author: SHAW, Judge.

text:
    Richard UBER, Appellant, v. STATE of Florida, Appellee.
    No. SS-81.
    District Court of Appeal of Florida, First District.
    April 24, 1980.
    Rehearing Denied May 21, 1980.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SHAW, Judge.

Appellant appeals his conviction of grand larceny. We reverse.

The information charged an offense under § 812.021. Florida Statutes (1977) as follows:

COUNT ONE
[O]n the 25th day of August, in the Year of Our Lord, One Thousand, Nine Hundred and Seventy-Eight at and in Santa Rosa County, Florida, then and there being, did then and there have in his possession, custody or control as a broker, bailee, agent, trustee or as authorized by agreement, goods and chattels of another, to wit: a check, draft or money order, of a value of more than One Hundred Dollars ($100.00) belonging to Donald Dillard and/or Naval Air Norfolk Federal Credit Union and having said property in his custody did appropriate the same to his own use or that of another person other than the true owner or person entitled to it, to wit: Donald Dillard and/or Naval Air Norfolk Federal Credit Union, contrary to Florida Statutes 812.021.

The appellant was given a Winnebago motor home to sell on consignment from Uber’s used car dealership. Dillard purchased the vehicle and financed it with a credit union check made payable to Dillard and Uber’s Auto Mart. The check was deposited in the general business account of Uber’s Auto Mart on the date that it was signed over to Uber’s business. That same day Uber’s wife sent a draft to Nationwide Financial Service which held title. Nationwide notified Uber that there was an error in the amount of the draft as additional interest had accrued, whereupon Uber issued a ten-day sight draft for the correct amount. Prior to the expiration of ten days Uber, who was experiencing economically debilitating business setbacks, notified Nationwide that his general account contained insufficient funds to honor the draft. Nationwide’s manager, at that time, took the position that Uber did not owe anything to Nationwide, but owed Dukes who had placed the Winnebago on consignment. Uber then inquired of Dukes as to his posture regarding the financing of the vehicle. Dukes came to Uber’s place of business and produced a paid-in-full contract, asserting that Uber did not owe him any money. Uber, in an effort to obtain the release of title to Dillard, offered to execute a “floor plan” (an arrangement by which Nationwide would take the money owed by appellant as he sold cars on a consignment basis). Uber testified that he was told by Nationwide that the situation could be worked out after the first of the year (1979). However, in late December 1978, Nationwide filed a civil complaint against Dillard to repossess the Winnebago. Dillard then signed an affidavit of complaint against Uber, causing his arrest. When the story was released to the newspapers the Department of Motor Vehicles had Uber’s bond canceled, which eliminated his business operation.

Proof of felonious intent is essential to a conviction for grand larceny. The burden is on the State to prove such intent with the usual quantum and the question of intent is normally for jury determination. Rosengarten v. State, 166 So.2d 183 (Fla. 2d DCA 1964); Maddox v. State, 38 So.2d 58 (Fla.1947); Masters v. State, 159 Fla. 617, 32 So.2d 276 (1947). In this instance there was a total failure of proof to support a finding of felonious intent. Uber’s act of placing the credit union check in his general business account and sending Nationwide his personal draft has not been shown to be contrary to his normal business practice. This Court in Board of Regents v. Videon, 313 So.2d 433 (1975), recognized:

The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. The intent may be presumed from the facts and circumstances surrounding the act of taking. It is then incumbent upon the taker to go forward with the evidence and show a lack of criminal intent on his part. Such can be done by presenting evidence that it was an honest mistake; that he believed he had a right to apply the property to his own use. When a taking or appropriation to one's own use is with an honest belief that the taker has the right to take the property (to apply it to his own use), there is no larceny, even though the taker may have been mistaken.

Uber’s persistent efforts to obtain the release of title to Dillard negates the requisite larcenous intent. The evidence falls short of that quality necessary to prove guilt beyond a reasonable doubt. The judgment appealed is accordingly reversed.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., dissents without opinion.


source: Caselaw Access Project

author: MELVIN, Associate Judge.

license: Public Domain

text:
    W. B. D., INC., a Florida Corporation, and William B. Dawson, III, Individually, Appellants, v. HOWARD JOHNSON COMPANY, a Maryland Corporation, Appellee.
    No. KK-224.
    District Court of Appeal of Florida, First District.
    April 25, 1980.
    Gerald R. Hart of Spinner, Hart & Cud-dy, and Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellants.
    Robert E. Warren, Neil C. Taylor, Jacksonville, and B. K. Roberts of Roberts, Miller, Baggett, LaFace, Wiser & Richards, Tallahassee, for appellee.
   ON PETITION FOR REHEARING GRANTED

MELVIN, Associate Judge.

The appellants seek to appeal from a judgment based upon a directed verdict in the jury trial that was entered for the .defendant at the close of the plaintiffs’ case. Such order granting a directed verdict is a judicial determination that the plaintiffs at that point have, as a matter of law, presented no evidence which, if believed by the jury, would be legally sufficient to support a verdict for them.

The first hurdle that appellants must clear is the question of this court’s jurisdiction to consider the appeal. The jurisdictional question, strange as it may seem, was not presented by either party to this cause. It was raised by this court on its own motion upon further review of the record in connection with petitions for rehearing.

The record reveals that, on April 20,1978, at the conclusion of the presentation of plaintiffs’ evidence, the defense motion for a directed verdict was made and the court announced its decision to grant such motion. A motion for new trial was thereafter presented and denied. From that point forward the plaintiffs and defendants proceeded toward appellate review on the assumption that a final judgment had been entered.

On February 1, 1980 this court Sua Sponte, entered its order directing the attention of counsel to the absence of a final judgment and requested counsel for all parties to be prepared to argue the question of jurisdiction before the court on the date the cause had been set for argument on the pending motion for re-hearing.

Counsel for appellants on the oral argument date, February 11, 1980, filed a motion to supplement the record by permitting a final judgment that was rendered in the cause by the trial court on February 8,1980, to be made a part of the record on appeal. The court has granted that motion. The clerk of the trial court has now certified to this court that neither party has filed any type of motion addressed to such final judgment. The time for filing any such motion has now expired. We come now to the heart-beat of the jurisdictional issue. What is the legal effect of the filing of a notice of appeal on June 21,1978, as the same relates to the final judgment rendered thereafter on February 8, 1980? In Williams v. State, 324 So.2d 74, 79 (Fla.1975), it was held:

“Leaving aside the question of obtaining supersedeas bond, we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.”

See also, Bank of Port St. Joe v. State, 362 So.2d 96, 98 (Fla.App. 1st DCA 1978). Appellee urges that the case of State v. Wells, 326 So.2d 175 (Fla.1976) is dispositive of the jurisdictional issue and is the latest pronouncement by the Supreme Court of Florida on this subject. With this position we do not agree. In State v. Wells, Justice Hatchett noted, at page 176, that no written order had ever been entered in the cause.

We hold that, upon the filing of the final judgment in this case, even though the same proceeded with lead-footed delay, the notice of appeal that was previously filed thereupon came out of limbo and became effective to confer jurisdiction in this court over the controversy. This case has been thoroughly briefed and argued as to the jurisdictional question, as well as to the merits of the cause. It would be a useless and unjustifiable squandering of attorney and judicial labor, as well as expense to parties litigant, to require the parties to go through the useless and expensive process of again briefing this cause. Such procedural gesture would assign more importance to FORM,than to SUBSTANCE. We therefore adopt, as being effective, the records and briefs filed in this cause and have again considered the case in the light of argument of counsel for each party. Having jurisdiction to proceed, we will proceed to do so.

The parties will be referred to here as they were identified in the trial court.

Plaintiffs filed their complaint against Howard Johnson Company, a corporation, and it was couched in two counts. The first count charged breach of contract and the second count charged fraud and deceit for which compensatory and punitive damages were sought. After discovery had been completed, each party moved for summary judgment and each motion was denied. On different occasions the court granted the defendant leave to amend its answer to add various defenses, among which were the statute of frauds, asserting parol evidence rule, and alleging that the plaintiffs were seeking to vary the terms of a written instrument by parol evidence. To these affirmative defenses, plaintiffs presented the issue, among others, of waiver, expressed or implied.

The record reveals that, at the conclusion of plaintiffs’ case, the defendant made the usual motion for a directed verdict. Previously the trial court had stated that it recognized that factual issues had been presented that would have to be presented for a jury determination. However, upon presentation of defendant’s motion, the court granted the same stating:

“I’m going to grant the motion to dismiss (by the defendant) in this case. Granted on three grounds. First, outside the scope of the lease and the license. And, two, statute of frauds applies in this case. That’s my decision.”

In due season plaintiffs’ motion for a new trial was presented and denied by the court.

From the evidence submitted by the plaintiffs to the jury, the jury may have found:

That the plaintiff Dawson was the owner of a tract of oceanfront property and had entered into a written franchise agreement with Howard Johnson whereby, for an initial consideration of $20,000, together with other considerations, Dawson had contracted to build a motel, lounge, and restaurant. Howard Johnson was to operate the restaurant and lounge. A written lease was executed on the same date as the franchise agreement, in which the defendant agreed to pay the plaintiff Dawson rent based upon a percentage of the income and a guaranteed minimum. Plaintiff Dawson was to operate the motel under the name of Howard Johnson and pay to the defendant a percentage of the income and other stated fees. A paragraph in the lease agreement prohibited Dawson from selling food or alcoholic beverages on the motor lodge premises and the agreement further provided that the same could not be modified or changed except in writing signed by the parties.

By the agreement, Dawson was obligated to construct a building, “Series 84LL, with cocktail lounge” and the typical plans for such building were approved by Dawson. The plans referred to an 84LL for the restaurant and lounge to be incorporated in the motor lodge plans and they were allegedly used by Dawson’s architect. The restaurant and lounge plans provided for a seating capacity of 154 seats and occupied an area of approximately 5,100 square feet. Based upon these plans, it is alleged that Dawson secured a loan commitment. Detailed plans and specifications were to have been submitted within the stated time. Howard Johnson allegedly approved the same, but immediately on December 13, 1971, ordered a stop to any beginning of construction because of the “uncertainties” of purchasing a liquor license for this location. It was alleged to be the position of Howard Johnson, “If it is not possible to purchase a license, the style of the restaurant might have to be changed.” When the stop order referred to was entered, Dawson allegedly ceased work on the property location where he had been engaged in preparing the site, such as building a sea wall. He alleges that he then entered into a further discussion with Howard Johnson about the problem that it was having in obtaining a whiskey license.

Dawson, according to the testimony, went to Braintree, Massachusetts, and talked with the architects of defendant about their beverage license problem. Dawson testified that he was told by these representatives of defendant, that, in order for Howard Johnson to qualify for an alcoholic beverage license in the state of Florida, the restaurant, which both parties had previously approved for 154 seats, would have to have a seating capacity of 200 seats. That, according to Howard Johnson, would allegedly require an increase in the area of the restaurant and also an increase in additional parking spaces. Dawson claimed that he accepted this representation and relied on it. He stated he previously had received a letter from Howard Johnson in the year of 1970 advising that he could rely implicitly on Howard Johnson’s officials because they were experts in the hotel field and that defendant realized that Dawson was not particularly knowledgeable. Dawson claimed that he, at first, asked for additional rent for the 2,200 square feet that defendant now needed for the restaurant, lounge, and extra parking spaces, but Howard Johnson would not agree to that. Dawson testified that it was then agreed that he would give Howard Johnson the additional space, rent free, in exchange for Howard Johnson’s agreement that Dawson could sell alcoholic beverages in the motor lodge area and could construct facilities thereon for such purpose. This alleged understanding was not thereafter reduced to writing, but architectural drawings thereof 'were allegedly prepared, viewed by representatives of both parties and testimony offered by the plaintiffs was to the effect that the agents of Howard Johnson specifically agreed to such construction by Dawson, such agreement being based upon the consideration of Dawson’s granting to Howard Johnson the additional area space previously referred to, rent free.

The plans for Dawson’s two-story poolside cocktail lounge were allegedly exhibited by Dawson’s architect to the architects representing Howard Johnson and testimony was offered that they then confirmed the earlier alleged agreement that Dawson was entitled to construct and operate such lounge. There was also testimony that, at a meeting between architects for the parties, defendant’s architects signed the motor lodge plans with the pencil sketch of Dawson’s bar drawn thereon. Structural changes allegedly were made in the plans to accommodate the increased seating capacity and parking area for the benefit of the defendant. Also in the plans Dawson’s lounge and bar referred to, were allegedly shown to include the extra plumbing and electrical wiring. Testimony was offered that all during the construction of the hotel, restaurant, and lounge, including the outside beverage lounge, that Dawson testified the defendant had agreed that he could have, in exchange for the extra rent free space referred to, the construction inspector for Howard Johnson, from the time of the construction of the hotel began until the work was completed, inspected the work and approved it. There was further testimony that drawings of all the changes were submitted by Dawson’s architects to the defendant’s architects and that at no time was any objection made by the defendant’s representatives to the outlined proposed construction by Dawson of his lounge and recreation area. There was also testimony presented to the court and jury that Dawson expended over á million dollars in additional money in the construction of the hotel and his poolside lounge in reliance upon the defendant’s alleged agreement that Dawson could sell alcoholic beverages. There was testimony presented that Dawson was advised by defendant’s architect that he could go ahead and build the poolside bar according to the poolside recreation building plans. Testimony presented to the court was to the effect that Dawson had to borrow further money in connection with the construction of the hotel, restaurant, lounge, and poolside bar. Dawson allegedly applied for his liquor license and was notified by the Howard Johnson counsel not to proceed. It is alleged that Howard Johnson changed its posture with reference to its alleged independent agreement with Dawson that he could sell alcoholic beverages and they proceeded, by injunction, to prevent him from doing so. It was testified that, at this point, Dawson was heavily involved with a mortgage company and, at their insistence, Dawson agreed to the tern-porary injunction, but retained the right to litigate the matter at some later date. The record reflects that Dawson defaulted in his mortgage obligation bringing about foreclosure and the loss of his investment.

The foregoing claims on the part of the plaintiffs notwithstanding, the court, at the close of plaintiffs’ case, denied plaintiffs their right to have a jury determination of the alleged issues of fact and the court, deciding such issues of fact, directed a verdict for the defendant.

The trial court apparently based its order granting the directed verdict on the court’s understanding of the application of the pa-rol evidence rule and the statute of frauds to the facts of this case. Neither the statute of frauds nor the parol evidence rule is applicable and we reverse.

The plaintiffs had presented before the jury two factual issues for determination. One issue was whether a new independent oral contract had been brought into existence that had been based upon a valuable consideration, and which had, allegedly, been fully performed by Dawson, and, allegedly, had been breached by Howard Johnson. Also presented was the factual issue as to whether the defendant, by its conduct, had waived its contract exclusive rights to sell alcohol in accord with the terms of the written documents. As to such issues, it is strongly urged by the defendant that the position of the plaintiffs is not viable for the reason that the written documents vest in Howard Johnson the exclusive right to sell alcoholic beverages upon the motel premises, and further, provide that such agreements may not be altered except in writing signed by both parties. The logic of the defendant continues to the effect that, in absence of a written alteration of the documents signed by both parties, there can be no change with reference to defendant’s exclusive alcoholic sales rights on the motel premises and that a variation or change in that subject matter may not be established by the plaintiffs through the avenue of oral testimony.

We have pointed out the contention of the plaintiffs that the alleged oral contract, by which the plaintiffs granted additional seating space in the restaurant and parking space, was fully performed by the plaintiffs and that the same was allegedly breached by Howard Johnson.

It is well established that the statute of frauds may not be utilized as a defense to a verbal contract that has been fully performed on the part of the person claiming the benefit thereof. Dionne v. Columbus Mills, 311 So.2d 681 (Fla. 2d DCA 1975). The statute of frauds applies only to executory and not to executed contracts. Miami Beach First National Bank v. Shalleck, 182 So.2d 649 (Fla. 3d DCA 1966). When an oral contract has been fully performed by one party, the statute of frauds may not be employed as a defense, even though the subject matter of the contract is the conveyance of an interest in land. In Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937), the court pointed out that such provisions in the statute of frauds applies only to contracts that are not to be performed on either side within the period of a year and that such provision has no application to contracts which were fully performed within the year on the part of either side. In this case, the jury may have found that Dawson had performed his portion of the verbal contract at the very time that he agreed to, and did, grant additional seating space and parking space to the defendant. The jury may have further found, under the testimony, that Howard Johnson accepted the rent free benefits of Dawson’s performance under a new oral agreement and, therefore, Howard Johnson had waived and/or was estopped to assert its said written exclusive contract rights or the statute of frauds and thereby escape performance on its part. In Bellaire Securities Corporation et al. v. Brown, 124 Fla. 47,168 So. 625; 639 (1936), the Supreme Court of Florida held that a party may waive any right to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution. The court further held that such ruling was not in conflict with the rule, that the terms of a sealed instrument can not be changed by parol evidence. In Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263, 265 (1945), the Supreme Court of Florida further held that:

“The law appears to be well settled that the statute of frauds cannot be invoked where non-performance of the original terms has been occasioned by the oral modification and a contract as modified has been fully performed.”

It was Dawson’s contention that he had fully performed his part of the oral contract, that Howard Johnson accepted the benefits of such performance and then breached the agreement to be performed by Howard Johnson.

In Thomas N. Carlton Estate, Inc. v. Keller et a1., 52 So.2d 131, 133 (Fla.1951), the Supreme Court of Florida ruled:

“ ‘A waiver of a covenant by the party for whose benefit it is inserted may be made by parol.’ ”

The court then pronounced the rule:

“When a party waives a right under a contract he cannot, without the consent of his adversary, reclaim it.” (emphasis supplied)

From all of the authorities above-cited, it is abundantly clear that an executed contract based upon an oral agreement does not collide with the statute of frauds. The jury could have found that such an oral independent contract, fully executed, had come into existence as contended by Dawson. Further, the jury could have found that Howard Johnson, by its conduct, had waived the provisions in the written contract relating to its exclusive right to sell alcoholic beverages, and that it could not reclaim such exclusive right absent the consent of Dawson.

Count II of the complaint charged Howard Johnson with fraud and deceit for which money damages were sought. It is well established that the statute of frauds may not be used to sweep aside such claims when the same are based upon positive testimony. In Connelly v. Merritt, 273 So.2d 7 (Fla.App. 1st 1973), the court considered a situation in which the plaintiffs contended that the defendants had made certain false representations based upon which the plaintiffs were persuaded to purchase real estate lots. Plaintiffs alleged that the representations were that access would always be available to them to a lake and that such access would be accomplished as a result of the defendants reserving and maintaining a waterfront lot for such purpose. Defendants resisted this contention and urged that such representations, if considered to be otherwise valid, were precluded by the application of the statute of frauds. The court turned aside this contention and held that such statute does not operate as a defense to a claim for damages for false, oral representations which are alleged to result in money damages.

In the case here reviewed, Dawson did not seek to enforce any right or interest in real property. He sought only to enforce a claim for damages based upon an alleged breach of contract and alleged fraud and deceit said to have been practiced upon him by Howard Johnson. We hold that the statute of frauds does not stand as a shield before this type of claim.

The jury could have found that Dawson’s claim of consideration on his part for the oral contract, relating to additional rent free concession, was a matter of no small financial significance. From the testimony, the jury could have found that the additional space for the seating in the restaurant and lounge had a value of approximately $160,000 and the additional parking spaces had a rent value of $21,000.

While it may be that the plaintiffs did not present evidence which would have been found to be credible by the jury and, therefore, would not have been acceptable by the jury as establishing an independent oral contract or establishing a waiver of the original contract provisions prohibiting Dawson from selling alcoholic beverages, it was the right of this plaintiff to have his cause determined by the jury and not by the judge. The learned trial judge, therefore, erred in substituting his judgment relating to the alleged facts for the judgment of the jury and thus displacing the function of the trial jury in our judicial system. We reverse with directions to grant a new trial and to proceed in accord with the views expressed in this opinion.

McCORD and SHIVERS, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Clark McPHAIL, Individually, Diane McPhail, Individually, and Clark McPhail as Personal Representative of the Estate of Michelle Marie McPhail, Deceased, Appellants, v. G. Frank JENKINS, D.D.S., Appellee.
    No. NN-463.
    District Court of Appeal of Florida, First District.
    April 25, 1980.

      Charles B. Lembcke of Datz, Jacobson & Lembeke, Jacksonville, for appellants.
    Carle A. Felton, Jr., and Noah H. Jener-ette, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellants, the McPhails, seek reversal of an order dismissing their complaint for damages arising from the death of their daughter occasioned by her alleged over-sedation by appellee, Dr. Jenkins. This tragic event occurred while Dr. Jenkins was removing the wisdom teeth of the McPhail’s daughter, who was only fifteen days past her eighteenth birthday on April 12, 1977, the day of her death. The McPhails assert that it was error for the trial court to dismiss their wrongful death claims for mental pain and suffering, contending that the legislature, by changing the age of majority from twenty-one to eighteen (Section 743.07, Florida Statutes (1973)), never intended to reduce the age limit for recovery for wrongful death of dependent unmarried children from twenty-one to eighteen years under the Wrongful Death Act, Section 768.18(2), Florida Statutes (1972). They further maintain that the actions of Dr. Jenkins were so outrageous they should be allowed to recover for mental suffering and distress even unconnected with physical injury. Upon careful consideration of these and other contentions advanced by appellants, we must conclude that the trial judge was correct in terminating this litigation. We affirm.

The Wrongful Death Act, enacted in 1972, defined the term “minor” to mean “unmarried children under twenty-one years of age.” Section 768.18(2), Florida Statutes (1972). However, in 1973, the legislature changed the age of majority from twenty-one years to eighteen years. Section 743.07, Florida Statutes (1973). The Supreme Court of Florida, in Hanley v. Liberty Mutual Insurance Company, 334 So.2d 11 (Fla.1976), ruled that the legislature, by amending the Emancipation Act, intended to reduce the age of majority for wrongful death purposes from twenty-one years to eighteen years. Appellants contend that the Supreme Court misread the legislative intent; and in support of this view they point to the 1977 amendment to Section 768.18(2), Florida Statutes, which provides that the term “minor,” for wrongful death purposes, shall include “dependent unmarried children under 21 years of age, notwithstanding the age of majority.” Although appellants recognize that statutes are not to be construed retroactively, they contend that since Section 768.17 provides that provisions of the wrongful death statute are remedial, it follows that the 1977 amendment to Section 768.18(2) may be applied retroactively, citing Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978). They further contend that denial of a legal remedy, under the circumstances, violates Article I, Section 21, Florida Constitution. Klugar v. White, 281 So.2d 1 (Fla.1973), and Overland Construction Company v. Sirmons, 369 So.2d 572 (Fla.1979).

Notwithstanding the contrary position taken by appellants, we conclude that this court is bound by the decision of the Florida Supreme Court in Hanley v. Liberty Mutual Insurance Company, supra. This court is without power to overrule Supreme Court precedent. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). The decision in Hanley, therefore, stands as the applicable judicial interpretation of the legislation controlling at the time the cause of action arose. We are not permitted to give the 1977 amendment to Section 768.18(2) retroactive application in the absence of language indicating its retroactive application in clear and explicit terms. Foley v. Morris, 339 So.2d 215 (Fla.1976); Carter v. GEICO, 377 So.2d 242 (Fla. 1st DCA 1979); Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975). Village of El Portal, relied upon by plaintiffs, does not authorize a contrary view, since that case dealt with a statute which provided for retroactive application. Furthermore, as to the constitutional argument, we must point out that at common law there was no right of recovery for wrongful death, and we thus distinguish Klugar v. White, which was concerned with legislative abrogation of a common law right without providing a substitute remedy-

We must also reject appellants’ contention that the actions complained of were so outrageous as to imply malice, so as to authorize recovery under the principles announced in Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950), and Knowles Animal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla. 3rd DCA 1978). We are of the opinion that the allegations of the second amended complaint, even if taken as true, are consistent only with the theory of negligence, and they do not reasonably imply malice or the entire want of care or attention to duty, or great indifference to the person of others such as was held to warrant recovery in Kirksey v. Jernigan. See Brooks v. South Broward Hospital District, 325 So.2d 479 (Fla. 4th DCA 1975), Gilliam v. Stewart, 291 So.2d 593 (Fla.1974), and Ford Motor Credit Corp. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979).

We must also hold that appellants are not entitled to recovery based upon the theory that Dr. Jenkins breached his contractual responsibility to them, as parents of the deceased child. Even if we assume the existence of a contractual duty enforceable by appellants, the breach of that duty is the tortious failure to use reasonable care, and we find no authority for avoidance of the limitations of the Florida Wrongful Death Act by couching the complaint in terms of a contract action. No matter what we consider the basis for the action, the claim is for damages resulting from wrongful death, recovery for which is governed by the statute.

We find no error in the trial court’s dismissal of Counts One and Two, nor in the striking of the claims for mental pain and suffering from Count Three.

The order appealed from is AFFIRMED.

McCORD and SHIVERS, JJ., concur.


author: WENTWORTH, Judge.

text:
    FIDELITY & CASUALTY CO. OF NEW YORK (Through Underwriters Adjusting Company), Appellants, v. Donald COOPER, Appellee.
    No. QQ-419.
    District Court of Appeal of Florida, First District.
    April 25, 1980.

      B. C. Pyle of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    George J. Adler & David M. Hammond of Meyers, Monney & Adler, Orlando, for ap-pellee.
   WENTWORTH, Judge.

The employer/carrier appeals a worker’s compensation order which we affirm. The claimant’s left hand was severed in an industrial accident, and he subsequently purchased a motorcycle for transportation to and from work. Because of the loss of the claimant’s left hand, it was necessary that the motorcycle be modified at a cost of $136.95. The claimant paid for such modifications, and the judge of industrial claims ordered the employer/carrier to reimburse the claimant for these costs. We hold that such modifications were properly awarded as “other apparatus” which “the nature of the injury . . . may require . . .” § 440.13(1), Florida Statutes.

Where an industrial injury necessitates the modification or substitution of an automobile in order to accommodate a wheelchair or artificial member and to restore in part a claimant’s former ambulatory ability, such costs may be awarded as “other apparatus” pursuant to § 440.13(1). Walt Disney World v. Morgan, IRC Order 2-3818 (May 22,1979). In Jordan v. Florida Industrial Commission, 183 So.2d 529 (Fla. 1966), the Court stated, in applying § 440.-13(1), that “the employer should bear the cost of returning the employee to an employable status . . .

While a § 440.13(1) award will usually require medical evidence as to necessity, see e. g., Goldsmith v. Buena Vista Construction Co., 304 So.2d 110 (Fla.1974), in the present case the non-medical evidence clearly establishes that the nature of claimant’s' compensable injury and disability caused his obvious need for modifications to the motorcycle, which was purchased for work-related transportation. Although the claimant is able to drive an automobile without modification, the decision to purchase a motorcycle was properly determined to be dictated by valid and reasonable economic considerations.

We conclude that the present case is controlled by the same considerations as those involved in Walt Disney World v. Morgan, supra, and that the modifications necessitated by the loss of claimant’s left hand are “other apparatus” as that term is used in § 440.13(1). See § 440.49(1), Florida Statutes, for additional provisions governing claims for specific rehabilitation benefits; cf. American Fire & Casualty Co. v. Capps, IRC Order 2-3205 (July 25, 1977); Cover v. TG&Y, 377 So.2d 792 (Fla.lst DCA 1979); Firestone Tire & Rubber Co. v. Vaughn, 381 So .2d 740 (Fla.lst DCA 1980).

The order appealed is accordingly affirmed.

McCORD and LARRY G. SMITH, JJ., concur.


author: WENTWORTH, Judge. LARRY G. SMITH, J.,

text:
    TOTAL APPLIANCE REPAIRS AND Allstate Insurance Co., Appellants, v. Elliott NELSON, Appellee.
    No. QQ-469.
    District Court of Appeal of Florida, First District.
    April 25, 1980.
    K. P. Jones, Fort Lauderdale, for appellants.
    Kevin A. Malone, of Krupnick & Campbell, Fort Lauderdale, for appellee.
   WENTWORTH, Judge.

The employer/carrier appeals an order of a judge of industrial claims requiring payment of $900 damages to claimant/appellee. That amount was found to be due because claimant, in reliance on an oral contract with employer/carrier, paid a helper $150 weekly while receiving temporary disability compensation between the date of his retroactively determined maximum medical improvement on June 13, 1978, and the date on which the doctor first communicated that fact on August 4, 1978. The carrier unilaterally reclassified temporary benefits already paid and credited that amount against permanent disability compensation payable as of June 13, 1978.

Appellant contends 1) the judge did not have legal authority to enforce the contract by award of damages, and 2) there was no basis for an award of damages. We find the order for damages to be erroneous but conclude that the amount awarded should be affirmed in part for reasons other than those stated in the order. Escarra v. Winn Dixie Stores, 131 So.2d 483 (Fla.1961); Croft v. Edwards, 353 So.2d 669 (Fla. 1st DCA 1978); Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976). We therefore remand with directions that the claim be granted to the extent that it was for reclassification of benefits and award of permanent disability benefits for the period in question.

The order on appeal finds:
The Claimant/Employee testified that on May 12, 1977, he suffered an injury to his arm and shoulders. After receiving approximately six weeks of temporary total benefits, the Claimant returned to work and worked at full time status until March, 1978. At that time, the Claimant/Employee was advised by his physicians that he could not continue with his employment unless he had a helper to assist him with the lifting and other heavy aspects of his job.
In March, 1978, the Employer, the Employer’s Insurance Carrier, and the Claimant, entered into an agreement by which the Claimant/Employee would continue working at full pay, but would be required to pay for an assistant at the rate of $150.00 per week. The Claimant was also to receive $108.80 per week from the Compensation Carrier in the form of temporary partial benefits .
In reliance on this contract, the Employee continued working for his Employer and paid the helper $150.00 per week.
If the Employer/Carrier had not entered into this agreement with the Employee, or if the Employee had immediately been notified of the change from temporary partial to permanent partial benefits, the Employee could have received permanent partial benefits and gone to another job where he could have received full salary without having to pay a helper.
The Court finds that as a result of his reliance on the contract with the Employer/Carrier, the Employee suffered a loss of $900.00 in the form of money paid by the Employee to his helper.

The authority to construe contracts has been repeatedly recognized under the statutory language vesting in the judge (now deputy) “full power and authority to hear and determine all questions in respect to such claims.” § 440.25(1), Florida Statutes. See Sardella v. Champion Manufacturing Co., 273 So.2d 369 (Fla.1973); Lopez v. Airlift International Inc., 270 So.2d 1 (Fla. 1972); Fireman’s Fund Ins. Co. v. Rich, 220 So.2d 369 (Fla.1969); Housknecht v. City of Dania, IRC Order 2-3276 (Nov. 15, 1977). But that authority has in each case been exercised for the purpose of determining some claim under the statute and not for determining damages for breach of contract per se, which damages in the present case also appear to be based on somewhat speculative evidence of claimant’s alternative potential earning opportunities.

In any event, the claim on which the hearing was scheduled in this case was for reclassification of benefits. We conclude from examination of decisions on the point that, on the record evidence, the claim will support the award of benefits in addition to those voluntarily paid to claimant. See Schei v. City of Miami, 193 So.2d 170 (Fla.1967); The Boeing Co. v. Bailey, IRC Order 2-3869 (July 30, 1979); Tampa Wholesale Co. v. Gores, IRC Order 2-3720 (Feb. 26, 1979); Perkins v. Heller Brothers Packing Corp., IRC Order 2-3542 (Sept. 20, 1978); Diplomat Hotel v. Badini, IRC Order 2-3494 (Aug. 2, 1978). Since the excess payment of temporary disability compensation in this ease was not properly creditable against permanent partial disability compensation due upon maximum medical improvement, the claim for relief against appellant’s unilateral action should have been granted, and permanent benefits awarded for the period in question.

The order is accordingly reversed in part and the cause remanded for further proceedings consistent herewith.

McCORD, J., concurs.

LARRY G. SMITH, J., concurs and dissents with opinion.

LARRY G. SMITH, J.,

concurring and dissenting.

I concur in the opinion except for that portion denying claimant the full benefit of the contract with his employer .and the carrier.


author: PER CURIAM. SCHWARTZ, Judge

text:
    J. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No 78-2201.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The adjudication of delinquency under review is affirmed upon a holding that: (a) the evidence at trial was sufficient to support the adjudication of delinquency, D.S.H. v. State, 323 So.2d 292 (Fla. 3d DCA 1975); and (b) no reversible error has been shown relative to the trial court’s rulings regulating the cross examination of the state witness Frank Bates. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940); § 59.041, Fla.Stat. (1979).

SCHWARTZ, Judge

(dissenting).

J.S. was adjudicated delinquent upon a finding that he had burglarized a shed and stolen a motorcycle which belonged to his best friend, Jerry Borgert. The only incriminating witness against him was Frank Bates, who testified that he had seen the respondent with the motorcycle at the scene, a short time after the theft. During the course of Bates’ cross-examination, defense counsel attempted to inquire concerning the relationship between the three boys and, specifically, whether “some jealousy developed between you and Jerry Borgert and [J.S.].” The trial judge sustained the prosecution’s objections to these questions. I believe that this ruling was prejudicially erroneous. The proposed line of inquiry was directly pertinent to Bates’ possible bias and motive for testifying against the respondent, and thus to the all-important issue of his credibility. The appellant’s right of cross-examination was therefore improperly restricted below. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Kufrin v. State, 378 So.2d 1341 (Fla. 3d DCA 1980); Holt v. State, 378 So.2d 106 (Fla. 5th DCA 1980); Greene v. State, 376 So.2d 396 (Fla. 3d DCA 1979); Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1978), cert, denied, 374 So.2d 101 (Fla. 1979). On this ground, I would reverse the adjudication and remand the cause for a new hearing.


author: BASKIN, Judge.

text:
    The BANK OF MIAMI, a Florida Banking Corporation, Appellant, v. Jose ARMENTEROS and Miriam Armenteros, his wife, Appellees.
    No. 79-1736.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Layne & Brill and Richard Bernstein, Miami, for appellant.
    No appearance, for appellees.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   BASKIN, Judge.

This appeal is predicated upon the trial court’s determination that the reverse side of a promissory note was executed in the signer’s corporate capacity. We hold that the trial court erred in excluding parol evidence concerning intent and reverse.

The Bank of Miami sued to recover on a collateral note executed by A & H Plumbing Corporation, Jose Armenteros, President, and allegedly personally guaranteed by Jose Armenteros and Miriam Armente-ros, his wife. Although the bank prevailed against the corporate defendant, it was unsuccessful against the individual defendants. The trial court found that Jose Ar-menteros had executed not only the face of the note as president, but he had also executed the guarantee on the reverse side of the note as president.

The bank maintains the reverse side of the note constituted a separate contract, that this separate contract was ambiguous, and that it should have been permitted to present parol evidence just as Jose Ar-menteros was permitted to explain the intent behind the signature on the guarantee. We agree.

The ambiguity on the reverse side of the note appears in the addition of the word “President” after the signature above the typed language “Jose Armenteros”. Parol evidence is admissible to explain an ambiguity appearing on the face of the note. Placet, Inc. v. Ashton, 368 So.2d 404 (Fla. 3d DCA 1979); Havatampa Corp. v. Walton Drug Co., Inc., 354 So.2d 1235 (Fla. 2d DCA 1978); Giacalone v. Bernstein, 348 So.2d 679 (Fla. 3d DCA 1977); Dynamic Homes, Inc. v. Rogers, 331 So.2d 326 (Fla. 4th DCA 1976); Speer v. Friedland, 276 So.2d 84 (Fla. 2d DCA 1973); Bryant v. Food Machinery and Chemical Corporation Niagara Chemical Division, 130 So.2d 132 (Fla. 3d DCA 1961). Thus parol evidence should have been admitted to resolve the ambiguity-

To avoid personal liability by an agent, the agent must clearly indicate the understanding of the parties in the form of his execution of a contract or in the contract itself. Betz v. Bank of Miami Beach, 95 So.2d 891 (Fla.1957); Havatampa Corp. v. Walton Drug Co., Inc., supra.

The ambiguity on the face of the reverse side of the note is corroborated by the fact that the note is a renewal of a prior note signed on its reverse side by Jose Armente-ros in his individual capacity as well as by the fact that his wife guaranteed his payments.

For the foregoing reasons, we reverse the decision of the trial court and remand for proceedings in accordance with this opinion.


author: NESBITT, Judge.

text:
    Harriet Britt BUCHMAN, Appellant, v. Eric Benjamin BUCHMAN, Appellee.
    No. 79-1810.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Fine, Jacobson, Block, Klein & Colan and Joseph H. Serota, Miami, for appellant.
    Andrew C. Pavlick and Roberta J. Fox, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

We reverse the provision of the final judgment of dissolution which required the wife to pay $100 per month to the husband as permanent periodic alimony.

The husband did not appear at the final hearing and no evidence was adduced on his behalf other than a social security certificate, admitted by stipulation, indicating that he was 100% disabled. Testimony indicated the husband received monthly benefits from social security in the amount of $596. Testimony also indicated that the wife had a net monthly income of $626.78. She was awarded custody of their minor child which therefore entitled her to derivative monthly social security benefits for the minor of $223. Her testimony indicated that monthly expenses for her and the child exceed the sum of her earnings and the social security payments.

Proof of 100% disability did not constitute proof of the husband’s need for alimony. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); George v. George, 360 So.2d 1107 (Fla. 3d DCA 1978). In this case, the parties have essentially the same earning capacity. The wife’s ability to pay alimony is an essential consideration that must be demonstrated before a trial court may impose that obligation upon her. DeHart v. DeHart, 360 So.2d 1285 (Fla. 2d DCA 1978); Lytton v. Lytton, 289 So.2d 17 (Fla. 2d DCA 1974). Moreover, the award of custody of the child to the mother was a factor to be considered by the court in determining the proper amount of alimony. Seale v. Seale, 350 So.2d 96 (Fla. 1st DCA 1977).

The record in this case indicates that there was a complete absence of evidence to support either the husband’s need or the ability of the wife to pay alimony. Absent such a showing, it was error to impose permanent periodic alimony obligations upon the wife. Reardon v. Reardon, 355 So.2d 207 (Fla. 1st DCA 1978); Ross v. Ross, 321 So.2d 443 (Fla. 3d DCA 1975).

This provision of the final judgment of dissolution is reversed. In all other respects, the judgment under review is affirmed.


author: COBB, Judge. ORFINGER, Judge,

text:
    John STRICKLAND, Appellant, v. William H. ROBERTS, Jr., et al., Appellees.
    No. 00-300/T1-127.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.

      A. Ann Arledge and Lee S. Damsker of Gordon & Maney, P. A., Tampa, and Clinton A. Curtis, P. A., Lakeland, for appellant.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P. A., Ocala, for appellees.
   COBB, Judge.

This appeal challenges the propriety of a summary judgment entered for the defendant Roberts, whom the plaintiff had sued for negligence based on a water-skiing accident at a church summer camp lake. Roberts was director of the camp, and Strickland, an experienced slalom skier, was in charge of water-ski activity at the camp.

On the day of the accident, Strickland asked Roberts to pull him around the lake, which Roberts did. On the first loop around the lake, Strickland swung out to the side of the boat and turned his ski to spray some youngsters sunbathing on the dock. On the second lap around the lake Strickland again swung out to the side of the boat to cause a spray. This time he struck the last piling on the dock, and was seriously injured.

Strickland sued Roberts, contending that the latter’s failure to have a ski watcher on the boat was a violation of Section 371.-54(1), Florida Statutes, and, as such, was negligence per se. Strickland also claimed it was a violation of Section 371.54(4), Florida Statutes, for Roberts to operate the boat close enough to the dock for Strickland to swing out on the ski rope and hit it.

Roberts argued, and the trial court agreed, that even if there were negligence per se resulting from violation of Section 371.54, that negligence, as a matter of law, was not a proximate cause of the injury. Plaintiff relied on dcJesus v. Seaboard Coastline Railroad Co., 281 So.2d 198 (Fla. 1973); the defendant relied upon Burton v. Varner, 296 So.2d 641 (Fla. 3d DCA 1974).

In its final summary judgment, the trial court stated:

4. The Plaintiff was a competent, proficient and experienced waterskier as is shown by his testimony concerning his ability to utilize a slalom or single ski for a period of approximately eight years. With the slalom ski, Plaintiff testified that he has greater maneuverability than would be had utilizing two skis and likewise afforded him the ability to jump the wake behind the boat traveling rapidly from one side to the other across the wake in a criss-cross pattern. Plaintiff further testified that with the use of the slalom ski, he can control himself, his position and direction independent of the boat which merely provides pull through the water. Likewise, he has the ability of stopping in a short distance by dropping the rope and depressing the back of the ski and raising the front of the ski.
5. At the location where the incident occurred, the boat operated by Defendant was traveling in a straight direction and was neither going into nor coming out of any turns but was paralleling the dock at the camp. The action of Plaintiff in propelling himself into the piling was solely as a result of his failure to maintain proper watch for the location of the dock or through error in judgment while spraying the dock with water after he had directed his ski out of the boat’s wake. (R. 64)

On the basis of the undisputed evidence before the trial court, we agree that there was no causal relationship between any actions or conduct by the defendant and the injury which the plaintiff inflicted upon himself. See Landers v. Miiton, 370 So.2d 368 (Fla.1979); Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965). The reliance by the plaintiff on the violation of subsection (1) of the applicable statute is unavailing because the uncontroverted evidence is that Roberts was observing Strickland at the time the latter skied into the piling; in regard to subsection (4), no evidence whatsoever was presented to the trial court to indicate that Roberts operated the boat in a manner that caused Strickland to collide with the piling. The evidence was clear that Strickland intentionally skied as close as possible to the dock to spray water on it, as he had done many times in the past.

There was another basis for entry of the summary judgment, although it was not articulated by the trial court. One of the exceptions to the merger of contributory negligence and assumption of the risk set out in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977) is contact sports. Normally, water-skiing would not be considered a contact sport. The uncontroverted evidence in the instant case, however, is that Strickland was injured while engaged in an aberrant form of the sport: swinging in as close as possible to a stationary dock for the purpose of spraying water on sunbathers. He had frequently engaged in this “sport” — indeed, he had done so on the immediate preceding turn around the lake before his own misjudgment carried him into a corner piling of the dock. There is absolutely no evidence that the manner in which the boat was operated caused the mishap, other than the fact that it furnished Strickland the momentum to play his game. The risk of hitting a dock inheres in the sport of narrowly missing it. Strickland, having assumed the risk of his game, played it once too often and lost. See Annot., 8 A.L.R.3d 675 § 6 at 684 (1966). The trial judge correctly entered summary judgment, and it is AFFIRMED.

SHARP, J., concurs.

ORFINGER, J., dissenting with opinion.

ORFINGER, Judge,

dissenting.

In my opinion, the appellees have not carried the burden which the law imposes on them to entitle them to a summary judgment. The movant for a summary judgment has the burden of conclusively proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. Holl v. Talcott, supra; Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1975). The burden is especially heavy in negligence cases where the doctrine of comparative negligence applies, Hoffman v. Jones, 280 So.2d 431 (Fla.1973) and where assumption of risk has been abolished as an absolute defense. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). Water skiing is not a contact sport so as to fall within the exception mentioned in Blackburn v. Dorta, supra, and it is unfortunate that the majority opinion seems to make it one just because it may be negligently performed. Undoubtedly, the appellant was negligent, but that does not entitle appellee to a summary judgment.

The trial court apparently accepted defendant’s contention that the skier had complete control of his movements independent of the boat, but that was not undisputed, nor is it clear from the record that the boat was at a safe distance from the dock, a matter over which the boat operator has complete control. These matters, together with the question of negligence of either party are questions of fact and should not be disposed of on summary judgment. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). For these reasons, I respectfully dissent.


author: WATSON, RICHARD 0., Associate Judge.

text:
    ORANGE GARDENS CIVIC ASSOCIATION, Appellant, v. Barbara T. HARRIS, formerly Barbara T. Miles, Appellee.
    Nos. 78-2750/T4-344, 79-260/T4-344A.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.

      Marcia K. Lippincott, Sanford, and William H. Muntzing, Kissimmee, for appellant.
    John B. Ritch, Overstreet & Ritch, Kis-simmee, for appellee.
   WATSON, RICHARD 0., Associate Judge.

In 1955, a document entitled. “Notice of Restrictions on Real Estate” containing restrictions covering lots in the subdivision of Orange Gardens was recorded in the Official Records Book of Osceola County. Paragraph 3 of that document provided:

“No building shall be located nearer than 25 feet to the front line on any residential lot or nearer than 15 feet to any side street line on any residential lot. No building shall be located nearer than 5 feet to any side lot line on any residential lot unless across the lot line of two lots both owned by the same party.” (emphasis added)

The restrictions did not define the terms “front lot line” or “side street line.”

Defendant acquired ownership of Lot 20, a corner lot, in 1965. A residence was constructed on the lot sometime prior to June, 1973 (the survey prepared in 1973 shows the residence).

The south lot line of Lot 20 abuts Philip Street and the east lot line abuts Oak Street. The front door of defendant’s residence, the walkway to the front door and the carport and driveway face Philip Street. The residence is “nearer than” 25 feet to Philip Street.

Defendant proposes to construct an addition to the east side of her house. The proposed addition would be located “nearer than” 25 feet to the lot line abutting Oak Street.

Plaintiff, the Orange Park Civic Association, filed suit to enjoin construction of the proposed addition as being a violation of the setback restriction. Among other grounds, plaintiff contends that because defendant’s residence is nearer than 25 feet to the lot line abutting Philip Street, that lot line is the side street line and defendant cannot build nearer than 25 feet to the lot line abutting Oak Street which plaintiff contends is the front lot line.

Defendant contends the restriction is too ambiguous to enforce. The trial court agreed and entered a summary judgment for defendant.

Covenants restricting the free use of real property are not favored, but where the restrictions are clear, reasonable and have a lawful purpose the covenants will be enforced. Hagan v. Sabal Palmes, Inc., 186 So.2d 302 (Fla.2d DCA 1966); Barrett v. Leiher, 355 So.2d 222 (Fla.2d DCA 1978); Heisler v. Marceau, 95 Fla. 135, 116 So. 447 (1928). Such restrictions are strictly construed in favor of the free and unrestricted use of land. Mundy v. Carter, 311 So.2d 773 (Fla.lst DCA 1975); Voight v. Harbour Heights Improvement Assn., 218 So.2d 803 (Fla.4th DCA 1969). Substantial ambiguity or doubt is resolved against the party claiming the right to enforce the restriction. Washington Apartment Hotel Co. v. Schneider, 75 So.2d 907 (Fla.1954).

The problem of interpreting setback restrictions as applied to corner lots is not a unique problem, although no Florida decisions were found. 20 Am.Jur.2d Covenants, Conditions, Etc. § 240 (1965); 93 A.L.R.2d 1248 (1964); 30 A.L.R.2d 554 (1953). The majority of the cases involving corner lots requiring a particular setback from the front lot line have held the restriction applicable only to the side on which the building faces. 20 Am.Jur.2d Covenants, Conditions, Etc. § 240 (1965).

It is plaintiff’s contention that summary judgment was improper and that evidence should be taken on the intention of the parties as to the covenant. Heisler v. Marceau, supra, held:

And the intention of the parties to the covenant, construed in the light of the surrounding circumstances, as expressed in the whole of the instrument containing the covonant, not the opinion of witnesses as to whether a different use of [the] premises conveyed would be helpful or detrimental is controlling. (citations omitted) (emphasis added)

Barret v. Leiher, 355 So.2d 222 (Fla.2d DCA 1978) recognized that principle in construing the term “structure:”

Florida adheres to the general rule that a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. If it is necessary to construe a somewhat ambiguous term, the intent of the parties as to the evil sought to be avoided expressed by the covenants as a whole will be determinative. Only where intent cannot be ascertained will the covenant not be enforced. (citations omitted)

The terms “front lot line” and “side street line” should be given their ordinary meanings. The front lot line is ordinarily understood to be the lot line toward which the residence faces. 30 A.L.R.2d 561 (1953). Defendant’s residence faces Philip Street and therefore the lot line abutting Philip Street is the front lot line. The fact that the residence was constructed nearer than 25 feet to the front lot line simply means there may have been a violation of the front lot line setback restriction at the time the house was constructed.

Unless the line abutting Oak Street and toward which the side of the house faces is considered the side street line the term “side street line” as used in the restrictions is meaningless. Most, if not all, of the lots shown on the plat which are bordered by two streets are corner lots. An examination of the plat reveals no obvious differences between Philip Street and Oak Street. Neither does the plat bear any indication of which street should be designated as the side street. Therefore, the lot line abutting Oak Street is the side street line and the 15 foot setback restriction is applicable.

Accordingly, the summary judgment for defendant is

AFFIRMED.

ORFINGER and COBB, JJ., concur.


author: PER CURIAM.

text:
    Gerald A. LEWIS, etc., Appellant, v. Martin ANDERSEN et al., Appellees.
    Nos. 79-569/T4-447, 79-570/T4-447A.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.
    Jim Smith, Atty. Gen., and Wilson Crump, III, Asst. Atty. Gen., Tallahassee, for appellant.
    Lawrence E. Dolan, Orlando, for appel-lees.
   PER CURIAM.

The comptroller appeals an order entered by the trial court on February 2, 1979, finally determining by joint stipulation the amount of tax refund owed by the State of Florida to the appellee — taxpayers for over-payments of intangible personal property taxes. The appellees paid the intangible personal property taxes claimed by the State, under protest, for the tax years 1966 through 1971. The sole issue involved in this appeal is whether the trial court erred because it awarded the appellees interest on the tax refund from the dates of payment to the date of judgment, at the rate of interest established by Section 55.03, Florida Statutes (1979). We agree the trial court erred in awarding interest from the date of payment under protest, and we reverse that portion of the order.

It seems inequitable that a taxpayer can be charged interest and penalties in considerable amounts by the State if he fails to pay a tax , yet if the taxpayer pays the excessive amount of taxes demanded by the State, under protest, he cannot recover interest from the date of payment even at the modest rates set by Section 55.03. However, the principal is well established in Florida that absent statutory authority allowing recovery of interest on tax refunds, the taxpayer cannot be awarded interest. State ex rel. Four-Fifty Two-Thirty Corp. v. Dickinson, 322 So.2d 525 (Fla.1975); Mailman v. Green, 111 So.2d 267 (Fla.1959); Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA April 9, 1980); Hansen v. Port Everglades Steel Corporation, 155 So.2d 387 (Fla. 2d DCA 1963). We are unable to distinguish City of Opa-Locka v. Buckress Land Co., 247 So.2d 339 (Fla. 3d DCA 1971), which allowed a taxpayer to recover 6% interest on a tax refund from the date of payment under protest. The Third District Court of Appeal did not rely on any statutory authority. Its per curiam opinion pre-dates Four-Fifty Two-Thirty Corp. and was not mentioned in that opinion.

Appellees argue that inequitable circumstances may make an award of interest on tax refunds allowable. The Mailman case contains dictum which lends support to this theory:

To repeat, the amount ultimately to be paid was throughout the litigation in doubt. Whether the comptroller should refund any or all of it could not have been divined by that officer and that being the case, we have found no room for the play of equitable principals relative to unjust enrichment of the state at the expense of its citizens, as failure of the state to deal fairly with them. .
The money was not inequitably withheld by the state and used by it to the detriment of petitioners,

at 269.

Four-Fifty Two-Thirty Corp. repeats this dictum from Mailman with apparent approval, although it is dictum in Four-Fifty Two-Thirty as well. However we find no equitable grounds established in this case for the application of this dictum. The order decreeing the amount of the refund was premised on the parties’ joint stipulation. No testimony was presented to the trial court concerning inequitable circumstances, or excessive taxes or unfair dealings with the taxpayer by the taxing authorities. The trial court made no such findings.

Since there is no equitable or statutory basis to affirm the award of interest on the refunds from the date of payment by the taxpayer, we reverse that portion of the lower court’s order.

REVERSED IN PART.

COBB, UPCHURCH and SHARP, JJ., concur.

      . Section 55.03 provides: “All judgments and decrees bear interest at the rate of 6 percent a year, except that judgments or decrees rendered in circuit courts shall bear interest at the rate of 8 percent a year unless the judgment or decree is rendered on a written contract or obligation providing for interest at a lesser rate, in which case the judgment or decree bears interest at the rate specified in such written contract or obligation.” (Effective October 1, 1977). Chapter 77-354, § 8, Laws of Fla. provides: “This act does not apply to any judgment or decree granting recovery with respect to an action filed prior to the effective date of this act.” Section 55.03, prior to its amendment in 1977, provided that all judgments bear interest at the rate of 6 percent a year. Although not involved in this appeal, this statute would provide a basis to collect 6% interest on the judgment appealed from in this case from the date of the judgment. Simpson v. Merrill, 234 So.2d 350 (Fla. 1970); City of Miami Beach v. Jacobs, 341 So.2d 236 (Fla. 3d DCA 1976).

      . § 199.052(8)(a), (b), (c), (d), Fla.Stat. (1979).


author: SHARP, Judge. CROSS, Judge,

text:
    Edwin F. GORDON, Appellant, v. E. G. GREEN et al., Appellees.
    No. 78-1831/T4-194.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.

      John W. Kearns, Miami, for appellant.
    Bedell, Bedell, Dittmar & Zehmer, P. A., Jacksonville and Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellee, Gustave T. Broberg, Jr.
    Jones, Paines & Foster, P. A., West Palm Beach, for appellee, E. G. Green.
   SHARP, Judge.

The notice of appeal was filed in this case on August 22, 1978. Appellant seeks review of the trial court’s order dismissing Counts I, II and III dated November 9, 1977. Motions for rehearing were made and denied by an order rendered June 6, 1978. The court mailed a conformed copy of the order on June 6, 1978, to one of the defendant’s attorneys, William Gillen, and he was directed to serve copies on the other parties. He filed a certificate of service with the court records stamped “June 9,” indicating that a copy of the order was mailed to the attorneys for all parties “this _day of June, 1978.” Apparently, neither of the two attorneys for the plaintiff received a copy of the order, but learned of its entry on July 26, 1978 when one of them checked the court file. The plaintiff then filed a motion for extension of time for filing notice of appeal, which was agreed to by all of the parties. Based on this agreement, the trial court entered an order extending the time for plaintiff to file his appeal through August 25, 1978.

We are bound by the decisions of the Florida Supreme Court holding that the trial court cannot extend the time to file the notice of appeal, as was attempted in this case. Ramagli Realty Co. v. Craver, 121 So.2d 648 (Fla.1960); Salinger v. Salinger, 100 So.2d 393 (Fla.1958); Lalow v. Codorno, 88 So.2d 752 (Fla.1956); Bonura v. Holloway, 334 So.2d 842 (Fla. 4th DCA 1976); In the Interest of D.L.M. and D.M., Children, 320 So.2d 830 (Fla. 4th DCA 1975).

However under the circumstances in this case, the time for filing the appeal could possibly have been extended by asking the trial court to vacate the order pursuant to Rule 1.540(a) or 1.540(b) of the Florida Rules of Civil Procedure. Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979); Smith v. Garst, 289 So.2d 774 (Fla. 2d DCA 1974); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971). We do not relish the triumph of form over substance. We therefore relinquish jurisdiction and remand this case to the trial court for a determination of whether motions to vacate the order pursuant to Rule 1.540(a) or 1.540(b) should be granted. Compare Fla.R.App.P. 9.040(c).

REMANDED.

ORFINGER, J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting.

I respectfully dissent.

I would dismiss the appeal as being untimely filed.


author: UPCHURCH, Judge.

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Myrna R. BOSWORTH et vir., Appellees.
    No. 79-338/T4-402.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.

      E. Clay Parker, and James H. Webb, Jr., Orlando, for appellant.
    Gavin D. Lee, Melbourne, for appellees.
   UPCHURCH, Judge.

This is an appeal from a portion of a final judgment of the Circuit Court for Brevard County awarding attorneys’ fees of $9,000.00.

The points assigned as error on appeal may be summarized in the single question:

Did the trial court abuse its discretion in determining $9,000.00 was a reasonable fee for the services of plaintiff’s attorneys?

Appellee, Myrna R. Bosworth, after injury in an automobile collision, was paid for medical treatments under the personal injury protection (PIP) coverage of an automobile policy carried by appellant Hartford. Based upon an independent medical examination of appellee, appellant Hartford refused further payments. Appellee then filed suit to recover $4,746.15 in outstanding medical bills. A verdict was returned for the full amount.

At a subsequent hearing, an application for attorneys’ fees under section 627.428, Florida Statutes (1977) was considered. The court heard the testimony of the two attorneys representing appellee and two who qualified as experts. No testimony as to the amount of a reasonable fee was offered by Hartford.

Hartford contends that the trial judge improperly awarded the fee based upon a desire to punish Hartford for not settling the suit. See Meeks v. State Farm Mutual Automobile Insurance Co., 460 F.2d 776 (5th Cir.1972). The trial court apparently considered appellant’s argument and specifically found that this factor had not entered into its determination of the fee. We cannot conclude that this finding was incorrect because the fees awarded did not exceed the amount which the experts testified was reasonable.

Appellant also contends that the trial judge held they were limited to the “perimeters of the testimony” and therefore could not award less than the $9,000.00 figure. This contention is based on the following remarks of the trial judge:

THE COURT: I’m kind of locked in on the thing. I’m not particularly uncomfortable with it, but the award must be made within the perimeters of testimony and the law.

The trial judge is not confined to the amount which the witnesses, however well qualified, deem reasonable. See Universal Underwriters Insurance Co. v. Gorgei Enterprises, Inc., 345 So.2d 412, 414 (Fla.2d DCA 1977). The remarks of the trial judge indicate that he may have believed he had no discretion to award a smaller amount absent other proof. Therefore, we conclude that this cause must be remanded for further consideration of the award. We do not hold that the court did not have discretion to award an amount which was consistent with the expert testimony [see Aetna Cas. & Sur. Co. v. Florida Power & Light, 367 So.2d 1104 (Fla.3d DCA 1979)], but hold only that he was not confined to that amount and could have awarded a lesser amount.

Remanded for reconsideration consistent with this opinion.

ORFINGER and COBB, JJ., concur.


author: BERANEK, Judge.

text:
    LA POINTE OUTDOOR ADVERTISING, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 78-459.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Robert D. Korner, Coral Cables, for appellant.
    Margaret-Ray Kemper, App. Atty., Philip S. Bennett, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for ap-pellee.
   BERANEK, Judge.

La Pointe Outdoor Advertising appeals final agency action by the Department of Transportation ordering removal of its outdoor advertising sign found to violate Sections 479.02 and 479.07(1), Florida Statutes (1977), and denying compensation for its removal. We affirm.

La Pointe’s sign, located on 1-95 in Palm Beach County, is within 1000 feet of a sign Outdoor Media built after La Pointe’s sign was completed. On July 6, 1976, La Pointe obtained a building permit from Palm Beach County and began construction of its sign on approximately July 20, 1976. Outdoor Media received its building permit from the County August 4, 1976, and started building around September 20, 1976. Outdoor Media applied to the Department of Transportation for a state sign permit for this location on July 7, 1976, and received approval on July 12,1976. La Pointe applied for its state permit on July 12, 1976. The Department denied the application on September 9, 1976, because a permit (Outdoor Media’s) had previously been issued for a site within 1000 feet of La Pointe’s selected location. On March 24, 1977, the Department of Transportation sent La Pointe a letter advising it that its sign, located within 1000 feet of a permitted sign, violated Section 479.02, Florida Statutes (1977). The Department of Transportation sent a second violation letter April 24, 1977, advising La Pointe of an additional violation, erecting its sign without a valid permit, contrary to Section 479.07(1), Florida Statutes (1977).

The procedure surrounding the hearing and eventual final order has been somewhat confused. The Hearing Officer entered a recommended order on December 15, 1977, requiring La Pointe to remove the sign within ten days of the Department of Transportation’s final order. The Department rendered a final order February 4, 1978, adopting the Hearing Officer’s findings in full. The Department subsequently conceded the February 4, 1978, order to have been improperly entered, and this Court remanded the matter for a further full hearing. On June 28, 1978, the Department of Transportation entered its final order following the remand. This order once again accepted the Hearing Officer’s recommended order and required removal of the sign. This Court subsequently determined that the La Pointe petition for cer-tiorari as initially filed should be treated as an appeal governed by Florida Rule of Appellate Procedure 9.030(b)(1)(C).

On the merits, La Pointe initially challenges the Department of Transportation’s authority to enforce the 1000 foot spacing requirement. Section 479.02, Florida Statutes (1971), authorized the Governor to execute an agreement with the Secretary of Transportation to carry out the purposes of the Highway Beautification Act of 1965. On January 27, 1972, the Governor and the Secretary of the United States Department of Transportation executed such an agreement, applying to all commercial and industrial areas within 660 feet of the right of way of all interstate and federal aid primary systems in Florida. Section lll.B. provides in part that “[n]o two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction.” La Pointe argues that this Agreement is not a regulation; therefore, the 1000 foot spacing requirement is not enforceable. The First District resolved this issue in Brazil v. Division of Administration, State Department of Transportation, 347 So.2d 755, 758 (Fla. 1st DCA 1977), holding that the Department of Transportation has the authority to enforce the agreement. We agree and hold the spacing restriction to be enforceable.

La Pointe further contends that if removal is required, it is entitled to compensation. Regarding compensation, Section 479.24(1), Florida Statutes (1977), provides:

(1) Compensation shall be paid upon the removal of all signs 1awfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971 shall be fully compensated by the method herein provided. (Emphasis supplied.)

Noting this statute, the Department denied compensation finding:

The key here is the requirement that such signs have been “lawfully in existence” or “lawfully erected.” The whole question in this case is whether or not the subject sign was “lawfully erected.” Once it is determined that it was not “lawfully erected” it is removed from the application of this statute.

Conversely, Brazil v. Division of Administration, State Department of Transportation, supra, construed this section as requiring compensation for the replacement value of the materials in an unlawfully erected sign. Brazil did not discuss the “lawfully in existence” language, however, and instead emphasized the second sentence, limiting compensation for signs erected after December 8, 1971, to the actual replacement value of the materials. We decline to follow this portion of Brazil. Compensation for removal of a sign erected in violation of the law essentially condones the initial unlawful act and totally ignores the first sentence of Section 479.24(1), Florida Statutes (1977). Because La Pointe’s sign was never “lawfully in existence,” the Department correctly denied compensation.

We also hold that the prior issuance of the Palm Beach County permit does not change this result. Section 479.15(1), Florida Statutes (1977), provides: “no zoning board or commission nor any other public officer or agency shall permit any advertisement or advertising structure which is prohibited under the provisions of this chapter . . .” In addition, Section 16(A) of the Palm Beach County Sign Code, in existence at the time in question, provided: “Where other sign or outdoor advertising regulations are in effect and are more restrictive than the provisions of this Code, the more restrictive provisions shall prevail.”

Since we hold the 1000 foot provision to have been effective, it must govern as the more restrictive regulation. The order of the Department of Transportation of June 28, 1978, is thus affirmed.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . LaPointe’s brief does not contest the Department’s findings regarding the permit violation. (§ 497.07(1), Fla.Stat. (1977).)

      . 479.02 Enforcement of provisions by department. — It shall be the function and duty of the department to:
      (1)Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the Governor in accordance with title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code;
      (2) Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial area;
      (3) Determine unzoned commercial and industrial areas; and
      (4) Regulate signs relating to food, lodging, camping, vehicle service, and attractions, subject to current federal regulations.


author: HERSEY, Judge.

text:
    Michael CHESNUT and Stephen J. Calamia, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-931, 78-932.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Rehearing Denied May 28, 1980.

      William C. Owen, Jr. of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, and Marsha G. Madorsky of Sandstrom & Haddad, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

This is an appeal from a conviction of possession of cannabis in excess of one hundred pounds. Four judicial acts are urged as error, two of which merit consideration.

In response to a call from a charter boat captain, two Martin County Sheriff’s deputies were dispatched to the Manatee Boat Dock. There they observed appellants’ vessel in tow behind the charter boat. A search of the vessel revealed in excess of one hundred pounds of cannabis in the cabin whereupon appellants were arrested and, in due course, tried, convicted and sentenced for a second degree felony.

Appellants moved to suppress the evidence resulting from the warrantless search, which motion was denied. We affirm that denial. While the facts are somewhat in dispute, there was credible testimony to the effect that, in response to one deputy’s request for permission to come aboard, one of the appellants replied: “Be my guest.” When the deputy had boarded the vessel and moved toward the cabin, one of the appellants made the statement: “You don’t have to look, it’s loaded.” Under these circumstances we find that there was consent to board and search the vessel. Even if no consent had been given, however, probable cause existed to search and exigent circumstances relieved the deputies from the requirement of obtaining a search warrant. Probable cause was established by the following facts: (1) the vessel ran out of fuel seventeen miles out at sea where appellants said they had been fishing — but the vessel was not rigged for fishing; (2) the bow of the boat rode low in the water whereas it is customary in this type of vessel for the bow to ride high and the stern low; (3) all of the cabin windows were covered with masking tape; (4) appellants were unable to produce the vessel’s registration papers; (5) during a rainstorm while the vessel was in tow appellants did not enter the cabin to avoid the rain; and, finally, (6) one of the deputies testified that he smelled marijuana as he was standing near the vessel.

Exigent circumstances consisted of the fact that this was a sea-going vessel, obviously mobile, and undergoing a refueling operation. While there was testimony from one witness that the charter boat may have maneuvered in such fashion that appellants’ vessel could only move forward toward the dock, it is clear that the charter boat captain had no authority whatsoever to block appellants’ escape once the vessel had been refueled.

For these reasons we hold that the war-rantless search was justified.

Appellants urge as additional error the sentence based upon a second degree felony, pointing out that mere possession of cannabis in excess of one hundred pounds is a felony of the third degree. At issue is the appropriate construction to be placed upon Section 893.13(l)(a)2, Florida Statutes (1977). Both the First and Second Districts have held that such an offense is a third degree felony. Beasley v. State, 382 So.2d 47 (Fla.2d DCA 1980); Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978). However, we again hold, as we did in State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980) that is a felony of the second degree. In its opinion, the Beasley court certified the following question to the Supreme Court of Florida:

As Section 893.13 of the Florida Statutes read prior to the changes effected by 1979 legislation, was the unlawful possession, per se, of more than 100 pounds of cannabis a felony of the second or third degree?

Nevertheless, we are of the opinion that we are obligated to recognize this direct conflict in order that the Supreme Court, in the exercise of its conflicts jurisdiction, may review the case and resolve the conflict.

Having determined that appellants’ additional points on appeal are without merit, we affirm the conviction and sentence.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD, J., concur.


text:
    In the Interest of J.D.Z., a child.
    No. 79-211.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Rehearing Denied May 21, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by a juvenile defendant. The issue on appeal is the sufficiency of the evidence to support the adjudication of delinquency for the crime of burglary. Appellant maintains that unrebutted evidence of his voluntary intoxication presented at hearing negates the specific intent necessary for the crime of burglary. We reverse finding insufficient evidence and conclude that appellant’s motion for directed verdict should have been granted.

Appellant testified that he and two friends drank two quarts of Southern Comfort, an alcoholic beverage, over the course of an evening. The friends dropped appellant off in front of his house sometime before 11:00 p. m. One friend testified appellant was “pretty well drunk” at this time. He went into his house and took off his shirt and shoes. Appellant’s mother testified he said, “I’m looking for my friend, where’s my friend?”, skipping and clicking his fingers at the same time. She testified he had never acted like that before.

A short time later, Frank Barritta, who lived directly across the street from appellant, was awakened by his dog barking. He went into the front Florida room near the front door and saw “a shadow crouched between the table and chair.” In the meantime, his wife called the police. The police came and pulled the “shadow”, who turned out to be defendant, outside.

One officer described appellant as high, staggering and confused. Barritta, the home owner, testified appellant asked where he was. Appellant himself did not remember anything. There was unrebutted testimony that appellant was a friend of Barritta’s daughter and had recently spent time at the house. There was no evidence of damage or breaking to the front door nor evidence of theft or other mischief. Appellant was subsequently charged with entry of a structure with intent to steal in a petition for adjudication of delinquency.

Appellant moved for judgment of acquittal at the close of State’s case arguing that his intoxicated state negated the element of intent to steal contained within the particular charge of burglary. The court denied the motion. Renewed motions were denied at the close of all evidence. The trial court stated, “Frankly speaking, I think you were too drunk to know what you were doing, but you did something, and that’s what I have to deal with.”

J.D.Z., the juvenile defendant, appeals his adjudication of delinquency maintaining the evidence of intent to steal was insufficient. The State relies upon Section 810.07, Florida Statutes (1979), which provides:

In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.

We find no evidence of stealthful entry. See Peters v. State, 76 So.2d 147 (Fla.1954). Furthermore, the evidence of intoxication was overwhelming and apparently accepted by the trial judge. Any intent presumed from the statute above was thus rebutted by the evidence presented at trial. Although appellant may well have been guilty of some other offense, there was not sufficient support for the crime charged.

The adjudication of delinquency is, therefore, reversed.

REVERSED.

MOORE and HURLEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    Janet L. BASHAW, Appellant, v. Thomas A. BASHAW, Appellee.
    No. 79-572.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.

      J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for appellant.
    Roger N. Messer of Richard D. Sneed, Jr., P.A., Fort Pierce, for appellee.
   LETTS, Chief Judge.

The reversible error in this appeal revolves around a marriage of 23 years duration, two children, a husband earning between $500 and $600 a week and a wife earning approximately $100 a week. Notwithstanding, only rehabilitative alimony of $312.50 a month for two years was awarded. We reverse.

The above facts bring this case squarely within our holding in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) and we are of the opinion that permanent alimony should have been awarded. Moreover, as we indicated in both McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978) and West v. West, 345 So.2d 756 (Fla. 4th DCA 1977) there is little reason to suppose that this wife will be substantially better able to support herself two years from now than at present. This being so, the award should be permanent rather than rehabilitative, subject to the ever present authority to modify it if her proposed secretarial training is completed and her income substantially increases, all in accordance with the precepts of Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

The other point on appeal with merit concerns the trial Judge’s division of both personal property and real estate in Florida and Texas. Formerly, under the law laid down by the Supreme Court as we perceived it, much of this division of property between the spouses might have constituted reversible error. However, the Supreme Court, in a landmark decision, appears to have approved the trial Judge’s course of conduct in this case. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. Case No. 54124, Opinion filed March 27, 1980).

Accordingly, the Final Judgment is approved in all respects with the exception that the award of rehabilitative alimony is herewith reversed and set aside in favor of a permanent periodic award in the same sum.

REVERSED AND REMANDED FOR THE ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

DOWNEY and MOORE, JJ., concur.


text:
    Theodore R. BENDA, Appellant, v. E. Clark GIBSON, d/b/a Gibson Realty, Appellee.
    No. 79-1630.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.

      Ronald Paul Whitley, Port St. Lucie, for appellant.
    Martha C. Warner of Warner, Fox & Seeley, Chartered, Stuart, for appellee.
   PER CURIAM.

Defendant appeals from a final judgment for plaintiff after a jury verdict. Plaintiff was a real estate broker who sued defendant for a commission on the sale of certain property owned by defendant. On appeal defendant contends the trial court erred in failing to grant defendant’s motion for directed verdict. We affirm.

The testimony of the parties to the sales transaction was sharply conflicting. The jury considered and decided these disputed factual issues and no attack is made upon the court’s instructions on the law. We conclude that the evidence was sufficient to support the judgment for plaintiff. It is not the function of this court to re-evaluate the evidence or substitute our judgment for that of the jury. Competent evidence to support the verdict was presented and it must, therefore be affirmed. Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla. 1977).

AFFIRMED.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    Sheri KASSEL, Appellant, v. STATE of Florida, Appellee.
    No. 78-2069.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    D. Robert Silber and Douglas J. Glaid of Kay, Roderman & Silber, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

The opinion previously published herein on February 13, 1980, is withdrawn and the following opinion substituted therefor.

Appellant seeks reversal of the trial court’s order withholding adjudication and placing her on probation for a period of one year. She pled nolo contendere to attempted possession of a controlled substance, a misdemeanor. Appellant suggests error in the denial of her sworn motion to dismiss and motion to suppress certain evidence. We find no merit in appellant’s position as to the motion to suppress and affirm. As to the trial court’s ruling on the defendant’s motion to dismiss filed pursuant to Rule of Criminal Procedure 3.190(c)(4), we deem it appropriate to comment upon practice under this rule as applicable herein. The rule requires that the defendant specifically allege what the undisputed facts are and that the State specifically traverse facts which are in dispute. The respective responsibilities of the parties are well stated in Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977), as follows:

Initially, the defendant in his sworn motion must allege that the material facts of the case are undisputed, describe what the undisputed material facts are, and demonstrate that the undisputed facts fail to establish a prima facie case or that they establish a valid defense (either an affirmative defense or negation of an essential element of the charge). Obviously, if the undisputed facts as alleged' in the motion to dismiss do not meet such burden then any response from the State would be superfluous, and the motion may be summarily denied. If, however, the allegations of the motion meet the above test, then the burden shifts to the State. If the State wishes to avoid the effect of the motion, then its traverse or demurrer, as described in Rule 3.190(d), must place a material issue of fact in dispute or establish that the undisputed facts do establish a prima facie case. In the former instance, denial by the State under oath in its traverse of a specific material fact alleged in the motion to dismiss requires automatic denial of the motion to dismiss. Conversely, those facts alleged in the motion to dismiss which are not specifically denied by the State are, for the purpose of the motion, deemed admitted. For the State’s traverse to effectively deny a material fact alleged in the motion to dismiss, it need not be based in whole or in part on the personal knowledge of the state attorney who files it nor must it be buttressed by the affidavit of the victim or other witness. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). While the rule does not require the State to allege any facts which negate the factual matters set forth in the motion to dismiss, the State must nevertheless, when it purports to deny material facts, deny those facts with specificity. Supra at 1045.

In the instant case, the defendant’s sworn motion to dismiss was rather conclusory in that she simply stated she was legally in possession of the drug in question pursuant to a valid medical prescription. The State’s traverse is equally conclusory in that it simply denied the defendant was legally in possession of the drug. We frankly find fault in compliance with the rule on both sides in that both the motion and the traverse were conclusory in nature and not factually explicit. Under these circumstances, we cannot fault the trial court for denying the motion, and the order is thus affirmed.

AFFIRMED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    Gino LATISI, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, etc., Respondents.
    No. UU-489.
    District Court of Appeal of Florida, First District.
    May 1, 1980.

      Gino Latisi, in pro. per.
    No appearance, for respondent.
    Before MILLS, C. J., and McCORD, ROBERT P. SMITH, Jr., ERVIN, BOOTH, LARRY G. SMITH, SHIVERS, SHAW and WENTWORTH, JJ.
   PER CURIAM.

This cause is before the Court as a pro se petition for writ of mandamus. Petitioner requests review of the proceedings of the Florida Parole and Probation Commission in determining petitioner’s presumptive parole release date. Upon receiving and docketing petitioner’s case, this Court directed petitioner to submit to this Court $50 to cover the required filing fee, the failure of which would result in automatic dismissal of his cause without further order of the Court. Petitioner responded claiming that the order denied petitioner access to court because he is presently incarcerated, unable to earn wages and cannot pay the filing fee as ordered. Petitioner moved the Court to permit the case to be filed without payment of the filing fee. We are unable to do this.

As explained in the Committee Notes following Rule 9.430, Florida Rules of Appellate Procedure, that rule does not expand the right of indigents to proceed with an appeal without payment of costs. The existence of such a right is governed by substantive law.

A petition for writ of mandamus is a civil action. Neither law nor rule provides a waiver of the filing fee for mandamus. Certain infringements of liberty interests of a constitutional magnitude are reviewable by this Court without cost to a petitioner under the terms of Article I, Section 13, of the Florida Constitution, when filed as a petition for writ of habeas corpus. See Rule 2.040(b)(3), Florida Rules of Judicial Administration. [Complaints concerning the setting of a presumptive parole release date have not yet been considered to give entitlement to such relief. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).]

Until the Legislature exempts cases such as this one from payment of a filing fee, this Court must abide by § 35.22(3), Fla. Stat., and Rule 9.110(b), Fla.R.App.P. See also Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), reh. denied, 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315 (1973); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).

Accordingly, petitioner’s prayer to proceed without payment of the required filing fee must be denied. Failure to deposit the filing fee by May 6,1980, shall result in the automatic dismissal of this cause without further order of the court.