. 38, 41 n.2, 96 S.Ct. 2406, 2409 n.2, 49 L.Ed.2d 300 (1976).

      . “Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.” 19 U.S.C. § 1581(a) (1980).

      . We reject the state’s reading of Freeman to grant plenary authority under § 1581(a) to Customs officials to conduct full-blown searches of vessels in U.S. customs waters. Although Freeman held that § 1581(a) enabled customs officials to stop and board such vessels, it authorized same for the limited administrative purpose of a vessel document inspection. Once on board the vessel in Freeman, the officials’ right to search was based on traditional exceptions to the Fourth Amendment search warrant requirement, to wit: the plain view sighting of hidden passengers, exigent circumstances, and probable cause. True, the court used some broad language in its opinion, but at no time held that § 1581(a) in and of itself authorized the searches of the vessels involved in that case.


text:
    Philip MARKS, Appellant, v. WATER-BOGGAN INTERNATIONAL, INC., et al., Appellees.
    No. 80-2106.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Bartel & Shuford, Robert Sweetapple, Miami, for appellant.
    No appearance for appellees.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal by plaintiff from a final order of dismissal pursuant to Florida Rule of Civil Procedure 1.420(e).

It is appellant’s contention that the trial court erred in dismissing his cause since the notice of hearing on the motion for order of dismissal bore the incorrect caption “Jay Marschall and Marilyn Marschall, his wife v. Water-Boggan International, Inc. Case No. 77-30058”, and not the name of the plaintiff in this cause.

It appears from the record that the court erred in dismissing plaintiff’s cause of action. The notice was not addressed to the plaintiff, although it bore the number of the case which plaintiff had pending against defendants. The notice bore an incorrect caption which was in no way similar to the name of plaintiff.

Reversed and remanded for further proceedings.


author: DANIEL S. PEARSON, Judge.

text:
    MIAMI PURVEYORS, INC., Appellant, v. John FORTE, Appellee. BRICKELL BAY CLUB, INC., Biscayne Bay Club, Inc., and John Forte, Appellants, v. MIAMI PURVEYORS, INC., Appellee.
    Nos. 81-153, 81-619.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.

      Hall & Hauser and Andrew C. Hall, Miami, for Brickell Bay and Forte.
    Joseph Pardo and Jeffrey J. Pardo, Miami, for Miami Purveyors.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

These consolidated appeals are from a final judgment in favor of Miami Purveyors, Inc. (Purveyors) against Biscayne Bay Club, Inc., and an order dismissing with prejudice Purveyors’ action against Forte at the close of the plaintiff’s case in a non jury trial.

We reverse the final judgment against Biscayne Bay Club, Inc., because, as is candidly admitted by Purveyors, there was no evidence introduced to support this judgment, which was entered by the trial court under the erroneous belief that Biscayne Bay Club, Inc. had admitted liability.

We reverse the order of involuntary dismissal entered in favor of the defendant Forte on a holding that (1) the evidence presented by Purveyors in its case in chief, viewed most favorably to it, prima facie established that Forte orally agreed he would be primarily liable for the payment of Purveyors’ bills for goods thereafter received and accepted by Brickell Bay Club, precluding at that stage of the non-jury proceedings (a) a finding that Forte’s agreement was unenforceable under either Section 672.201 or Section 725.01, Florida Statutes (1977), because not in writing, Bruce Construction Corporation v. The State Exchange Bank, 102 So.2d 288 (Fla.1958); Jim & Slim’s Tool Supply, Inc. v. Metro Communities Corporation, 328 So.2d 213 (Fla. 2d DCA 1976); Johnson v. Barnett Bank of Cocoa, N. A., 320 So.2d 851 (Fla. 4th DCA 1975); Polera v. General Window Corporation, 132 So.2d 778 (Fla. 2d DCA 1961), and (b) an involuntary dismissal, Tillman v. Baskin, 260 So.2d 509 (Fla.1972); North American Marketing Corporation, Inc. v. The Travelers Insurance Company, 405 So.2d 1019 (Fla. 3d DCA 1981); accord, Sea Tower Apartments, Inc. v. Century National Bank, 406 So.2d 69 (Fla. 4th DCA 1981); and (2) this error is not, as Forte urges, rendered harmless by the fact that the defendant Forte testified as an adverse witness in Purveyors’ case in chief, or the fact that Forte would likely have rested his case without calling any witnesses, since to apply a harmless error test to the absolute rule laid down in Tillman v. Baskin, supra, that a trial judge cannot weigh evidence when ruling on a defendant’s Florida Rule of Civil Procedure 1.420(b) motion, would effectively abrogate the rule.

Accordingly, we reverse the judgment entered against Biscayne Bay Club, Inc. and the involuntary dismissal of John Forte and remand for a new trial against both defendants.

Reversed and remanded with directions.

      . A judgment was also entered against F. U. R., Inc., d/b/a The Brickell Bay Club, Inc. It appears that F. U. R., Inc. was never served in the action below, but no appeal has been taken from this judgment.


text:
    Joshua Webster GREEN and Naomia Green, his wife, Appellants. v. GREEN’S BAPTIST TEMPLE, INC., a Florida non-profit corporation, Appellee.
    No. 81-293.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Koppen & Watkins and Alan S. Walters, Miami, for appellants.
    No appearance for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ. and OWEN, WILLIAM G, Jr. (Ret.), Associate Judge.
   PER CURIAM.

We reverse the final judgment under review and remand the cause for a trial at which the parties are to be afforded a full and fair opportunity to be heard and present evidence. Fickle v. Adkins, 394 So.2d 461 (Fla. 3d DCA 1981); Christiansen v. Christiansen, 354 So.2d 1254 (Fla. 4th DCA 1978); Pelle v. Diners Club, 287 So.2d 737 (Fla. 3d DCA 1974).

Reversed and remanded.


author: BASKIN, Judge.

text:
    James D. HOLSTON and Mary Holston, his wife, Appellants, v. Alberto BERNAL and Susana C. Bernal, his wife, Appellees.
    Nos. 81-314, 81-836.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.

      M. S. Marlin and Gary R. Marlin, Coral Gables, for appellants.
    Diaz-Asper, Chulock, Chulock & Gutierrez and Gustavo Gutierrez, Miami, for appel-lees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

We affirm the final judgment ordering specific performance of a contract which provided for the sale to appellees of property owned by appellants. We find no error in the trial court’s ruling that appellees had complied with their contractual obligations by delivering the required additional deposit. Appellees were prevented by appellants from performing their remaining obligation, and appellants may not now be heard to complain. Waters v. Key Colony East, Inc., 345 So.2d 367 (Fla. 3d DCA), cert. dismissed, 348 So.2d 949 (Fla.1977); see generally Paul v. Hurley, 315 So.2d 536 (Fla. 4th DCA 1975).

With regard to the consolidated appeal, we find no abuse of discretion in the trial court’s award of attorney’s fees which were within the range suggested in affidavits of members of the Bar.

Affirmed.


text:
    E. L. K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-374.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Sealey v. State, 379 So.2d 430 (Fla. 2d DCA 1980); Tobler v. State, 350 So.2d 555 (Fla. 1st DCA 1977), cert. denied, 371 So.2d 1043 (Fla.1979); DeGeorge v. State, 358 So.2d 217 (Fla. 4th DCA 1978); Greer v. State, 354 So.2d 952 (Fla. 3d DCA 1978).


text:
    W. Ed HERDER, Appellant, v. Florence CLAFFEY, Appellee.
    No. 81-473.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.

      Edmond W. Frank and David Friedman, Miami, for appellant.
    Marc Hauser, Bay Harbor, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

The trial court dismissed with prejudice a real estate broker’s action to obtain a commission for a property sale in accordance with the terms of an agreement between the parties. The trial court’s order of dismissal stated that a prior county court action in which the broker unsuccessfully sought to recover a commission for managing the same property precluded the later action under the doctrine of res judicata.

Because the record fails to disclose an identity of the causes of action, we reverse. Cole v. First Development Corporation of America, 339 So.2d 1130 (Fla. 2d DCA 1976).

Reversed and remanded for further proceedings.


text:
    Felix MELIAN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2470.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Feb. 1, 1982.
    Felix Melian, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his amended motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of this motion is affirmed.


text:
    Charles Edward McBRIDE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2525.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Charles Edward McBride, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: FERGUSON, Judge.

text:
    DUDLEY SPORTS COMPANY, Aphlone Industries, Inc. and Home Insurance Company, Appellants, v. Sandra BERRY and Robert Berry, et al., Appellees.
    No. 80-995.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.

      Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Jeanne Heyward, George & Thompson, Miami, Amy Shield Levine, Boca Raton, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLemore, Tal-burt, Kubicki & Bradley, Herskowitz & Grossman, Wicker, Smith, Blomquist, Da-vant, McMath, Tutan & O’Hara, Lane, Mitchell & Harris, Anderson & Moss, Morgan, Lewis & Bockius, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   ON MOTION TO DISMISS

FERGUSON, Judge.

The issue on this appeal is whether a good faith settlement between a minor-plaintiff and his parents bars a third-party claim brought by defendants against the parents alleging negligent supervision as a contributing cause of the minor’s injuries. We hold that it does and dismiss the appeal from the order dismissing the third-party claim.

The minor plaintiff, Kenneth Berry, was permanently injured when he was unexpectedly struck in the head by the arm of a baseball pitching machine. Unknown to the minor-plaintiff, the machine was capable of firing though not in use and not connected to a power source. The minor-plaintiff by his parents commenced this products liability case against the defendants, all of whom were involved in either manufacture or distribution of the machine.

While the action was pending, two of the defendants filed a claim for contribution against the parents of the minor-plaintiff. The trial court dismissed the claim for contribution from which an appeal was taken.

While the appeal was pending this court issued an opinion in Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1981) holding that an action for contribution may be maintained against the parent of an injured minor child-plaintiff notwithstanding the child’s inability to sue the parent directly even when the parent’s liability involves negligent supervision of the child.

Soon after this court’s opinion in Quest, the First District Court of Appeal in Ard v. Ard, 395 So.2d 586 (Fla. 1st DCA 1981) ruled that an unemancipated minor child may maintain a negligence action against his parent. Both Quest and Ard were certified to the supreme court.

On May 27, 1981 this court relinquished jurisdiction of the case to the trial court for the purpose of permitting a review and approval of a settlement of all potential claims between the minor and his parents. Thereafter the trial court approved what it found to be a good faith settlement between the minor and his parents to the limits of a $50,000.00 policy. The case is before this court on the parents’ motion to dismiss the appeal from the order dismissing the claim for contribution.

It is undisputed, that pursuant to Sections 768;31(5)(a) and (b), Florida Statutes (1979), Uniform Contribution Among Tortfeasors Act, a good faith settlement (1) discharges the tortfeasor to whom it is given and (2) does not necessarily discharge any of the other tortfeasors from liability but reduces the claim against the others to the extent of any amounts stipulated by the release. Appellants agree that if the supreme court holds that parents can be liable as joint tortfeasors within the meaning of the statute then the settlement renders moot this appeal. Their argument is that this appeal should not be dismissed but stayed pending a decision by the supreme court in Quest and Ard because if it is held that parents are not persons “jointly or severally liable in tort” for the same injury, then Section 768.31 does not apply, the appellants are entitled to contribution, and the settlement is immaterial.

Appellees contend that a determination of the issue raised by this motion to dismiss is not dependent on the outcome of Quest and Ard; if the supreme court holds that parents are not liable in tort, no right to contribution ever arose.

By filing a third-party complaint for contribution, appellants necessarily contend that if they are liable then the parents are joint tortfeasors. In opposing the dismissal of the third-party complaint, they now argue that the parents are not persons who can be joint tortfeasors within the meaning of the statute. The two positions are facial contradictions. Appellants cite no authority for the suggestion that parents as joint tortfeasors may be exempt from Section 768.31. Nor do we perceive of any policy reason for precluding a parent tortfeasor from perfecting a good faith settlement of potential liability.

There is no need to further stay this appeal from the order dismissing the third-party complaint for contribution. Resolution by the supreme court of the certified questions in Quest and Ard will have no effect on the issue raised herein. If the parents are not persons who may be jointly or severally liable in tort for injuries to their children, then the settlement was for a non-existent liability. If the parents are persons who may be jointly liable in tort for injuries to their minor children then the statute applies and the settlement discharges the parents from all liability for contribution to other tortfeasors. We cite with approval the analysis and result in Fuquay v. General Motors Corp., 518 F.Supp. 1065 (M.D.Fla.1981) dismissing a claim for contribution where husband settled with his wife even though wife, because of inter-spousal immunity doctrine, could not have sued husband directly.

Appeal dismissed.


text:
    Joseph D. FARISH, Jr., and Joseph D. Farish, Jr., as Administrator of the Estate of Joseph D. Farish, Deceased, d/b/a Farish & Farish, a Partnership; Rosemary Barkett, Ken Slinkman, Hubert R. Lindsey, and Earl L. Maxwell, Jr., Appellants, v. Elmer HOLMGREN, Bankers Multiple Line Insurance Company and Bankers Life & Casualty Company, Appellees.
    No. 80-1004.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Edna L. Caruso, West Palm Beach, for appellants.
    Louis R. McBane of O’Connell & Cooper, P. A., West Palm Beach, for appellee-Elmer Holmgren.
    Larry Klein, West Palm Beach, for appel-lees-Bankers Multiple Life Ins. Co. and Bankers Life & Cas. Co.
   PER CURIAM.

Affirmed. Kessler v. Townsley, 132 Fla. 744, 182 So. 232 (1938); Catlett v. Chestnut, 108 Fla. 475, 146 So. 547 (1933); Lee v. State Farm Mutual Automobile Ins. Co., 303 So.2d 349 (Fla.3d DCA 1974); 70 C.J.S. Perjury § 92 (1951).

AFFIRMED.

GLICKSTEIN and DELL, JJ, and SCHWARTZ, ALAN R., Associate Judge, concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Marjorie Ann POULSEN, Appellant, v. FIRST NATIONAL BANK OF PALM BEACH and Virginia Buss, Personal Representative of Woodrow H. Buss, Deceased, and Cambridge Mutual Fire Insurance Company, Appellees.
    No. 80-1184.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Wade Byrd of Stewart, Van der Hulse, Call, Byrd & Rozelle, Palm Beach, and Larry Klein, West Palm Beach, for appellant.
    James G. Pressly, Jr., of Gunster, Yoak-ley, Criser & Stewart, P.A., Palm Beach, for appellees-First Nat. Bank of Palm Beach and Virginia Buss.
    Paxton, Crow, Taplin & Bragg and Edna L. Caruso, West Palm Beach, for appellee-Cambridge Mut. Fire Ins. Co.
   GREEN, OLIVER L., Jr., Associate Judge.

Presented here is the issue of whether, after service of an objection to a timely filed claim against an estate, an independent action was filed within the time limitations of Section 733.705(3), Florida Statutes (1979).

Charles I. Poulsen, Jr., and Woodrow H. Buss were on a hunting trip in Wyoming in November, 1977, when Mr. Poulsen was killed, allegedly as a result of the negligence of Mr. Buss. Some time later, Mr. Buss, a resident of Palm Beach County, died from unrelated causes. Probate of his estate was commenced, with the First National Bank in Palm Breach and Virginia Buss as personal representatives of his estate. Mrs. Poulsen, as personal representative of her deceased husband’s estate, timely filed a claim against the Buss estate, to which an objection was filed on July 30, 1979. Within thirty days thereafter, Mrs. Poulsen, in her representative capacity, filed a wrongful death action in the state court of Wyoming, naming as defendants the personal representatives of the Buss estate. When it became apparent that the First National Bank in Palm Beach would assert its venue privilege under 12 U.S.C. § 94, but before the Wyoming suit was dismissed on that basis, Mrs. Poulsen filed the present wrongful death action in the civil division of the circuit court of Palm Beach County. At the same time, she filed a petition in the Buss estate which, after hearing, resulted in the judge of the probate division entering the following order, dated November 6, 1979:

This matter came on for hearing upon the Petition filed by MARJORIE ANN POULSEN, as Personal Representative of the Estate of Charles I. Poulsen, Jr., Deceased, for the approval of the filing of an independent action for relief under Florida Statute 733.705(3), and the Court having heard argument of counsel, and being otherwise advised in the premises, it is
ORDERED AND ADJUDGED that the filing of the independent action by MARJORIE ANN POULSEN, Personal Representative of Charles I. Poulsen, Jr., Deceased, Plaintiff, vs. FIRST NATIONAL BANK IN PALM BEACH, and VIRGINIA BUSS, Personal Representatives of Woodrow H. Buss, Deceased, and CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Defendants, on October 31, 1979 in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, being Case No. 79-811 CP 06, be and the same is hereby approved and allowed for the reason that an appropriate independent action was timely filed by claimant in the State of Wyoming where it is now pending and the filing of the independent action in Florida is proper to protect claimant’s position against operation of the Florida statute of limitation in the event the action in Wyoming is finally dismissed on the basis of venue under 12 United States Code 94.

As anticipated by the parties, in January, 1980, the Wyoming court, acting on the bank’s motion under the national bank venue statute, dismissed the Wyoming wrongful death action. Subsequently, on defendants’ motion, the Circuit Court of Palm Beach County, Civil Division, dismissed with prejudice appellant’s wrongful death suit pending there on the basis of Section 733.705(3), Florida Statutes (1979), that suit having been filed more than 30 days after objection to Mrs. Poulsen’s claim.

In their respective briefs the parties disagree as to the nature and purpose of the order entered by the probate division under date of November 6, 1979. Appellant argues that the probate order was an extension of time within which to file suit for good cause shown, citing authority for the proposition that the power to extend beyond 30 days the time for filing suit vests in the probate division, rather than the civil division, Ponder v. State, Department of Health and Rehab. Serv., 284 So.2d 463 (Fla. 3d DCA 1973), and that the discretion to extend the time may be exercised even after the 30 day period had expired, In re Kemp’s Estate, 177 So.2d 757 (Fla. 1st DCA 1965). Appellees, on the other hand, while apparently conceding that if, indeed, the probate division order had been the grant of an extension of time within which to file an independent action, the dismissal of the wrongful death action would have been error, nonetheless argue that the probate order was not an extension of time to file suit for good cause shown. Rather (appellees say) it was simply an advisory opinion of the probate division judge that the filing of the wrongful death action in Wyoming satisfied the 30 day requirement of the first sentence of Section 733.705(3). Alternatively, appellees argue that the probate court order was an advisory opinion that the filing of the wrongful death action in Florida protected plaintiff’s position with respect to the Florida wrongful death statute of limitations, or was an advisory opinion that the Florida wrongful death action was properly filed in the civil division instead of the probate division.

On the basis of the record in this case we conclude that appellant’s version is by far the more logical and the one which we would adopt were it necessary for us to determine the nature or intent of the probate division order of November 6, 1979. However, our decision does not require that we make that determination. We hold that the filing of the independent action in Wyoming within 30 days after objection filed to the claim, was a timely filing within the first sentence of Section 733.705(3). S. J. Landau Corp. v. Estate of Riesner, 372 So.2d 1134 (Fla. 2d DCA 1979).

We have no difficulty in so holding. Had the personal representative of the Buss estate. been any entity other than a national bank entitled to claim the venue privilege of 12 U.S.C. § 94, or had the First National Bank in Palm Beach waived its venue privilege or consented to be sued in the Wyoming state court, no one would question the timeliness of the action. Had the independent action been filed in the Federal District Court of Wyoming rather than the state court, upon the First National Bank in Palm Beach asserting its venue privilege the action likely would have been transferred to the Federal District Court for the Southern District of Florida rather than being dismissed. The mere fortuitous happening that one of the personal representatives of the defendant estate should be a national bank with its principal offices in Palm Beach County, Florida, ought not, standing alone, prevent the timely filed action in the Wyoming state court from being a full and adequate compliance with the time limitations of Section 733.705(3).

While we are not unmindful of the appel-lees’ argument that the entire structure for orderly and expeditious processing of claims could be destroyed by permitting the filing of an independent action in another jurisdiction, we are not persuaded. Nothing in the statute requires that the independent action be filed in the geographical limits of the State of Florida. Certainly, there is no reason to view this case and our holding here as a weakening of the orderly and expeditious processing of claims against an estate where, as here, the “claim” was processed by the prompt and timely filing of an independent action in Wyoming which, but for the national bank’s claim of its venue privilege, presumably would have proceeded to a prompt disposition. Even the refiling of the case in Palm Beach County was within approximately two months of the time within which the independent action was required to have been initially filed, so that there is no discernable prejudice to defendants, nor an unreasonable delay in the orderly and expeditious processing of the claim.

The order dismissing the complaint with prejudice is reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

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

      . The relevant portion of the statute provides:
      (3) The claimant shall be limited to 30 days from the date of service of an objection within which to bring an independent action upon the claim. For good cause, the court may extend the time for filing an objection to any •claim or the time for serving the objection, and may likewise extend the time for filing an action or proceeding after an objection is filed.... No action or proceeding shall be brought against the personal representative after the time limited above.

      . Because this case was decided by the trial court on appellees’ “speaking motion” to dismiss, the record béfore us does not disclose that the independent action initially filed in Wyoming was, in fact, filed within 30 days of the objection to the claim. However, all parties concede in their respective briefs that this is a fact.