text:
    AURORA ENTERPRISES, INC., a Florida Corporation, d/b/a Glader Park, Petitioner, v. The STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, Director, Respondent.
    No. 81-305.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Manners, Amoon, Whatley & Tucker and Dorian K. Damoorgian and Henry A. Amoon, Miami, for petitioner,
    Dennis LaRosa and David M. Maloney, Tallahassee, for respondent.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The petitioner seeks review of a non-final emergency order of the Division of Alcoholic Beverages and Tobacco which suspended its liquor license because of numerous alleged narcotics violations, including some committed by the principal of the corporate licensee, which had occurred on the licensed premises. The order was entered, without a prior hearing, under Sec. 120.60(7), Fla.Stat. (1979), which provides:

(7) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspension, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon.

We pretermit extended discussion of the other issues raised by the petitioner because of what we find to be the division’s failure to afford the petitioner the procedural due process necessary to sustain the continued enforceability of the order.' It is an established constitutional principle that whenever a governmental entity exercises its authority to take disciplinary action against a protected right or interest, such as the license involved in this case, Keating v. State, 173 So.2d 673 (Fla.1965), without affording an opportunity to be heard before that action, it must do so, as Sec. 120.60(7) itself provides, promptly thereafter. In the recent and leading case of Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), the Supreme Court considered the due process procedural safeguards required subsequent to the entry of the emergency suspension of a horse trainer’s license by New York racing authorities. After holding that such a suspension without prior hearing was permissible, the court went on to say:

That the State’s presuspension procedures were satisfactory, however, still leaves unresolved how and when the adequacy of the grounds for suspension is ultimately to be determined. As the District Court found, the consequences to a trainer of even a temporary suspension can be severe; and we have held that the opportunity to be heard must be ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).[] Here, the provision for an administrative hearing, neither on its face nor as applied in this case, assured a prompt proceeding and prompt disposition of the outstanding issues between Barchi and the State. Indeed, insofar as the statutory requirements are concerned, it is as likely as not that Barchi and others subject to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Yet, it is possible that Barchi’s horse may not have been drugged and Barchi may not have been at fault at all. Once suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or no state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing. On the contrary, it would seem as much in the State’s interest as Barchi’s to have an early and reliable determination with respect to the integrity of those participating in state-supervised horse racing.
In these circumstances, it was necessary that Barchi be assured a prompt postsuspension hearing, one that would proceed and be concluded without appre-dable delay. Because the statute as applied in this case was deficient in this respect, Barchi’s suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment. [e.s.] 443 U.S. at 66, 99 S.Ct. at 2650, 61 L.Ed.2d at 376.

This determination is directly applicable to and controls this case.

The emergency order under review was entered on January 29,1981. The present petition was heard on the merits before us on March 10, 1981. At that time we were informed by both sides that, although a formal revocation proceeding had been commenced within twenty days as specified by Fla.Admin.Code Rule 28-6.-11(3), no hearing (let alone a disposition) has yet taken place or even been scheduled,* although one had been immediately requested by the licensee. In no sense can it be said that a period of this length — involving a fifty day minimum and an open-ended maximum between the emergency suspension and a hearing and determination of the merits — involves either the prompt action the statute requires or the conclusion “without appreciable delay” the constitution demands. Barry v. Barchi, supra; see, West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla.3d DCA 1979); see also, Johnkol, Inc, v. License Appeal Commission of Chicago, 42 Ill.2d 377, 247 N.E.2d 901 (1969), Ingram v. License Appeal Commission of Chicago, 131 Ill.App.2d 218, 268 N.E.2d 469 (1971); compare, New Safari Lounge, Inc. v. City of Colorado Springs, 193 Colo. 428, 567 P.2d 372 (1977) (emergency liquor license suspension constitutionally effected when hearing set for nine days thereafter and licensee rejected opportunity for even earlier date). Since it is therefore clear that it may be given no present or future efficacy, we quash the emergency order of suspension under review.

Petition for review granted.

      . Pursuant to Sec. 120.68(1), Fla.Stat. (1979), and Fla.R.App.P.9.100.

      . The unlawful activity had purportedly been observed by undercover beverage agents.

      . We may say, however, that there is no discernible merit in the petitioner’s various claims (a) that Sec. 561.29(6), Fla.Stat. (1979), which purportedly delays the effectiveness of an order of license suspension for 15 days to permit the filing of an application for review “to the Department of Business Regulation,” is applicable to this case; see Sec. 20.16, Fla.Stat. (1979), as amended by Ch. 78-131, Laws of Florida, eliminating appellate jurisdiction of department provided by Sec. 20.16(3), Fla.Stat. (1977); Tauber v. State Board of Osteopathic Medical Examiners, 362 So.2d 90 (Fla.4th DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979) (similar statutory provision inapplicable to emergency suspension); (b) that a pre-suspension hearing is constitutionally or statutorily required, Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Lerro v. Department of Professional Regulation, 388 So.2d 47 (Fla.2d DCA 1980); West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla.3d DCA 1979) and cases cited; City of Ft. Lauderdale v. Campbell, 362 So.2d 716 (Fla.4th DCA 1978); and (c) that the findings recited in the order are neither sufficiently articulated nor justify the emergency suspension. Lerro v. Department of Professional Regulation, supra; Saviak v. Gunter, 375 So.2d 1080 (Fla.1st DCA 1979); compare, Commercial Consultants Corp. v. Department of Business Regulation, 363 So.2d 1162 (Fla.1st DCA 1978).

      . We quoted and applied the same language in West v. Board of County Commissioners, Monroe County, supra.

      . (3) Unless otherwise provided by law, within twenty (20) days after emergency action taken pursuant to subsection (1), the Agency shall initiate a formal suspension or revocation proceeding in compliance with §§ 120.60 and 120.57, F.S,

      . It appears that the reason for this delay is that the case has been placed in the normal channels of the Division of Administrative Hearings for scheduling, trial, and disposition. Obviously, such ordinary processing will not do to meet the extraordinary demands of expeditious handling which are required to validate an emergency suspension without prior opportunity to be heard.

      . We think that our consideration of the effect of these stipulated facts in the light of the established law represents an appropriate application of an exception to the general rule that courts may not consider events after the order under review which were not before the lower tribunal. A court may depart from this principle when “by so doing, it can shorten litigation and best subserve the ends of justice.” 5B C.J.S. Appeal & Error § 1842 (1958); Southern Brewing Co. v. May, 122 Fla. 782, 165 So. 909 (1936); see, Storch v. Allgood, 184 So.2d 170 (Fla.1966) (mootness); 5 Am.Jur.2d Appeal and Error § 728 (1962), and cases cited at n.18.

      . Plainly, no hard and fast rule may be laid down as to the precise period which constitutes a “meaningful time” for a post-suspension hearing. The length of the delay permitted must vary with, among other things, the interest to be protected and the availability of remedies to redress any harm caused by the passage of time. See, Gernstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Thus, as we noted in the West case, supra, at 373 So.2d 87, a three-month delay after the dismissal of an employee was deemed constitutionally tolerable in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); in such a situation, however, the employee would be made entirely whole by reinstatement and back pay after the hearing had finally taken place. Cf., however, West v. Board of County Commissioners, supra (14 month delay while employee “in limbo” impermissible.) In a case such as this, in contrast, the closing of a licensee may result in a loss of reputation and would certainly cause a loss of income for neither of which the state would be liable even if it were shown at an adversary hearing that its previous action was unjustified. We therefore have no difficulty in concluding that the delay in this case went far beyond constitutional boundaries. See, New Safari Lounge, Inc. v. City of Colorado Springs, supra.
      The division cites Lerro v. Department of Professional Regulation, supra, for a contrary conclusion. We observe that the court in that case seems not to have been directly presented with the post-suspension delay contention we deem decisive in this one. If, however, note 2 at 388 So .2d 48 is to be taken as an approval of a three-month gap between a professional license suspension and a hearing, we disagree.

      .Because of our holding that a constitutionally-required timely disposition of the proceeding has not in fact been afforded the petitioner and thus that the actual procedure involved denied it due process, we need not determine the facial constitutional sufficiency of that portion of Sec. 120.60(7) which requires the “prompt” institution of and action upon a formal proceeding, but does not provide specific time limitations or the procedural apparatus through which these constitutional imperatives may be assured. See, Barry v. Barchi, supra; compare 12-47-120(2), Colorado Revised Státutes 1973, which limits the effect of an emergency suspension to fifteen days. Nor do we consider whether, as applied, the institution of the proceeding within 20 days under Rule 28-6.11(3), see note 5, supra, or even the rule itself passes constitutional muster. Cf., New Safari Lounge, Inc. v. City of Colorado Springs, 193 Colo. 428, 567 P.2d 372 (1977) (provision for immediate notice and hearing as soon as possible within fifteen days thereafter facially valid:)

      . Although many petitions for review of emergency license suspension orders, entered by this agency and others, have been filed in this court, we have never before been required to consider the parameters of the due process requirement of a prompt subsequent hearing. This was largely because in most prior cases we have entered a stay pending review, as required by Sec. 120.68(3) in the absence of a determination “upon petition of the agency ... that a supersedeas would constitute a probable danger to the health, safety or welfare of the state.” These stays effectively suspended the orders until the final hearing and thus mooted the question of when the hearing had to occur. The issue became crucial, however, in the present case when, because of the rather egregious facts allegedly involved, we denied super-sedeas. Because of that denial, the briefing and argument schedule was accelerated. Immediately upon learning at oral argument that the hearing had not yet taken place, the previous order denying supersedeas was vacated and a stay was ordered pending this opinion.

      . This action is totally without prejudice to the revocation proceeding now, however glacially, under way.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elton H. SCHWARZ, Appellant, v. Rose Marie SCHWARZ, Appellee.
    No. 79-355.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.
    Rehearing Denied April 10, 1981.
    James J. Butler, Stuart, and Edna L. Caruso, West Palm Beach, for appellant.
    Michael A. Nugent of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellee.
   PER CURIAM.

This appeal contests an order of the trial court entered after a hearing on the appel-lee’s motion for contempt for appellant’s failure to pay support. The trial court found the appellant in arrears, but refused to hold him in contempt. In lieu thereof, final judgment was entered for the arrear-age.

The trial court’s order arrives here with a presumption of correctness. Since the appellant has failed to provide us with a transcript of the hearing, and we are advised that none exists, we are compelled to indulge the presumption and affirm.

AFFIRMED.

MOORE, HERSEY and HURLEY, JJ., concur.


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

text:
    In re The ESTATE OF Orlan Ray MOONEY, Deceased. Elizabeth MOONEY, as guardian for Donna Rae Mooney, Appellant, v. Ray Alan MOONEY, Appellee.
    No. 80-849.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Julian K. Dominick of Fishback, Davis, Dominick & Bennett, Orlando, for appellant.
    Warren H. Turner, Jr., Orlando, for ap-pellee.
   COBB, Judge.

This case involves the question of whether an adopted child has the right to inherit by intestate succession from a natural parent.

Ray Alan Mooney (hereinafter Ray Alan) was born on October 7, 1950, as the natural son of Orlan Ray Mooney (hereafter Orlan Ray). Ray Alan was adopted by his stepfather in Kentucky on August 30, 1960. Or-lan Ray died intestate on June 10, 1979.

Ray Alan filed a petition for determination of heirs in which he sought to have himself determined by the court to be an heir. Elizabeth Mooney, mother and guardian of Donna Rae Mooney, filed an answer in which she alleged that Ray Alan could not be an intestate heir of his natural father due to Ray Alan’s adoption.

Pursuant to sections 72.22 and 731.30, Florida Statutes (1959), which were in effect at the time that Ray Alan was adopted, an adopted child could inherit from his natural or blood parents. However, pursuant to sections 63.172 and 732.108, Florida Statutes (1979), which were in effect at the time of Orlan Ray’s death, an adoption terminates the legal relationship between the adopted child and his natural parents, so that for purposes of intestate succession the adopted child is no longer a lineal descendant of the natural parent.

The probate court found that Ray Alan’s right to be an heir of his natural father was acquired at the moment of his birth and that Ray Alan’s adoption by his stepfather did not deprive Ray Alan of his right to share in the estate of his natural father. The probate court further found that if section 732.108, Florida Statutes (1979), was applied to deprive Ray Alan of his rights to share in the estate of his natural father, that statute would be unconstitutional. The probate court then determined that Ray Alan was entitled to share in the distribution of the estate of Orlan Ray. It is this order that Elizabeth Mooney, as guardian for her daughter, is appealing.

In Florida, at the time of birth a child only has an expectancy that he will be an heir of his natural father. Huskea’s Estate v. Doody, 391 So.2d 779 (Fla. 4th DCA 1980). However, it is the intestate’s death that is the event that vests an heir’s right to intestate property. § 732.101(2), Fla.Stat. (1979); In re Estate of Burris, 361 So.2d 152 (Fla.1978). Since a child’s right to inherit from his natural father does not commence until the death of that father, the child’s rights of inheritance are governed by the statutes then in effect. In re Ruff’s Estate, 159 Fla. 777, 32 So.2d 840 (1947); Estate of Huskea

Since the right to inherit did not vest until the death of the intestate, the statutes attacked as unconstitutionally applied in this case did not deprive Ray Alan of any vested rights and therefore sections 63.172 and 732.108, Florida Statutes (1979) are not unconstitutional as applied to Ray Alan in this case. Arciero v. Hager, 397 S.W.2d 50 (Ky.1965); Scott v. Scott, 238 Ind. 474, 150 N.E.2d 740 (1958).

The order on petition for determination of heirs is reversed and this case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

FRANK D. UPCHURCH, Jr., Judge,

specially concurring:

While I concur in all respects with the majority opinion, I limit my concurrence to this particular factual situation. In this instance, both natural parents were alive at the time appellee was adopted; therefore, they either consented or were given notice as required by law of the adoption. However, a question remains in a situation where a minor has no parent living or guardian at the time of the adoption. Can he be deprived of the right to inherit from his blood kin absent his ratification of the adoption upon his reaching maturity? While there is justification for the parents being able to sever their child’s relationship to them and to their relatives since they gave him birth, that justification is not present when there is no consent, express or implied, on the parent’s part and the child is a minor. Even though, as discussed in the majority opinion, the right to inherit is not a vested right, but a mere expectancy or possibility, I doubt that a child can be deprived of that right simply because a state agency deemed him to be a fit subject for adoption and approved persons were willing to adopt him. Section 63.122(4), Florida Statutes (1979), requires notice of or consent to the adoption by the natural parents but, upon their death, notice or consent is not required of the next of kin. See Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA 1980) (Upchurch, F., J., concurring). I question whether the requirements of due process are met when an orphan is adopted and is thereby deprived of inheriting from his biological relatives without his subsequent ratification or consent upon becoming sui juris.

      . This expectancy gives the child standing to challenge certain actions that would affect his later rights of inheritance. In re Estate of Kant, 272 So.2d 153 (Fla.1973).

      . This is the view of most other states that have considered the question. Gamble v. Cloud, 263 Ala. 336, 82 So.2d 526 (1955); Scott v. Scott, 238 Ind. 474, 150 N.E.2d 740 (1958); In re Trainor’s Estate, 45 Misc.2d 316, 256 N.Y.S.2d 497 (1965); In re Estate of Topel, 32 Wisc.2d 223, 145 N.W.2d 162 (1966); Estate of Wiltermood, 78 Wash.2d 238, 472 P.2d 536 (1970); In re Estate of Shehady, 83 N.M. 311, 491 P.2d 528 (1971); Matter of Estate of Adolphson, 403 Mich. 590, 271 N.W.2d 511 (1978). Contra, Matter of Estate of Neuwirth, 155 N.J.Super. 410, 382 A.2d 972 (1978).

      . § 72.13, Fla.Stat. (1959).


text:
    Gordon G. EDMONDSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-822.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    James B. Gibson, Public Defender and Brynn G. Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence finding appellant guilty of violating his probation and modifying such probation. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On September 18, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. Appellant filed a brief statement in his defense. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: ORFINGER, Judge.

text:
    James RUSHTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-110.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.

      Edward J. Richardson and Richard E. Gordon of Saxon & Richardson, P. A., Melbourne, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted of vehicular homicide under section 782.071, Florida Statutes (1977). He contends that the trial court erred in: (1) not instructing the jury on lesser included offenses; (2) refusing to give his requested instruction on the burden of proof required to support conviction and (3) not granting his motion for judgment of acquittal.

Appellant now correctly contends that reckless driving is a lesser included offense of vehicular homicide. Chikitus v. Shands, 373 So.2d 904 (Fla.1979); State v. Young, 371 So.2d 1029 (Fla.1979); McCreary v. State, 371 So.2d 1024 (Fla.1979). However, this contention was not made at trial and no instruction on lesser included offenses was requested. Thus, this point was not presented to the trial court and has not been preserved for appeal. Fla.R.Cr.P., 3.390(d).

The refusal by the trial court to give the requested instruction poses a more vexatious problem. The trial court was obviously hampered by the fact that there is no standard jury instruction on vehicular homicide. He instructed the jury that:

Vehicular homicide is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death or great bodily harm to another. The essential elements of this crime ... are ... that [the victim] is dead, that such death resulted from the operation of a vehicle by the defendant ... and that said vehicle was operated in a reckless manner likely to cause death or great bodily harm to another .. .

This instruction tracks the language of section 782.071. The court then told the jury that the degree of proof required was less than culpable negligence, which he defined, and greater than ordinary negligence, and said:

Reckless operation of a motor vehicle requires that degree of negligence which falls short of culpable negligence as defined in manslaughter, but where the degree of negligence is more than a failure to use ordinary care.

It is to be noted that the only essential difference between the instruction given by the court and the instruction requested by defendant is that the latter requires the jury to find the vehicle was operated in a willful, wanton and reckless manner likely to cause death or great bodily harm, while the former uses only the adjective reckless. Appellant contends that since the reckless driving statute, section 316.192, defines that crime as the operation of a motor vehicle “in willful or wanton disregard for the safety of persons or property . . and since proof of reckless driving is necessary to proof of vehicular homicide, Chikitus, supra, the charging language of the reckless driving statute must be included in the definition of vehicular homicide. We cannot agree.

Appellant is really addressing the argument involving lesser included offenses, which we have already disposed of. We are not now trying to determine if reckless driving is a lesser included offense of vehicular homicide, because we know that it is. That does not mean, however, that we must define the lower crime in order to define the higher crime. The trial court was obligated, in this case, to define the crime of vehicular homicide. He correctly held that this was a new crime, requiring a lesser degree of proof than manslaughter and a higher degree of proof than reckless driving. McCreary, supra.

The adjectives “reckless” or “willful and wanton” by themselves are not significant because they are often used interchangeably. Their significance is found in the phrases which they modify and in the acts which they proscribe. To attempt to rely on pure definition finds us in the legal quagmire described by the Supreme Court in Ingram v. Pettit, 340 So.2d 922 (Fla.1976), viz:

Our jurisprudence reflects the history of difficulty in dividing negligence into degrees. The distinctions articulated in labeling particular conduct as “simple negligence,” “culpable negligence,” “gross negligence,” and “willful and wanton misconduct” are best viewed as statements of public policy. These semantic refinements also serve a useful purpose in advising jurors of the factors to be considered in those situations where the lines are indistinct. We would deceive ourselves, however, if we viewed these distinctions as finite legal categories and permitted the characterization alone to cloud the policies they were created to foster. Our guide is not found in the grammar, but rather in the policy of the state in regard to highway accidents.

According to how it is used, the phrase “reckless driving” may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligent. Black’s Law Dictionary 1142 (5th ed. 1979). The conduct proscribed by the vehicular homicide statute is the operation of a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to another. Thus, to convict, the jury must find that the operation of the vehicle in question is such as is likely to cause the specific harm, i. e., death of or great bodily harm to another. In the reckless driving statute, although using the words “willful and wanton,” the act proscribed is the disregard of the safety of others.

Thus, adding the words “willful and wanton” to the instruction would change nothing, because appellant did not suggest that the act or conduct proscribed should be different. If the requested phrase meant nothing more than “reckless” in the context used, then it added nothing. However, if it was intended to raise the level of proof to that of culpable negligence, then it went too far, and in either case it was properly rejected.

Since the evidence as to the proscribed conduct was sufficient to submit to the jury, there was no error in denying appellant’s motion for directed verdict of acquittal.

The judgment of conviction is

AFFIRMED.

COBB, J., and GREEN, OLIVER L., Associate Judge, concur.

      . Section 316.192, Florida Statutes (1977).

      . When questioned by the trial judge on this point, both the State and the defense agreed that there were no lesser included offenses.

      . The requested instruction read:
      Members of the jury, I instruct you that in order for you to find the defendant James Rushton guilty of the charge of vehicular homicide, you must find from the evidence and testimony presented that James Rushton did operate the motor vehicle in a willful, wanton and reckless manner that was likely to cause death or great bodily harm to another person.

      . See, e. g., Black’s Law Dictionary 1142 (5th ed. 1979), where “reckless driving” is defined as:
      Operation of automobile manifesting reckless disregard of possible consequences and indifference to other drivers. To establish statutory offense of reckless driving requires proof that defendant in management of automobile intentionally did something with knowledge that injury to another was probable or acted with wanton and reckless disregard for safety of others and in reckless disregard of consequences of acts.

      . See McCreary v. State, 371 So.2d 1024 (Fla.1979), for a definition of culpable negligence which includes, in that context, the words “reckless” and “wantonness.”


text:
    Joan J. LA FLEUR, Appellant, v. Paul LA FLEUR, Appellee.
    No. 80-264.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    G. W. Hedman, Melbourne, for appellant.

      Rex E. Moule, Jr., of Reinman, Harrell, Silberhom, Moule & Boyd, P. A. and Edward L. Trader, Melbourne, for appellee.
   ORFINGER, Judge.

Appellant contends that the trial court erred when in the final judgment dissolving the marriage, it failed to recognize her claim to joint ownership of the marital home, and instead awarded her only a special equity therein of $10,000. We agree, and reverse.

The parties were married in 1971 and at that time had little or no assets. Both worked from the time of their marriage, and the wife regularly turned over her paycheck to her husband, who was in the banking industry and who handled all the family finances. In 1977, using a small, borrowed down payment and financing the balance, the parties bought a home which was titled in their joint names. Shortly thereafter, the husband’s father died, leaving the husband an inheritance, out of which he used $17,000 to purchase in his own name the lot which forms the basis of the controversy.

In 1978, the parties sold the marital home, netting a profit of $14,000. They then jointly borrowed $45,000 from a financial institution with which, together with the $14,000 profit, they built a new home on the lot in question and then occupied it as their marital home. The husband apparently never told the wife that the lot was in his name only, and the wife assumed, incorrectly, that this new home was also entitled in their joint names. Joint funds were used to make the mortgage payments. At the conclusion of the trial the court found that the property was marital property, and gave the husband the choice of having it considered jointly owned property subject to a $20,000 special equity in the husband, or having it remain the husband’s sole property, with a $10,000 special equity in the wife. The husband chose the latter, and a judgment of dissolution of marriage was entered, including such an award. This appeal followed.

In Floyd v. Floyd, 383 So.2d 773 (Fla. 5th DCA 1980), we recognized the principle that a special equity is acquired by a spouse in property titled in the other spouse’s sole name in recognition of the claiming spouse’s contribution of funds or property or services above and beyond the performance of normal marital duties. Here, the home in question was acquired completely with joint funds, except for the initial payment of $17,000 for the lot, which came from the husband’s inheritance. The furniture in the home came partly from the old home, and the rest was purchased by the parties as they could. The earnings of both parties were pooled and used to pay their expenses, including the mortgage payments on both the old and the new home.

Under these circumstances it seems clear that the home was a marital asset, and that, except possibly for the initial contribution by the husband of the $17,000 from his inheritance, a special equity in the wife equal to one-half of the value thereof should have been recognized by the court. Floyd, supra; Johnson v. Johnson, 367 So.2d 695 (Fla. 2d DCA 1979); Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974); Wollman v. Wollman, 235 So.2d 315 (Fla. 3d DCA 1970).

The trial court should not have given the husband the option to determine who had the special equity; that was a determination to be made by the court. The record is clear, however, that the wife was entitled to a greater ownership interest than she was given, so we reverse the final judgment insofar as it determines the ownership interests in the “River Walk” property, with directions to award the wife an ownership interest therein equal to one-half thereof, provided that the trial court may reconsider the evidence or take new evidence as may be required, to determine what, if any, special equity therein is rightfully due the husband, and to award the husband such special equity therein as the court deems warranted.

REVERSED and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.


author: COBB, Judge.

text:
    Cynthia Mach PEDIGO, Appellant, v. R. E. SMITH, Appellee.
    No. 80-280.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    John V. Doyle, Daytona Beach, for appellant.
    James A. Scott, Jr. of Haas, Boehm, Brown & Rigdon, P.A., Daytona Beach, for appellee.
   COBB, Judge.

Cynthia Pedigo, the defendant in a civil negligence action arising from the collision of two motor vehicles at an intersection in Daytona Beach, Florida, attempted to bring a third-party action for damages and for contribution against R. E. Smith, the owner of property at the corner of the intersection where the collision occurred. Pedigo’s second amended third-party complaint was dismissed with prejudice, and this appeal ensued.

The issue is whether or not the dismissed complaint stated a cause of action. The negligence allegation against Smith was that he allowed a tree on his property to obscure the view by motorists of a stop sign at the intersection, and the view of the intersection itself, contrary to specified city ordinances, thereby causing or contributing to the cause of the collision between Pedigo and the car in which the original plaintiff, Patricia Ann Talley, was a passenger.

The primary ordinance relied upon by the third-party claimant contained a provision prescribing a duty on the part of the police department to give an offending property owner ten days’ notice to discontinue or remove any obstruction existing in violation of the ordinance. The third-party complaint did not allege any such notice had been given to Smith prior to the collision. The third-party defendant successfully argued before the trial court that the duty of the property owner arises only after such notification. In other words, the complaint did not actually allege an ordinance violation based on the clear wording of the ordinance itself.

The ordinance in question reads:

Section 42-58 Obstructions at Intersections.
On a corner lot, no fence, wall, tree, shrub, vegetation, planting or other obstruction to the vision of motorists or pedestrians using the highways and sidewalks provided for public use, shall be permitted or allowed to extend in excess of three (3) feet above the curb or established grade level of the street on that portion of a front or side yard that is included between the sidelines of intersecting streets and a line connecting said lines at points which are twenty-five (25) feet distant from their point of intersection measured along said lines or projections thereof. It shall be the duty of the police department to notify the owner or occupant of property on which such obstruction exists, to discontinue, remove or relocate such obstruction within ten (10) days from the date of notification. (Code 1955, Sec. 35-32).

The above ordinance, predicated on the police power of the municipality, is penal in nature and must be strictly construed. Since the notice requirement is incorporated as an integral part of the ordinance itself, we agree with the trial judge’s construction of that ordinance. Since it was not alleged that the owner was notified by the police of any obstruction, the complaint did not sufficiently allege a violation of municipal ordinance section 42-58.

The appellant also claims that he properly pled a violation of Article V, Section 17, of the Daytona Beach City Zoning Ordinance. It is readily apparent, however, that said ordinance applies only in “R” districts—and it was not alleged that this collision occurred in an “R” district. Irrespective of the fact that a municipal ordinance must be pled, in all cases where the plaintiff seeks the benefit of such an ordinance, he must plead the facts necessary to bring himself within the provisions of the ordinance. See 61 Am.Jur.2d Pleading § 86 (1972).

Since Pedigo failed to properly plead the violation of an ordinance or statute, the question becomes whether or not there is a common law duty on a landowner to maintain his property in a condition so that a motorist approaching an intersection has a clear view of other traffic and intersection traffic signs. This question was considered in the recent case of Evans v. Southern Holding Corp., 391 So.2d 231 (Fla. 3d DCA 1981). That case adhered to the traditional rule that the owner of land is under no affirmative duty to remedy conditions of purely natural origin upon his land. See Prosser, Law of Torts § 57 (4th ed. 1971); 39 Am.Jur.2d Highways, Streets and Bridges § 462 (1968).

In Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374, 376 (1947), the Florida Supreme Court discussed the duties of motorists when confronted with natural obstructions to view at intersections:

Obstruction of view when motoring on a highway must be observed by all motorists. Every user of the highway is required to exercise reasonable care for his own safety and protection. It was the truck driver’s duty and also the driver of the automobile to observe the oleander bush at this intersection and to bring their vehicles under such control as the situation required and demanded. 5 Am. Jur. 459, par. 763; Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 3, 242-249, par. 1825.

The inference from the above language, and the clear holding in the courts of other states, is that the negligence of motorists who collide at intersections intervenes and supersedes that of private property owners of natural vegetation, in the absence of some statutory or ordinance violation.

For the foregoing reasons, the dismissal with prejudice by the trial judge is

AFFIRMED.

ORFINGER, J., concurs.

DAUKSCH, C. J., concurs in conclusion only.

      . SECTION 17. Obstruction to Vision at Street Intersections. In order to minimize accidents caused by obstruction to vision at street intersections, the following regulations shall apply in all “R” districts.

      . See, e. g., Bohm v. Racette, 118 Kan. 670, 236 P. 811, 42 A.L.R. 571 (1925).


author: DAUKSCH, Chief Judge.

text:
    Charles R. PEEK, Appellant/Cross-Appellee, v. Harvey T. STEVENS and Insurance Company of North America, Appellee/Cross-Appellants.
    No. 80-341.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appellant/cross-appellee.
    Walter A. Ketcham, Jr. of Walker & Buckmaster, P.C., Orlando, for appel-lees/cross-appellants.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a personal injury case where the jury returned a zero verdict and the court denied a motion for new trial. There is a definite controversy as to whether all of the medical expenses which were incurred by plaintiff were incurred as a result of the accident. There is no question that at least the diagnostic medical bills were directly related to the accident. Of course we have no way of knowing why the jury refused to award any amount to the plaintiff. It cannot be on account of lack of liability because the defendant admitted liability and the jury was so instructed. It cannot be because no injuries were proved because, as we said in Ridenour v. Sharek, 388 So.2d 222 (Fla. 5th DCA 1980), the plaintiff is entitled to at least his diagnostic medical expenses which are reasonably incurred.

Because the jury was obviously misled or failed to understand that at least a portion of the expenses suffered by the plaintiff should have been paid by the defendant, we must assume it was not fully cognizant of its duty as a jury. We cannot make the determination that the plaintiff is entitled to only the diagnostic medical expenses nor can we assess what the damages should be; so in light of the jury’s failure to award at least a portion of the damages it was bound to award, we must require a new trial.

REVERSED AND REMANDED.

ORFINGER and SHARP, JJ„ concur.


author: COWART, Judge.

text:
    John E. TILLIS, Sr. et al., Appellants, v. UNITED PARTS, INC. et al., Appellees.
    No. 80-844.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    James R. Dressier, Cocoa Beach, for appellants.
    Robert T. Westman and L. L. Lovering, Cocoa, for appellees.
   COWART, Judge.

Appellants, minority stockholders of a close corporation, filed a stockholder’s derivative action against the majority stockholders and the corporation alleging that the majority stockholders, acting as corporate directors and officers, purchased from themselves and for the corporation shares of capital stock of the corporation at a price in excess of its market value. The complaint alleged that while the purchase was made from retained corporate earnings it so financially depleted the corporation that the corporation was required to borrow $10,000 back from the majority stockholders. The trial court dismissed the complaint as failing to state a cause of action. We reverse.

Appellees argue that section 607.017, Florida Statutes (1979), allows corporations to buy their own stock and that all corporate powers are vested in the board of directors. § 607.111, Fla.Stat. (1979). Ap-pellees also refer to cases holding that courts are not to substitute their judgment for a director’s in the exercise of a discretionary corporate function. See, e. g., Lake Region Packing Association, Inc. v. Furze, 327 So.2d 212 (Fla.1976).

Corporate directors owe a fiduciary obligation to the corporation and to the stockholders and must act in good faith and in 'the best interests of the corporation. Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 144 So. 674 (1932); Chipola Valley Realty Co. v. Griffin, 94 Fla. 1151, 115 So. 541 (1927); Etheredge v. Barrow, 102 So.2d 660 (Fla. 2d DCA 1958). Transactions have been set aside as unfair where a director has acted both on behalf of a corporation and individually. See, e. g., Rowland v. Times Pub. Company, 160 Fla. 465, 35 So.2d 399 (1948); News-Journal Corporation v. Gore, 147 Fla. 217, 2 So.2d 741 (1941); Hackley v. Oltz, 105 So.2d 20 (Fla. 3d DCA 1958). Corporate officers, controlling the corporation through ownership of a majority of the stock, have a fiduciary relation to minority stockholders. Hanraty v. Ostertag, 470 F.2d 1096 (10th Cir. 1972); Harriman v. E. I. DuPont De Nemours & Co., 372 F.Supp. 101 (D.Del.1974); Backus v. Finkelstein, 23 F.2d 357 (D.Minn.1927).

Appellants argue that instead of using retained earnings to pay dividends to all stockholders, appellees as majority stockholders, by using the corporate earned surplus to buy part of their own stock, in effect paid themselves a dividend to the detriment of appellants as minority stockholders, citing Alliegro v. Pan American Bank of Miami, 136 So.2d 656 (Fla. 3d DCA 1962). In Alliegro a majority of the bank stock was owned by a parent corporation, Sottile, Inc. Minority stockholders filed suit alleging that the bank was making preferential dividends to the majority stockholders (the parent) by filing a consolidated tax return whereby the bank’s earnings were set off against the parent’s losses with the resulting tax savings to the bank being transferred to the parent. The Third District Court, in reversing the trial court’s dismissal of the minority stockholder's complaint, held the tax savings payments to be preferential dividends to the majority shareholder and that such payments required the unanimous consent of all stockholders.

An application of these principles to facts similar to those in this case is illustrated by Donahue v. Rodd Electrotype Company of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975). There it was held that the stockholders in a close corporation owed each other the same fiduciary duty as that owed by one partner to another in a partnership and that the action of controlling stockholders in authorizing purchase of stock by the corporation from themselves without granting an equal opportunity to minority stockholders to sell shares for the same price constituted á breach of that fiduciary duty.

Appellee stockholders as directors owed the corporation the duty to buy stock for it at the lowest obtainable price. Therefore the purchase of stock from themselves at any price, if similar stock could have been purchased from appellants at a lower price, constituted a breach of their fiduciary duty to the corporation.

The complaint in this case was sufficient to allege both a breach of fiduciary duty by the appellees as directors to the corporation and a breach of appellees’ fiduciary duty as majority stockholders to not utilize their control of the corporation to their advantage as against the minority stockholders. Unless an equal opportunity to sell is given all stockholders, the purchase of shares in a close corporation by controlling stockholders from themselves for the account of the corporation constitutes a preferential distribution of corporate assets and a relative advantage over minority stockholders — the turning of corporate funds to personal use — inconsistent with a fiduciary duty. The order dismissing appellant’s complaint is

REVERSED.

DAUKSCH, C. J., and SHARP, J., concur.


author: SHIVERS, Judge.

text:
    Enoch DICKINSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. OO-125.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Enoch Dickinson, Jr., in pro. per., for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Defendant appeals from a judgment of conviction and sentence for trespass and burglary of a conveyance. We affirm defendant’s conviction and sentence except his enhanced sentence as an habitual offender under § 775.084, Florida Statutes (1977) which we quash.

The record below fails to demonstrate the defendant has either previously been convicted of a felony in this state or has twice previously been convicted of a first degree misdemeanor in this state or of another qualified offense. Section 775.084(l)(a)l.-a.b., Florida Statutes (1977). A “qualified offense” includes any offense in violation of a law of another state or of the United States that resulted in imprisonment exceeding one year. Section 775.084(l)(c), Florida Statutes (1977). The above statutes require proof of two out-of-state convictions of a qualified offense in order to justify the imposition of an enhanced sentence. Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979); Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979). However; the only previous conviction which the lower court relied upon in sentencing the defendant as a habitual offender was a mail fraud conviction in the United States District Court for the Southern District of Alabama.

Therefore, that portion of defendant’s judgment and sentence which imposes an additional five years under the habitual offender act to run consecutively to his initial sentence for trespass and burglary of a conveyance is quashed. All other portions of defendant’s judgment of conviction and sentence are affirmed.

Affirmed as modified.

WENTWORTH, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: WENTWORTH, Judge. ERVIN, Judge,

text:
    Leroy LYNN, Appellant, v. STATE of Florida, Appellee.
    No. SS-519.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Michael J. Minerva, Public Defender, Randolph P. Murrell, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

This is an appeal of a final judgment of the Circuit Court for Leon County finding appellant guilty of grant theft and temporary unauthorized use of a motor vehicle, and not guilty of additional charges of burglary and dealing in stolen property. We affirm.

Issues presented are: (1) Whether the remarks made by the assistant state attorney during his closing argument amounted to a violation of appellant’s right to due process, and prevented him from receiving a fair trial; and (2) Whether the instruction on proof of unexplained possession of stolen property amounted to a comment on the evidence that deprived appellant of his right to due process and prevented him from receiving a fair trial.

On June 7, 1979, appellant, Nathaniel Raymond Haines, and James Levon Atkins, were charged by a four-count information with the crimes of burglary of a dwelling, grand theft, grand theft of a motor vehicle, and dealing in stolen property. The defendant was tried separately before a jury on October 25, 1979 on the burglary and two grand theft charges. The evidence at trial showed that on the morning of May 17, 1979, Mr. Townsend’s residence was burglarized. There were two sets of shoe prints found in the areas where the intruders were likely to have been. Various items of personal property were taken from the dwelling, and a 1966 Ford Mustang was taken from Mr. Townsend’s garage. There was evidence that the burglary occurred at approximately 11:30 in the morning.

Appellant’s sister testified that between 12:30 and 1:00 on May 17 appellant and Nathaniel Haines arrived at her mobile home in a Mustang automobile. They asked if they could store certain property in her home. The property was unloaded from the car into the house. At approximately 6:45 of the same evening a Georgia police officer, Louis Jackson, stopped a gold Mustang inside Thomasville city limits. The driver Nathaniel Haines was arrested for driving without a valid driver’s license. James Atkins, the front seat passenger, and appellant, the back seat passenger, were not detained. After appellant and Atkins had left Officer Jackson discovered that the Mustang was a stolen vehicle. The car was impounded and the Leon County sheriff's department was notified. A Leon County Deputy Sheriff testified that he drove to Thomasville and interviewed Haines. Haines denied any knowledge of the burglary and stated he thought the car and the personal property belonged to Leroy Lynn. A search warrant was issued to recover the property being stored at appellant’s sister’s home. Most of the missing items were recovered there. Mr. Townsend later discovered a checkbook, which had been taken during the burglary, behind the sunvisor of the car. Appellant’s fingerprints were found on that checkbook. Co-defendant Haines testified that he and appellant had burglarized the home, taken the car, stored some of the items at appellant’s sister’s house, and had attempted to cash a forged check on Mr. Townsend’s account.

Appellant testified that on the morning of the 17th he had dressed for work and had waited for his father to pick him up to go to work. His father never showed up and about noon appellant walked down to the mailbox. At that time, Nathaniel Haines drove by in the gold Mustang and picked appellant up. Appellant testified that Haines stated the car was his uncle’s and he was using it to move some of his belongings. The two decided to go looking for girls and decided to store the items in appellant’s sister’s home because it was close by. They later picked up James Atkins, and were eventually stopped in Thomas-ville, Georgia. Appellant testified that he still thought the only trouble Nathaniel Haines was in was for driving without a valid driving license. A week later he learned of the burglary. James Atkins did not testify.

In closing arguments the assistant state attorney, in discussing the checkbook and the fingerprints found on the back of it, stated: “We come to the check .... Isn’t it interesting, the explanation that comes with the check. Now I think — there’s not much question in my mind about the check.” This statement was not objected to. In reference to Haines’ testimony the assistant state attorney stated: “When he testified here today, he told you that he was telling the truth; and we know from the other evidence that most everything he said, I think everything he said was true, and we know it by independent evidence from the investigation that the officer did.” (e. s.) No objection was made to this statement. Later closing arguments respond to defense counsel’s remarks as follows: “He said, ‘Where is Charles Williams?’ Always got to have the mystery man. I ask you the question of where is James Atkins? We presented to you the available witnesses. Where is James Atkins today? Sometimes we know where they are and can't tell you.” (e. s.) The defense counsel objected and moved for a mistrial, which was denied. Lynn was found not guilty of the burglary charge, guilty of the grand theft charge relating to the personal property taken from the home, and guilty of the lesser included offense of temporary unauthorized use of a motor vehicle. Appellant was sentenced to five years in prison on the grand theft charge and one year in the county jail on the temporary unauthorized use charge, the two sentences to run concurrently.

On the first issue we conclude the comments in this case do not require reversal. The Supreme Court in Carlile v. State, 129 Fla. 860, 176 So. 862 (1937), stated the rule that if the improper remarks are of such a character that neither rebuke or retraction may entirely destroy their sinister influence, a new trial should be awarded, regardless of the absence of an objection. In this case, the statement in question does not impart any clear meaning to the jury. Even in conjunction with the two prior statements, we believe the remark was not of such a character as to destroy the defendant’s right to a fair trial, measured by precedent in this area. The statements made by the assistant state attorney were in direct response to comments made by appellant’s trial counsel regarding the availability of witnesses. The statements that were made were fair comments to refute statements made by appellant’s trial counsel during closing argument. In United States v. Tasto, 586 F.2d 1068 (5th Cir. 1978), the court stated: “A prosecutorial statement that additional evidence is available though not produced, is usually impermissible.” However, in this case, like Tasto, the remarks were invited by a statement earlier made by defense counsel and this excursion outside the record by defense counsel was met by a reply in kind. In Dixon v. State, 206 So.2d 55 (Fla. 4th DCA 1968), the court held: “The argument by the prosecuting attorney was invited by the argument made by defendant’s attorney and was not prejudicial to a fair trial.”

Appellee also contends that if the comments were error, the proper remedy for relief would have been a motion to strike and request for curative instructions. Appellant should not be heard to complain when that remedy was not sought. See Frierson v. State, 339 So.2d 312 (Fla.3d DCA 1976), where the court held the prosecutor’s remarks in closing argument were not so harmful as to require a new trial. The court there stated that each case involving an alleged improper remark by the prosecutor must be considered on its own merits and within the circumstances existing at the time the questionable statement was made. In State v. Cumbie, 380 So.2d 1031 (Fla.1980), the court held that from a review of the entire record Cumbie received a fair trial in spite of the prosecutor’s improper closing argument. The trial court there sustained the objection and admonished the jury to disregard the remark. No further curative instruction was requested. The Supreme Court, finding Cumbie received a fair trial, quashed this court’s order and reinstated the judgment of conviction.

By the second issue above stated appellant challenges the giving of the following standard jury instruction:

Proof of unexplained possession by an accused of property recently stolen by means of a burglary may justify a conviction of a burglary with intent to steal that property, if the circumstances of the burglary and of the possession of the stolen property when considered in light of all the evidence in the case convince you beyond a reasonable doubt that the defendant committed the burglary.

Appellant’s contention is that the instruction was improper because it assumed a fact that was in dispute, i. e., the incredibility of appellant’s explanation of possession. Ap-pellee asserts the court properly assumed that fact, having “made an initial determination that appellant’s alleged explanation ... was not believable.” We conclude instead that the instruction was proper because it did not assume that disputed fact and because the instruction is properly given when credibility of an explanation of possession is in dispute. We note, however, that the parties’ positions would be supported by a literal reading of a sentence appearing by way of dictum in Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979), intended as a summary of the decision in Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975), as follows: “[U]nless it is first shown that defendant, when arrested, either failed to explain or gave an incredible or unbelievable explanation, the instruction is not applicable.” The ruling in Palmer has now been effectively disclaimed by Smith v. State, 394 So.2d 407 (Fla.1980), and we conclude the above-quoted statement from Griffin may not be construed to require (or even permit) the court’s evaluation of the credibility of an explanation of possession in determining applicability of the instruction. The Young opinion is clear to the effect that the inference “does not arise from the possessor’s failure to explain .... It is the fact of possession that provides the basis for the inference of guilt.” Young v. State, 217 So.2d 567, at 570 (Fla.1968). Whether or not the word “unexplained” might properly be omitted from the instruction (cf. Marinos v. State, 371 So.2d 675 (Fla. 4th DCA 1979)), the language of the instruction, supra, has been approved by the Court and may arguably refer to any possession (of property recently stolen) which the jury finds to be unexplained by the evidence. We note also that the decision in Griffin rested on absence of evidence of possession rather than lack of explanation, credible or otherwise. The jury in the present case, as already noted, did return a verdict of not guilty on the charge of burglary, the crime to which the instruction was directed.

The judgment appealed is accordingly affirmed.

SHAW, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I agree with the majority that the remarks made by the assistant state attorney during closing argument did not prevent the defendant from receiving a fair trial. I must respectfully disagree, however, with the majority’s conclusion that the trial court’s communication to the jury of Florida Standard Jury Instruction, Criminal Cases, 2.07, was not prejudicial error. At the time of his apprehension, appellant explained — similar to his testimony at trial— that Nathaniel Haines had picked him up near his home in a 1966 Mustang automobile, and that he was unaware that either the car or any of its contents were stolen. I had always considered, until now, that the word “unexplained” meant precisely that. The majority, however, interprets the charge as properly given, although an explanation is offered, “when credibility of an explanation of possession is in dispute.” Ante at 623. While State v. Young, 217 So.2d 567, 570 (Fla.1968), does assert that “[i]t is the fact of possession that provides the basis for the inference of guilt ...” (emphasis in original), this statement was intended to amplify the immediately preceding sentence observing that the inference “does- not arise from the possessor’s failure to explain ... that his possession of the recently stolen goods is innocent.” Id.

I think it questionable whether the four-member majority of the Young court necessarily intended to sanction the application of the charge to a situation in which the accused offers a palpably credible explanation for his possession of recently stolen property. I seriously doubt whether the Young holding was intended to extend beyond the specific facts before it: circumstances showing that the defendant made no explanation either at the time of arrest or at the time of trial.

I also question the materiality of Smith v. State, 394 So.2d 407 (Fla.1980), to the issue before us. Smith upheld the giving of the standard instruction under circumstances showing the defendant made no attempt to explain his possession of recently stolen property, either at the time of his arrest, or when he testified in his defense at trial. Smith disapproved the rule stated in Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975), cert. den., 336 So.2d 108 (Fla.1976), which had held that an instruction, somewhat similar to the standard instruction, was applicable only to those circumstances where the accused, given an opportunity at the time of apprehension, to explain his possession, either volunteered an unreasonable or incredible explanation at such time, or where he failed to explain his possession during cross-examination at trial. Smith did not address the question whether it was appropriate to apply the standard charge to any situation — as here — where a reasonable explanation is provided.

In the case at bar, the majority apparently holds that a trial court is authorized to give the standard jury instruction any time an accused offers an explanation whether arguably credible or otherwise. The difficulty in applying such a rule to all cases in which an explanation is offered is that the standard charge, without amplification, is misleading, since it is in effect an implicit comment to the jury that the defendant’s explanation is so unreasonable and incredible as to be unworthy of belief; therefore, the explanation offered is in effect no explanation at all.

Moreover, the indiscriminate giving of the standard instruction in all such cases would, in my judgment, be an invasion by the court of the jury’s province to determine the credibility of the evidence. Such a charge is particularly devastating to a defendant’s case, as the one before us, in which the only evidence directly linking the defendant with the crime charged comes from the accomplice. In the case at bar, appellant’s conviction depended in great measure upon the acceptance by the jury that Nathaniel Haines’ testimony — implicating the defendant in the burglary of the dwelling from which the stolen items were taken — was credible. This testimony was of course contradicted by the defendant. Once the standard instruction, with its implicit suggestiveness, was imposed, the scales may well have been tipped against the defendant.

Perhaps a modified instruction — like that proposed in Palmer — would be appropriate to a situation in which the defendant gives an explanation “which arguably raises a reasonable doubt as to his guilt .... ” 323 So.2d at 618, n. 8. Under those circumstances “it would seem .. . that the accused is entitled to a balancing charge that his possession does not infer guilt unless the state disproves the explanation.” Id.

The giving of the standard instruction here, without further exposition, appears little more than an impermissible comment to the jury as to how much weight it should attach to the explanation offered. As such, it should not be countenanced.

      . The instruction provided in part:
      I charge you further that with reference to the possession of recently stolen goods, that where it is shown beyond a reasonable doubt that a building has been entered and property stolen from it and soon thereafter the property is found in possession of the person charged with entering the building with an intent to steal, such possession unexplained, or if explained is by an explanation so unreasonable and incredible that the jury finds it unworthy of belief, may warrant the jury to infer guilt of the crime of entering the building with intent to steal.
      323 So.2d at 615 (emphasis in original).’

      . Such a balancing charge is founded on legal principles long antedating Young v. State, supra. Thus, in McDonald v. State, 56 Fla. 74, 47 So. 485, 486 (1908), it is stated:
      Where a party who is found in possession of goods recently stolen directly gives á reasonable and credible account of how he came into such possession, or such an account as will raise a reasonable doubt in the minds of the jury, then it becomes the duty of the state to prove that such account is untrue, otherwise he should be acquitted. The account given must be not only reasonable, but it must be credible, or enough so to raise a reasonable doubt in the minds of the jury, who are the judges of its reasonableness and probability, as well as of its credibility. The account given may be reasonable and highly plausible, yet, if the jury do [sic] not believe-it, they have the right to convict upon the evidence furnished by the possession of the stolen goods alone, even though the state does not put in any evidence directly to prove the falsity of the account given.


text:
    Willie Fredrick SIMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. UU-40.
    District Court of Appeal of Florida, First District.
    March 25, 1981.

      Michael J. Minerva, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, David P. Gauldin and Miguel A. Oliv-ella, Jr., Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant, convicted of the offenses of burglary of a dwelling, sexual battery by the use of force and violence likely to cause serious personal injury, and kidnapping, seeks reversal of the kidnapping conviction on the ground that the evidence was insufficient to support that charge. We agree and reverse.

The victim testified that she was awakened in her apartment to find appellant in her bedroom, at which point she was physically assaulted by appellant. Appellant then pulled her from the bedroom into the living room, where he had forcible sexual intercourse with her. We hold that appellant’s removal of the victim from the bedroom to the living room during the course of this criminal episode did not constitute the separate offense of kidnapping within the meaning of the statute, Section 787.01, Florida Statutes. The same result was reached by this court in Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980), under facts even stronger than those presented here. We adopt the same reasoning as did the court in the Friend case, and find that the circumstances with respect to the “confining, abducting, or imprisoning” (Section 787.01(l)(a), Florida Statutes) were “with-put independent significance,” and that these actions were “not materially different from the restraint necessarily involved” in the commission of the sexual battery offense. (Id. at 697)

While we do not rule out a conviction of kidnapping as an incident to a sexual battery, we do conclude that the confinement or imprisonment here is essentially indistinguishable from the acts constituting the sexual battery itself, and further, that the mere removal of the victim from the bedroom to the living room of her own apartment, without more, did not constitute an abduction within the meaning of the statute.

The conviction and sentence for kidnapping is REVERSED.

LARRY G. SMITH and THOMPSON, JJ., and OWEN, WILLIAM C., Associate Judge (Ret.), concur.


text:
    David KINSEY, Appellant, v. SKYLINE CORPORATION and Commercial Union Insurance Company and Family Mart Store # 017 and Ideal Mutual Insurance Company, Appellees.
    No. WW-2.
    District Court of Appeal of Florida, First District.
    March 25, 1981.

      Frank C. Amatea, Ocala, for appellant.
    Wayne C. McCall, Ocala, and Martin J. Mickler, Jacksonville, for appellees.
   LILES, WOODIE A. (Retired), Associate Judge.

The claimant appeals from a deputy commissioner’s order finding that the statute of limitations had run on his July 14, 1973, accident. We reverse.

Claimant suffered a compensable injury to his back on July 14,1973, while employed by the Skyline Corporation, coverage provided by Commercial Union Insurance Company (employer/carrier). The last benefits paid, either medical or compensation, for this accident occurred on October 15, 1975. On August 9, 1977, he filed another claim for compensation regarding the 1973 accident; however, he undertook no further action regarding this claim until February 7, 1980, when he filed an application for hearing with the deputy commissioner. At the pre-trial hearing on March 19,1980, the employer/carrier filed a motion to dismiss this claim for lack of prosecution pursuant to Rule 11(b), Florida Workers’ Compensation Rules of Procedure. The deputy commissioner agreed and dismissed the claim.

The issue thus presented is whether the claimant’s application for hearing dated February 7, 1980, serves to preclude dismissal of the claim for failure to prosecute. This is apparently an issue of first impression in the field of workers’ compensation procedure. However, it is well settled in civil cases that, when an action is dismissed for lack of prosecution, the time during which it is pending does not toll the statute of limitations and cannot be deducted from the total elapsed time in computing that statute. Hamilton v. Largo Paint & Decorating, Inc., 335 So.2d 623 (Fla. 2nd DCA 1976). Nevertheless, the provisions of this rule are not self-actuating. Shalabey v. Memorial Hospital of South Broward Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971), cert. denied 257 So.2d 562 (Fla.1972); Fund Insurance Companies v. Preskitt, 231 So.2d 866 (Fla. 4th DCA 1970). Therefore, even though no action is taken in the ordinary civil case for a period of one year or more, if action is taken prior to the filing of a motion for dismissal on this ground and prior to dismissal by the court on its own motion, it operates to progress the cause so as to preclude its dismissal for failure to prosecute. Knowles v. Gilbert, 208 So.2d 660 (Fla. 3rd DCA 1968). In view of the obvious similarity of purpose between Florida Workers’ Compensation Rule of Procedure 11(b) and Florida Rule of Civil Procedure 1.420(e), we feel that the rationale of Knowles, supra, applies equally to dismissals of workers’ compensation causes for lack of prosecution. Accordingly, we hold that the claimant’s action in filing the application for hearing more than two years after the August 9, 1977, claim prevented dismissal on the employer/cárrier’s subsequent motion to dismiss for lack of prosecution. See Beigel v. Simon, 210 So.2d 473 (Fla. 3rd DCA 1968). See also City of Jacksonville v. Hinson, 202 So.2d 806 (Fla. 1st DCA 1967), cert. denied 207 So.2d 688 (Fla.1967).

Reversed and remanded for further proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., concur.

      . Rule 11(b) states:
      “Any claim, or any petition to modify in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of deputy commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years after filing, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the deputy commissioner before whom the action is pending, the file shall be forwarded to the appropriate deputy commissioner who shall, after reasonable notice to the parties and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the claim or petition should remain pending.”

      . Fla.R.Civ.P. 1.420(e):
      “(e) Failure to Prosecute. All actions in which it appears on the fact of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”

      . The only substantive difference between the two rules is the period of time.


text:
    STATE of Florida, Appellant, v. Richard Herbert COLE, Jr., Carol Maier and Kevin Neil Maier, Appellees.
    Nos. WW-325, WW-326 and WW-327.
    District Court of Appeal of Florida, First District.
    March 25, 1981.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellant.
    William J. Sheppard, of Sheppard & Car-ithers, P. A., Jacksonville, for appellees.
   SHIVERS, Judge.

The State appeals from an order granting defendants’ motion to suppress. The State contends the trial court erred in granting the motion to suppress because, contrary to the finding by the trial court, the affidavit in support of the search warrant was sufficient to indicate probable cause that marijuana would be found on the premises occupied by the defendants. We agree and reverse.

Defendants, Carol Maier, Kevin Maier, and Richard Cole, were charged by information on June 27, 1980, with possession of more than twenty (20) grams of cannabis. Subsequently, appellees filed a motion to suppress, alleging the affidavit supporting the search warrant executed on June 16, 1980, was insufficient because it did not show the quantity of cannabis reportedly seen on the premises and the affiant failed to allege the cannabis was still present at the time the affidavit was executed.

The contested affidavit stated the affiant received information from a reliable confidential informant that the informant personally observed a quantity of cannabis on defendants’ premises “within the last fourteen days.”

In granting defendants’ motion to suppress, the trial court determined that the observation of an unspecified quantity of marijuana inside a private residence and. a fourteen day time period between that observation and the issuance of a search warrant failed to indicate probable cause sufficient to believe that a violation of a drug abuse law was taking place at the time of the execution of the warrant. We disagree.

The affidavit here, like the one in Chadwick v. State, 358 So.2d 901 (Fla. 1st DCA 1978), when read in the “commonsense manner” dictated in United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), sufficiently indicates: (1) the information is reliable, and (2) the affiant has reason to believe in the truthfulness of that information. This court determined, in Chadwick, that no more is necessary to satisfy the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In the instant case, the record indicates the affiant has been employed with the Jacksonville Sheriff’s Department for five years, including twenty months on the vice squad. Furthermore, the information in the affidavit was reliable as the informant had personally observed cannabis inside appellees’ premises and had in the past provided accurate information leading to the arrest of at least ten persons for drug related activities.

We also determine that the fourteen day period between the observation of the cannabis and the issuance of a warrant will not disturb the finding of probable cause. House v. State, 323 So.2d 659 (Fla. 1st DCA 1975). Citing Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959), we held, in House, supra, that if the time period between the alleged criminal activity and the issuance of the search warrant is no more than thirty (30) days, a finding of probable cause will not be disturbed.

Accordingly, the order below granting appellees’ motion to suppress is REVERSED and this cause is REMANDED for action consistent with this opinion.

SHAW and THOMPSON, JJ., concur.


author: SHAW, Judge.

text:
    ORIN CUMMINGS CONSTRUCTION CO.; Peninsular Fire Insurance Company, Appellants, v. Jerry Wayne BECKMAN, Appellee.
    No. XX-62.
    District Court of Appeal of Florida, First District.
    March 25, 1981.

      James T. Walker of Brennan, McAliley, Hayskar, McAliley & Deckert, P. A., Fort Pierce, for appellants.
    Shelton Clyatt, Jr., West Palm Beach, for appellee.
   SHAW, Judge.

The employer/carrier appeal from a workers’ compensation order awarding the claimant 45% temporary partial disability compensation.

Section 440.19(2)(d), Florida Statutes (1979), mandates particularization of a claim by providing that it will put the Division and the employer on notice with respect to the identity of the parties and the specific compensation benefit which is due, but has not been paid or is not being provided. Any claim or portion thereof not in compliance with the subsection is subject to dismissal upon the motion of any interested party, the Division, or the Deputy Commissioner. It is clear from the statute that it was the intent of the Legislature to discourage the filing of “shot gun” claims. We are asked to scrutinize the following claim in light of this intent.

The appellee’s claim provided the required vital information relative to employer and employee identification, date of accident, date of notification, site of. injury, description of accident, place of accident and employer’s telephone number. In filling out that portion of the claim form calling for information relative to the specific benefit(s) due but not paid or not provided, the claimant supplied the following response:

Claimant has been unable to work due to injury and to date has received one week only of workers’ compensation benefits. He is due benefits from date of accident forward ... at $194.14 per week. Attorney fees and costs.

Appellants assert that such a claim does not meet the demands of the statute. We disagree. The claimant has provided the basic information required to put the employer on notice as to the benefits which are due and are not being provided. The problem in this case is not with the claim itself, but with the application for and the notice of hearing. No request was made for temporary partial disability benefits in the pretrial stipulation. The application for hearing indicated that the relief sought was “to have temporary total disability benefits brought up to date.” The Deputy’s notice of hearing stated that the subject of the hearing was “to determine temporary total disability benefits.” The carrier was never put on notice that it would be called upon to defend a temporary partial disability claim in addition to the noticed claim for temporary total disability benefits. The 1979 revision of the Workers’ Compensation Law provides:

... An application for hearing concerning a claim shall state concisely in separate numbered paragraphs the reasons for requesting a hearing and the questions at issue or in dispute which the applicant expects the deputy commissioner to hear and determine, with sufficient particularity that the responding or opposing parties may be notified of the purpose of the hearing, including the issues to be heard and determined and the specific benefit which is due and not paid. ... Any application for hearing not in compliance with this paragraph shall be subject to dismissal upon motion of the division, the deputy commissioner, or any interested party.

In light of the above statute it was error for the Deputy Commissioner to hear and determine issues other than those particularized by the claimant’s application for hearing and the Deputy Commissioner’s notice of hearing. The employer’s first notice that the Deputy was being asked to determine the issue of temporary partial disability benefits was the claimant’s request for such benefits made at the final hearing. The employer promptly urged dismissal of the amended claim on the ground of improper notice. In the opinion of this court the motion was well-taken.

The order is reversed and the cause is remanded to the Deputy Commissioner for further proceedings consistent with this opinion.

The remaining issues are rendered moot in light of our reversal.

SHIVERS and THOMPSON, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Michael Edward BRUNO, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-209.
    District Court of Appeal of Florida, First District.
    March 25, 1981.

      Michael Edward Bruno, pro se.
    No appearance for appellee.
   ROBERT P. SMITH, Jr., Judge.

Bruno’s appeal from an order denying his Rule 3.850 motion for postconviction relief urges that a split sentence committing him to the Department of Corrections for five years, three to be served by imprisonment, followed by two on probation, is unlawfully equivalent to a sentence of probation for five years on condition that the subject serve three years in prison. Villery v. Parole and Probation Commission, 396 So.2d 1107 (Fla.1980). We disagree. See Hollingsworth v. State, 394 So.2d 580 (Fla. 5th DCA 1981).

AFFIRMED.

McCORD and ERVIN, JJ., concur.


author: GRIMES, Judge.

text:
    S. C. M. ASSOCIATES, INC., a Florida Corporation, Appellant, v. Robert RHODES, Appellee.
    No. 80-676.
    District Court of Appeal of Florida, Second District.
    March 25, 1981.
    Leslie M. Conklin, Graham, Hodge & Larson, P. A., Belleair Bluffs, for appellant.
    Dennis M. Janssen of Riden, Crawford & Janssen, P. A., St. Petersburg, for appellee.
   GRIMES, Judge.

The main issue in this appeal involves the question of who was the prevailing party in a mechanic’s lien action for purposes of awarding attorney’s fees under section 713.-29, Florida Statutes (1979).

S.C.M. Associates, Inc., contracted to build a $59,750 home for Robert Rhodes to be completed by October 20, 1978. The house was not finished on that date, and as a result, the parties postponed the final closing. However, early in November Rhodes determined that he needed to move into the house because he had already committed himself to vacating his present home. The parties met on November 3 and agreed to a closing date of November 6 which they later postponed to November 8. On November 3 there remained a number of items pertaining to the construction which the contractor needed to finish or correct, but there was a disagreement over whether those items were to be accomplished before closing. S.C.M. viewed them primarily as warranty items which it would take care of after closing. Rhodes testified that he understood that S.C.M. was to complete the items by closing.

S.C.M. had only accomplished a few of the corrections by the date of closing; so Rhodes announced that he would pay only one half of the final draw at that time and withhold the balance until the required work was completed. Based upon its position that Rhodes had agreed to pay the entire balance at closing in order to obtain occupancy, S.C.M. refused to accept the proffered $8,119.50, and the closing was aborted. However, Rhodes did obtain occupancy of the house because the certificate of occupancy had been issued earlier that day.

After subsequent negotiations broke down, S.C.M. filed a mechanic’s lien against the property for $16,239 and brought an action for foreclosure. Rhodes placed the money representing the final draw in a personal bank account and used some of the funds to repair and complete the house. He also filed a counterclaim for breach of express and implied warranties under the construction contract. Following a nonjury trial, the court entered final judgment, the pertinent portions of which are set forth below:

1. The Court finds in favor of the Defendant on the Complaint for foreclosure of mechanic’s lien and against the Plaintiff, and the Court further finds in favor of the Defendant/Counter-Plaintiff on his Counterclaim.
2. The Court finds that the claim of lien filed by the Plaintiff is in the amount of Sixteen Thousand Two Hundred Thirty-Nine ($16,239.00) Dollars, and the Court further finds that said sum represents the amount remaining due upon the contract for the construction of the residence by the Plaintiff for the Defendant, ROBERT RHODES.
3. The Court further finds that Defendant/Counter-Plaintiff has proven damages in the amount of Twelve Thousand Nine Hundred Fifty-Eight and 60/100 ($12,958.60) Dollars, and that this amount is to be subtracted from the total amount remaining due on the contract ($16,239.00), and that the Defendant/Counter-Plaintiff has been unjustly enriched in the amount of Three Thousand Two Hundred Eighty and 40/100 ($3,280.40) Dollars, and said sum is awarded to the Plaintiff under the equity jurisdiction of this Court, for which sum let judgment be entered for the Plaintiff in the amount of Three Thousand Two Hundred Eighty and 40/100 ($3,280.40) Dollars.
4. The Court further finds that Defendant/Counter-Plaintiff is the prevailing party under the Complaint for foreclosure of mechanic’s lien filed by the Plaintiff and that the Defendant is entitled to, and is hereby awarded, reasonable attorney’s fees and costs of this action, and this Court retains jurisdiction to determine reasonable attorney’s fees and costs to be awarded to the Defendant/Counter-Plaintiff as the prevailing party under the Complaint for foreclosure of mechanic’s lien.

On this appeal, S.C.M. claims that the court erred in awarding attorney’s fees to Rhodes.

Section 713.29, Florida Statutes (1979), reads as follows:

713.29 Attorney’s fees. — In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

Relying upon the fact that it recovered $3,280.40, S.C.M. claims that it was the prevailing party. Dynamic Builders, Inc. v. Tull, 365 So.2d 1032 (Fla.3d DCA 1978). In response, Rhodes initially argues that by virtue of the wording of the final judgment, S.C.M. did not recover on its mechanic’s lien; therefore, it cannot come within the provisions of the statute. This is nothing more than semantics. Despite the wording of paragraph 3, it is evident that S.C.M.’s recovery consisted of what remained owing on the contract after deducting Rhodes’ damages. Therefore, to the extent that S.C.M. obtained a money judgment, it was predicated upon a claim for making improvements to the property which was a proper basis for a mechanic’s lien.

Nevertheless, we believe the court properly concluded that Rhodes was the prevailing party. Viewed in the light most favorable to Rhodes, the evidence showed that there was substantial work remaining to be done on the house at the time of closing. This is demonstrated by the fact that the court ultimately held that Rhodes had proven damages of $12,958.60, and S.C.M. has not attacked that conclusion here. Rhodes made an offer to pay S.C.M. $8,119.50 at closing with no strings attached. S.C.M. declined to accept this payment. Yet, as a result of the suit, S.C.M. recovered only $3,280.40. Under these circumstances, S.C.M. could hardly be considered the prevailing party. Cf. Monde Investments No. 2, Inc. v. R. D. Taylor-Made Enterprises, Inc., 344 So.2d 871 (Fla. 4th DCA 1977), in which the court held that when a lienor declined to accept an earlier offer in the same amount as ultimately recovered, it was not entitled to attorney’s fees as the prevailing party.

There is one ancillary issue which requires consideration. In awarding S.C.M. the sum of $3,280.40, the court did not provide for prejudgment interest. S.C.M.’s claim was under a contract and was only unliquidated to the extent that it was subject to being reduced by the amount of Rhodes’ damages. Therefore, ordinarily, S.C.M. would have been entitled to recover interest on the $3,280.40 from November 8, 1978, the date it was due. Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla.App.2d DCA 1978). See Manning v. Clark, 89 So.2d 339 (Fla.1956). Here, however, S.C.M. cannot obtain prejudgment interest because Rhodes’ November 8 tender exceeded the amount that was ultimately determined to be due. See Morton v. Ansin, 129 So.2d 177 (Fla.3d DCA 1961).

AFFIRMED.

BOARDMAN, Acting C. J„ and CAMPBELL, J., concur.

      . We express no opinion on whether we would have reached the same result if Rhodes had conditioned his offer of $8,119.50 upon S.C.M.’s release of further claims against him.

      . While we need not rest our decision on this point, a good argument can be made that when the legislature amended section 713.29 in 1977 (Ch. 77-353, § 11, Laws of Fla.) to refer to the taxing of attorney’s fees “as allowed in equitable actions,” it intended for the courts to have more discretion in deciding who is the prevailing party. In this case, even if Rhodes had not made his unconditional offer at closing, he might reasonably contend that he was the “equitably” prevailing party because he prevailed with respect to more than three-fourths of the money in issue.