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

text:
    DUVAL TEACHERS UNITED, Appellant, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. TT-482.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    Rehearing Denied Dec. 19, 1980.
    William H. Maness, of Maness & Kacher-gus, Jacksonville, for appellant.
    William Lee Allen, Jacksonville, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

The Union appeals from a circuit court judgment dismissing, for lack of jurisdiction, the Union’s complaint for declaratory and other relief against the School Board. The Union sought a declaration that the collective bargaining agreement between the School Board and the Union, as representative of teachers employed by the School Board, should be interpreted as providing a certain hourly rate of pay for teachers recruited by the School Board to teach after regular school hours in the “compensatory education program.” The agreement in fact is entirely silent on the matter of compensation for extra work undertaken at school during hours beyond the regular seven-hour workday, and the Union therefore can contend only that the contract necessarily implies an agreement to pay an hourly rate computed by reference to each teacher’s base pay and hours of work.

After a bench trial on the merits, the circuit court dismissed the Union’s complaint for lack of jurisdiction, finding that the collective bargaining agreement

.. . does not mention the Compensatory Education Program, employment of teachers for the program, or salary scales for persons who teach in the program, nor is there incorporated therein any provision expressly dealing with “overtime pay” or “after school pay” for the regular full time teachers employed in the “Compensatory Education Program.”

While we think the circuit court may technically have erred in deciding it had no jurisdiction to declare whether the disputed matter was governed by the contract, Public Employees Rel. Comm’n v. District School Board of DeSoto County, 374 So.2d 1005 (Fla. 2d DCA 1979), the court’s finding of no jurisdiction apparently was predicated on the only declaration of rights the court could properly have rendered under the circumstances. Had the court found that the dispute was arguably determinable under the terms of the contract, the proper remedy would have been to require grievance procedures leading to arbitration as required by law. Section 447.401, Florida Statutes (1979). See also Manatee County Municipal Employees Local 1584, etc. v. Manatee County School Board, 6 FPER ¶ 11188 (1980). Here, however, the court found in effect that no provisions in the contract can reasonably be regarded as controlling the compensation to be paid teachers for their after-hours school work. On the facts of this case, we agree with that determination by the circuit court. Having thus recognized that the circuit court determined that the contract does not fix the rights and obligations of the parties, who must therefore avail themselves of other remedies, we AFFIRM the circuit court’s judgment as so construed.

BOOTH, J., concurs.

SHAW, J., concurs and dissents with opinion.

SHAW, Judge,

concurring and dissenting.

I concur in the majority’s conclusion that the circuit court had subject matter jurisdiction to declare whether the disputed matter is governed by the collective bargaining agreement.

I am unable to agree that a dispute over wages to be paid teachers participating in the Compensatory Education Program is not “arguably determinable” under the terms of the agreement. I do not find it critical that there is no specific mention of over-time pay, after school pay, or pay for teachers employed in the program.

It appears from the preamble of the collective bargaining agreement that its dominant purpose is to make certain that in the event of a dispute concerning wages, hours, and terms and conditions of employment there shall be a peaceful and orderly mechanism for resolving such disputes within the framework of Chapter 447, Florida Statutes. The purpose of the agreement is articulated as follows:

PURPOSE
It is the intent and purpose of this Agreement to assure sound and mutually beneficial working and economic relations between the parties hereto to provide an orderly and peaceful means of resolving any misunderstandings or differences which may arise as a result of implementing this Agreement, and to set forth herein basic and full agreement between the parties concerning wages, hours, and terms and conditions of employment. There shall be no individual arrangements or agreements made covering this agreement or any part of this agreement contrary to the terms provided herein.
It is understood that the Public Employer is engaged in furnishing essential public educational services which vitally affect the educational needs, health, safety, comfort and general well being of the children of this county and the public at large; and that the DTU represents professional teachers who have an interest in educational excellence, and both parties hereto recognize the need for continued and reliable service to these children and the public.

In keeping with my feeling that the dispute is arguably determinable within the scope of the present agreement, I would reverse the circuit court’s judgment and remand the cause to the court with directions that the judge order the parties to negotiate a grievance procedure in accordance with § 447.401, Florida Statutes (1979).


source: Caselaw Access Project

author: HENDRY, Judge. DANIEL S. PEARSON, Judge,

license: Public Domain

text:
    Tom UNDERWOOD, Appellant, v. The UNIVERSITY OF KENTUCKY et al., Appellees.
    No. 79-1883.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Alfred Gustinger, Jr., Coral Gables, for appellant.
    Brown, Maimón, Salmon & Collins and Michael H. Salmon, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant Underwood seeks reversal of a final order dismissing his second amended complaint for lack of in personam jurisdiction. We hold that the trial court correctly dismissed the cause, however, the dismissal should have been without prejudice to appellant’s right to bring suit in a proper forum.

The appellant was the plaintiff in an action instituted in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. The complaint alleged that Underwood had been libeled in a book published by the University of Kentucky (University) and written by appellee Lyon, a professor at the University. Plaintiff and all defendants are citizens and residents of Kentucky.

The defendants moved to quash service for failure to comply with statutory requirements, and to dismiss the cause on the basis of sovereign immunity. In support of the motion, defendants filed affidavits from Lyon and the vice president of the University denying that the defendants had any contacts with the State of Florida. The affidavits also stated that the book was printed and published only in Kentucky and distribution of the book in the State of Florida, if at all, was by independent contractors. The court granted the motion to quash service and dismissed.

The complaint was twice amended and plaintiff then obtained substituted service of process on the Florida Secretary of State pursuant to Section 48.181, Florida Statutes (1979). Defendants moved to dismiss the second amended complaint on numerous grounds including lack of jurisdiction over the persons of the defendants. The trial judge granted the motion without giving any reason. Nevertheless, we are of the opinion that the case was properly dismissed: Suit does not belong in Florida.

The record does not clearly reflect which provision of the Florida long-arm statute the plaintiff sought to employ in bringing the defendants within the jurisdiction of the court. The summonses directed to the defendants recite Section 48.181 as authority for their issuance; the affidavit filed by plaintiff to show compliance with statutory requirements relating to substituted service on non-residents refers to Sections 48.181 and 48.193. However, as discussed below, service was defective under either of these statutes, and the court correctly ruled that the prerequisites of long-arm jurisdiction over a non-resident have not been met.

Section 48.193 authorized service upon non-residents who engage either in business activities within the state or in other specific conduct, such as the commission of a tort within the state. For service to be effective under Section 48.193, the defendant must be personally served out-of-state pursuant to Section 48.194. Since the defendants were not personally served, jurisdiction could not have been acquired via Section 48.193.

Nor was service effective under Section 48.181, which was the provision actually relied upon by plaintiff. This section may be employed to obtain jurisdiction over non-residents who engage in or carry on a business or business venture in the state. The only evidence in the record as to business activities within Florida by the defendants are the bare allegations in the complaint: That the University distributed a brochure offering to sell the book to 500 alumni, that the book was made available for sale by catalog mail order through bookstores within the state, and that a copy of the book may be found in the Dade County Public Library.

The jurisdictional test under Section 48.-181 was recently articulated by this court in Caribe & Panama Investments v. Christensen, 375 So.2d 601 (Fla. 3d DCA 1979):

We have recently reaffirmed the established law that a plaintiff must allege sufficient facts that the non-resident defendant was doing business in Florida and that the cause of action sued upon arose out of such business before jurisdiction attaches under Section 48.181(1) .... It is clear that the burden is upon the plaintiff to sustain the validity of such service when he seeks to invoke the jurisdiction of the court, .. . and he must plead sufficient facts to justify the application of the statute in order to withstand a legal challenge to such service.

at 630 (citations omitted). Moreover,

[t]he obligation of the plaintiff is not simply to raise a possibility of jurisdiction, but rather to establish jurisdiction with affidavits, testimony or documents.

Hyco Manufacturing Co. v. Rotex International Corp., 355 So.2d 471, 474 (Fla. 3d DCA 1978).

Applying these principles to the case at bar, we find that the plaintiff has failed to demonstrate that the defendants were engaged in business in the State of Florida, especially in light of defendant’s affidavits to the contrary. By choosing to rely solely on the bare allegations in his complaint, plaintiff has not satisfied his obligation to establish jurisdiction with satisfactory evidence.

Appellant has directed our attention to Rebozo v. Washington Post Company, 515 F.2d 1208 (5th Cir. 1975), a libel suit in which this state was found to have jurisdiction over a non-resident publisher. However, that case will not assist appellant: The defendant publisher in Rebozo was served under Sections 48.193(l)(b) and (f)the “tortious act” provision of the Florida long-arm statute. Minimum contacts between the defendant and the forum state were found to exist since the defendant derived over $100,000 yearly in advertising and revenue from the State of Florida. That case is additionally distinguishable by reference to the status and location of the plaintiff. In Rebozo, the plaintiff was a Florida resident, attempting service upon an out-of-state defendant; it was for precisely that situation that the Florida long-arm statute was enacted. Sub judice, the only Florida participant is appellant’s attorney.

We find Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (5th Cir. 1966) more persuasive. In Birdsong a libel action was filed in Alabama by a Mississippi resident against a Pennsylvania publisher. The magazine article was written in Mississippi by a New York writer. Substituted service was made on the Alabama Secretary of State. In determining that jurisdiction did not exist in Alabama, the Fifth Circuit stated:

The Supreme Court has made it perfectly clear that in this type of situation the State which seeks to subject a nonresident to its judicial jurisdiction must have a definite interest in the litigation .... There must be a rational nexus between the fundamental events giving rise to the cause of action and the forum State which gives that State sufficient interest in the litigation before it may constitutionally compel litigants to defend in a foreign forum.

at 346-47 (emphasis supplied). A rational nexus between the State of Florida and the writing, publication, and distribution of the libelous book are woefully lacking in the instant case. The State of Florida has no interest whatsoever in this litigation.

Even if we were to rule that jurisdiction may lie in the courts of this state, we would nonetheless be obliged under the circumstances to dismiss on the basis of forum non conveniens. Seaboard Coast Line Railroad Co. v. Swain, 362 So.2d 17 (Fla.1978); Flota Mercante Gran Centro-Americana v. Stena Shipping AB, 294 So.2d 98 (Fla. 3d DCA), cert. denied 302 So.2d 412 (Fla.1974). Jurisdiction properly belongs in Kentucky where the parties, potential witnesses, and evidence are located, where the book was written and published, and where the harm occurred.

Accordingly, the order dismissing the cause is affirmed without prejudice to bring suit in a proper forum.

DANIEL S. PEARSON, Judge,

specially concurring.

I concur in the result reached by the majority. However, I believe that as to the University of Kentucky, the majority’s holding is much too narrow. I would hold that, as a matter of law, the University of Kentucky, which exists by virtue of the Constitution and statutes of the State of Kentucky, is owned by the State of Kentucky and is supported, maintained and operated by public funds of the State of Kentucky, cannot be sued without its consent in the court of a sister state, here Florida, by one of its own citizens, such as Underwood.

The principle upon which I would base this holding is an infrequently discussed aspect of sovereign immunity, recently revisited by the United States Supreme Court in State of Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). Hall was a citizen of California injured in an automobile accident when his car collided with a vehicle owned by the State of Nevada and driven by an employee of the University of Nevada while engaged in official university business. The University of Nevada (even as the University of Kentucky here) was an instrumentality of the sovereign State of Nevada.

Hall sued the University of Nevada in California. Rejecting Nevada’s contention that it could not be subjected to suit in the court of a sister state, the California Supreme Court affirmed the jurisdiction of the lower California court on the theory that California could permit its citizens to bring actions in California against other states where such actions could be brought against California under its waiver of sovereign immunity. Hall v. University of Nevada, 8 Cal.3d 522, 105 Cal.Rptr. 355, 503 P.2d 1363 (1972), cert. denied, 414 U.S. 820, 94 S.Ct. 114, 38 L.Ed.2d 52 (1973). Hall thereafter prevailed at trial, and the California Court of Appeal affirmed. The United States Supreme Court, on certiorari to the Court of Appeal decision, upheld California’s right to entertain the action.

The United States Supreme Court’s decision in Hall is, however, expressly limited to effectuating California’s interest in providing protection to those who are injured on its highways through the negligence of both residents and non-residents. The decision leaves undisturbed the doctrine announced in Paulus v. State, 52 N.C. 84, 201 N.W. 867 (1924), and Paulus v. State, 58 N.D. 643, 227 N.W. 52 (1929), the only other appellate litigation in which the same issue was considered. In Paulus, the plaintiff, injured in a coal mine operated in North Dakota by the State of South Dakota, sued South Dakota in a North Dakota state court. Holding that South Dakota was immune from suit in North Dakota, the court said:

“. . . in the absence of allegations as to the law of the sister state showing a consent to be sued, the courts of this state must necessarily regard a sovereign sister state as immune to the same extent that this sister state would be immune in the absence of a consenting statute. 58 N.D. at 647, 227 N.W. at 54.”

In the view of the Paulus court, it was intolerable to allow the judiciary of one state to define the legal obligations of a non-consenting sister state and, in effect, deny the sister state’s sovereignty.

Since, in the present case, no entrenched policy of the State of Florida would be furthered by permitting Underwood to sue his own state in our courts, I believe the case is clearly controlled by the Paulus doctrine out of which Hall carves a discrete exception.

Accordingly, I would affirm the dismissal of Underwood’s suit against the University of Kentucky on this additional ground.

The author Lyon does not, of course, share in this immunity. While I agree with the majority that Underwood’s suit against him was properly dismissed, I cannot agree that on the state of the record before us, Florida has been demonstrated to be a forum non conveniens so as to absolutely preclude Underwood from suing Lyon in this state. Not only must it be shown, as it is here, that the parties are not residents of Florida, but it also must be shown that the cause of action accrued in a jurisdiction other than Florida. Adams v. Seaboard Coast Line Railroad Company, 224 So.2d 797 (Fla. 1st DCA 1969), approved, Seaboard Coast Line Railroad Company v. Swain, 362 So.2d 17 (Fla.1978). Neither that fact, nor other facts from which a court determines that its jurisdiction is a forum non conveniens, are apparent from this record. The determination that Florida is a forum non conveniens, if it is, should be made by the trial court when and if that issue comes before it.

      . We have jurisdiction pursuant to Fla.R. App.P. 9.030(b)(1)(A).

      . Plaintiff does not indicate whether any of these alumni are located within Florida.

      . Since we find that defendants were not engaged in business in the State of Florida, we need not reach the issue of whether such jurisdiction would be constitutionally permissible according to the minimum contacts requirement mandated by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and whether the defendants have purposefully availed themselves of the privilege of acting in Florida. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

      . Underwood has not alleged in the complaint that Kentucky has waived sovereign immunity. A state’s immunity from suit relates to subject matter jurisdiction. See Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971); Kirk v. Kennedy, 231 So.2d 246 (Fla. 2d DCA 1970). Absent an allegation in the complaint that the state has waived sovereign immunity, the complaint should be dismissed. See Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Weppler v. School Board of Dade County, 311 So.2d 409 (Fla. 3d DCA 1975). I see no reason in not granting our sister state the same presumption of immunity that we grant our own state. See Paulus v. State, 58 N.D. 643, 227 N.W. 52 (1929).

      . Underwood describes himself in his complaint as a citizen and resident of Kentucky and a former city council member of and a lawyer practicing in Lexington, Kentucky.

      . “The doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign’s own courts and the other to suits in the courts of another sovereign.” State of Nevada v. Hall, 440 U.S. at 414, 99 S.Ct. at 1185.

      . “California’s exercise of jurisdiction in this case poses no substantial threat to our constitutional system of cooperative federalism. Suits involving traffic accidents occurring outside of Nevada could hardly interfere with Nevada’s capacity to fulfill its own sovereign responsibilities. We have no occasion, in this case, to consider whether different state policies, either of California or of Nevada, might require a different analysis or a different result.” 440 U.S. at 424, n. 24, 99 S.Ct. at 1190.

      . This view is fully explicated in the separate dissenting opinions of Justices Blackmun and Rehnquist in State of Nevada v. Hall, supra.


author: NESBITT, Judge.

text:
    BIRDSALL SHIPPING, S.A., Appellant, v. Julio Cesar GALLARDO, Appellee.
    No. 80-640.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and C. Douglas Skinner, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Charles R. Lipcon, Miami, for ap-pellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Birdsall Shipping, S.A. (Birdsall) challenges the denial of its motion for a change of venue to Palm Beach County. We affirm on the basis that, as movant, it failed to carry its burden before the trial court.

Birdsall was joined as a co-defendant with Tropical Shipping and Construction Company Ltd. (Tropical). The affidavit of Birdsall’s vice president supported its contention that, as a foreign corporation, it had a right to be sued in Palm Beach County because that was the place where it maintained its business office. § 47.051, Fla. Stat. (1979). On the assumption that its co-defendant, Tropical, resided in Palm Beach County, Birdsall correctly contends that both corporate entities were only amenable to suit in Palm Beach County, § 47.-021, Fla.Stat. (1979); Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975); Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (Fla. 2d DCA 1969).

The flaw in Birdsall’s argument is that there was no pleading or proof before the trial court to show the residency of its co-defendant, Tropical. The burden was upon Birdsall, as the movant, to establish its entitlement to a change of venue. Silver Star Citizens’ Committee v. City Council of Orlando, 194 So.2d 681 (Fla. 4th DCA 1967); Greene v. Hoiriis, 103 So.2d 226 (Fla. 3d DCA 1958).

Affirmed.

      . 47.051 Actions against corporations.-Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation bas an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

      . 47.021 Actions against defendants residing in different counties.-Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.


author: SCHWARTZ, Judge.

text:
    Michael Newnam NARDI, Appellant, v. Edward DeWitt NARDI and Jacquelyn H. Cameron, Appellees.
    No. 80-1074.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1980.

      Tripp & Conklin and Dennis Dustin Smith, Fort Lauderdale, for appellant.
    Mandina & Lipsky and Michael A. Lipsky, M. Jay Bennett, Miami Beach, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

Michael Nardi, the son of the decedent, challenges an order dismissing his objection to the probate of his mother’s will on the grounds of undue influence and lack of testamentary capacity. The basis of the ruling below was essentially that the objection was untimely filed. We reverse.

Flora Mae Nardi died on December 27, 1979. On January 4, 1980, a petition for administration was filed in the Dade County Circuit Court by the executors named in the will. The petitioners elected not to proceed pursuant to Section 733.201, Florida Statutes (1979) under which the self-proving will would have been immediately admitted to probate. Instead, they invoked Section 733.2123, Florida Statutes (1979), which states:

Adjudication before issuance of letters-
A petitioner may serve formal notice of his petition for administration on interested persons. No person who is served with formal notice of the petition for administration prior to the issuance of letters or who has waived notice may challenge the validity of the will, testacy of the decedent, qualifications of the personal representative, venue, or jurisdiction of the court, except in connection with the proceedings before issuance of letters.

Pursuant to this provision, formal notice was served on the appellant in Garrettsville, Ohio on January 16, 1980. Section 731.-301(l)(b) Florida Statutes (1979) provides:

If there is no answer served on the petitioner within 20 days from the service of the petition, the petition shall be considered ex parte. If an answer is served, a hearing shall be set and reasonable notice given.

Fla.R.P.&G.P. 5.040(a)(1), (2) similarly grants the opponent of a will 20 days after service to file a “defense” to the petition. Notwithstanding these time limitations, the lower court entered orders admitting the will to probate and issued letters of administration to the named executors on January 25, 1980, only nine days after Michael Nardi was served. Shortly thereafter, a notice of administration was duly published as provided by Section 733.212, Florida Statutes (1979). On March 17, 1980, the appellant filed a petition objecting to the letters. On motion of the personal representatives, the petition was dismissed with prejudice, on the ground that it was barred by the failure to respond within 20 days after receipt of the notice. The lower court held that the admittedly premature issuance of the letters was immaterial. We cannot agree with that conclusion.

In our view, the optional provisions of Sec. 733.2123, which preclude challenges to the validity of a will “except in connection with the proceedings before issuance of letters,” may be applied only when there is strict adherence to the pre-conditional safeguards (which are themselves quite limited) contained in the applicable statutes and rules-specifically and particularly, those which require that the letters may not be issued ex parte unless twenty days has elapsed after service. See, In re Estate of Dalton, 206 So.2d 264 (Fla. 3d DCA 1968), cert. denied, 211 So.2d 211, 213 (Fla.1968). A nonadherence to these requirements amounts to an abandonment of the benefit of a shortened period for objection conferred by Sec. 733.2123. In proceeding ex parte before the prescribed period had expired under 731.301(l)(b), the personal representatives must be held to have subjected themselves instead to the procedures involved when a will is admitted to probate under the alternative provisions of Sec. 733.201. See, In re Estate of Dalton, supra. These include the right of a contestant to petition for revocation at any time before discharge under Section 733.-109(1), Florida Statutes (1979), or, if, as here, Sec. 733.212(1) is complied with, within three months of the first publication of the notice of administration. § 733.212(3), Fla.Stat. (1979). The objection in this case was filed well before that time, and was therefore timely asserted.

Analyzing the issue before us from a somewhat different legal perspective yields the same result. If Sec. 731.-301(l)(b) is applicable at all, the ex parte orders admitting the will and issuing letters must properly be viewed as the entry of a default judgment precluding the assertion of Nardi’s objection to probate. See, Feather v. Estate of Sanko, 390 So.2d 746 (Fla. 5th DCA 1980). Since the time for responsive pleading had not yet passed, the order was plainly premature and was therefore subject to being set aside upon proper motion. Gustafson v. McDade, 26 Ariz.App. 322, 548 P.2d 415 (1976); Pinon v. Pollard, 69 Cal.App.2d 129, 158 P.2d 254 (1945); Cottonport Bank v. Thomas, 12 So.2d 618 (La.App.1943); Poindexter v. Marshall, 193 S.W.2d 622 (Mo.App.1946); Surety Ins. Co. of California v. State, 514 S.W.2d 454 (Tex.Cr.App.1974); Oden & Co. v. Vaughn Grocery Co., 34 Tex.Civ.App. 115, 77 S.W. 967 (1903); 49 C.J.S. Judgments §§ 207, 278 (1947); see also, Overhol- ser v. Overstreet, 383 So.2d 953 (Fla. 3d DCA 1980); Ferlita v. State, 380 So.2d 1118 (Fla. 2d DCA 1980). Contrary to the thrust of the ruling below, a prematurely entered default should be vacated even if the defendant does not move to do so or otherwise respond until the appropriate time for answer has already expired. Just this occurred in Gustafson v. McDade, supra; Pinon v. Pollard, supra; Poindexter v. Marshall, supra; and Surety Ins. Co. of Cal. v. State, supra. Because the twenty days for response after service provided by Fla.R.P. &G.P. 5.040 and Sec. 731.301(l)(b) is clearly not jurisdictional, a motion to vacate such a default need not be. filed within that period and may instead be brought within a “reasonable time” not to exceed one year under Fla.R.Civ.P. 1.500(d), and 1.540(b)(1), as made applicable to will revocation proceedings by Fla.R.P.&G.P. 5.025(b)(2). The objection filed by the appellant some 45 days, and therefore clearly within a reasonable time after the “default,” affirmatively and correctly stated that the letters had been improperly issued. Under the principles we have stated, it should therefore have been treated as, in part, a motion to set aside the earlier ex parte orders and to that extent granted.

For these reasons, the order under review is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

      . This period has been accurately described as “extremely short.” Feather v. Estate of Sanko, 390 So.2d 746 (Fla. 5th DCA 1980).

      . The requirement that an opponent file defenses within twenty days is merely a procedural one and is in no sense a statute of limitations or a mandatory non-claim provision such as Sec. 733.212(3). Feather v. Estate of Sanko, supra.

      . Ibid. The lower court’s determination that its premature granting of letters was irrelevant was probably based on the view that the appellant was irremedially foreclosed by the running of the twenty days. This conclusion was erroneous.

      . We believe that Rule 1.540(b)(1), which provides that a judgment may be set aside when entered by “mistake” applies to this situation. See, Viking General Corp. v. Diversified Mortgage Investors, 387 So.2d 983, 985 (Fla. 2d DCA 1980); cf., Marx v. Redd, 368 So.2d 101 (Fla. 4th DCA 1979). We need not decide whether the premature entry also rendered the default "void” under Rule 1.540(b)(4), as was indicated in Gustafson v. McDade, supra; Pinon v. Pollard, supra and Poindexter v. Marshall, supra; see, Overholser v. Overstreet, supra (premature entry of default by clerk “void”).

      . We note that, effective January 1, 1981, Fla. R.P.&G.P. 5.040(a)(2) will itself specifically provide for relief from defaults. See, In re Fla. Rules of Probate & Guardianship, 387 So.2d 949, 950-51 (Fla.1980). This is not inconsistent with our conclusion that defaults may presently be set aside in “adversary proceedings” in probate under Fla.R.P.&G.P. 5.025(b)(2) and Fla.R.Civ.P. 1.500 and 1.540.


author: SHARP, Judge. COBB, Judge,

text:
    STATE of Florida, Appellant, v. Alexis Jeiselle COLLIE, Appellee.
    No. 79-43.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, and Carla Miller, Certified Legal Intern, Daytona Beach, for appellee.
   SHARP, Judge.

The state argues that Collie, the defendant, should not have been discharged by the trial court under Florida’s “speedy trial” rule, because a notice of Collie’s arraignment date was sent to her bondsman, although no one sent it to her, and she failed to appear at her arraignment. We affirm the discharge.

A summary of the events leading to Collie’s discharge are as follows:

January 10, 1979 - Defendant arrested for grand theft.
January 11, 1979 - Defendant bonded by Earl W. -Houk Bonding Agency, through Curtis Ward, an associate.
March 30,1979 - Information filed charging defendant with grand theft.
April 3, 1979 Court clerk sent notice of arraignment to bonding agency; agency failed to notify defendant.
April 17, 1979 Arraignment date; defendant failed to appear; capias issued.
May 1, 1979 Ed Houck arrested defendant and placed her in custody.
May 24, 1979 Arraignment; defendant appeared.
May 25, 1979 Defendant filed discovery motions.
June 29,1979 - State replied to discovery motions.
July 9, 1979 - Speedy trial time (180 days) ran out.
July 19, 1979 - Defendant filed motion for discharge.

At the hearing on the defendant’s motion for discharge, the state argued the speedy trial rule should be tolled because the defendant failed to appear at the April 17, 1979 arraignment. Collie testified she resided continuously for many years with her parents and children at the same address given to the police and bondsmen. She failed to appear at her April 17 arraignment because no one (neither the state nor her bondsman) sent her notice or told her of the date. Houk’s associate, Ward, lost his license and his absence apparently caused the agency’s failure to notify Collie. Collie, however, did not know about Ward’s problems at that time. The court records indicate the clerk notified only the bondsman of the arraignment date. The court found that the defendant did not receive notice of the arraignment date and she was continuously available for trial during the 180 day period following her arrest.

The issue in this case is whether Collie is chargeable with “constructive” notice of the arraignment given to her bondsman, and thus willfully “not available for trial” within the meaning of the “speedy trial” rule. No Florida cases answer this question. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978) states (by way of dictum) that failure of a defendant (free on bond) to appear at his arraignment is “evidence” of his “nonavailability for trial” under Florida Rule of Criminal Procedure 3.191(e). Upon the state’s making such a showing, the defendant must then counter with proof that he was “continuously available.” Nesbitt did not consider what would constitute such a showing. Similarly in Dara v. State, 278 So.2d 334 (Fla.3d DCA 1973), when the state objected to discharge because the defendant failed to appear at his arraignment, the defendant produced no proof of any kind regarding his “continuous availability” for trial.

In some contexts, courts hold that notice to a bonding company or surety is notice to the defendant. State v. United Bonding Ins. Co., 81 N.M. 154, 464 P.2d 884, 886 (1970); 10 Appleman, Insurance Law & Practice § 6092 (1943 & Supp.1980). But these cases involve proceedings to forfeit a bond upon failure of the surety to bring the defendant before the court in compliance with its bonded undertaking to do so. The courts allow bonding companies few excuses for not producing the defendant: acts of God; acts of the obligee; or acts of war. State v. United Bonding Ins. Co., 464 P.2d at 887. The “constructive notice” fiction is a tool in the court’s armory to hold sureties strictly liable.

The purpose and policies of Florida’s “speedy trial” rule are so different than those involved in bond forfeiture cases, we cannot justify the application of the “constructive notice” rule in this context. The speedy trial rule is our Supreme Court’s effort to clarify and implement a defendant’s constitutional right to a speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). The “right” belongs to the defendant, and the state has the “duty” to bring him to trial within the 180 day period.

A waiver of this right should not be based on a legal “fiction” such as “constructive notice” of an arraignment date. Nothing less than the defendant’s actual knowledge of the date and willful failure to appear, or intentional avoidance or evasion of receiving notice, which were not shown in this case, should be sufficient to waive a defendant’s speedy trial right.

We agree with the trial judge’s views expressed at the hearing:

I think the state has to be treated fairly, but the accused certainly has to be treated fairly too. And I consider it a miscarriage of justice when proper notice is not sent to an accused, to give them an opportunity to make themselves available to the Court.

Because the defendant made a sufficient showing of being “continuously available” for trial under Florida Rule of Criminal Procedure 3.191(e), even though she did not appear at her arraignment, her discharge is affirmed.

AFFIRMED.

COWART, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

The defendant was arrested on January 10, 1979, on a charge of grand theft. She was bonded out the next day by a surety, Earl W. Houk Bonding. Houk’s associate handling the defendant’s file, Curtis Ward, then lost his license and failed to notify the defendant of her arraignment on April 17, 1979. The defendant did not appear, and a capias issued, resulting in her arrest. Notice of the arraignment apparently had been sent by the clerk of the court to the bondsman, but no notice was sent directly by the clerk to the defendant, whose address remained the same throughout this period of time. The defendant was not taken to trial within the 180-day speedy trial period, and the trial court granted her motion for discharge on the basis that the state failed to present sufficient evidence of non-availability pursuant to Rule 3.191(e), Florida Rules of Criminal Procedure.

At the hearing on the motion for discharge, the defendant Collie testified that she failed to appear at arraignment as scheduled because her bonding agent’s license was revoked and she did not receive notice from him. There was no evidence before the trial court that it had been brought to the attention of the court or its clerk, prior to the scheduled arraignment, that the license of the agent had been revoked. Had this fact been brought to the attention of the court, the defendant would have been subject to commitment at that point. Rule 3.130(h)(2), Fla.R.Crim.P. The essential question raised by the state’s appeal is whether dual notice to the defendant and to the bondsman is required. It is my view that the answer is no.

When a defendant is released on bail, he is placed in the custody of the bondsman. 10 Appleman Insurance Law & Practice § 6092 (1943). By statute, the clerk of the court must give notice to the bondsman or surety of the hearing at which the defendant is to appear. § 903.26(l)(b), Fla.Stat. (1979). Ordinarily, a defendant who is on bail and who fails to appear in court pursuant to proper notice is unavailable for trial for purposes of the speedy trial time limits. State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978); Dara v. State, 278 So.2d 334 (Fla.3d DCA 1973). For purposes of non-appearance, notice to the bondsman or surety is equivalent to notice to the principal. State v. United Bonding Ins. Co., 81 N.M. 154, 464 P.2d 884 (1970).

In the recent case of State v. Grooms, 389 So.2d 313 (Fla.2d DCA 1980) [1980 FLW 1979], our sister court was presented with the issue of whether notice to a defendant’s attorney of the scheduled trial date constitutes notice to the defendant, even though no actual notice was received by the defendant himself. Its answer in the affirmative, with which I agree, cannot be harmonized with the majority opinion in the instant case. If notice to the defendant’s attorney suffices to prevent a speedy trial discharge, then notice to the defendant’s bondsman, whose sole function is to guarantee the appearance in court of the defendant and who is retained by the defendant to make that representation to the state, also should suffice to constitute a waiver of the 180-day period upon failure to appear.

Once the defendant failed to appear at her scheduled arraignment on April 17, 1979, after due notice to her bondsman, whose laxity is in no way chargeable against the state, the 180-day time limitation was waived. It then became incumbent upon the trial court, after defendant’s arrest on the capias, to set a trial date which guaranteed her constitutional right to a speedy trial. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Register, 380 So.2d 543 (Fla. 5th DCA 1980).

In the instant case the trial court found that “proper notice [was] not sent to [the] accused,” and that notice only to the bondsman was insufficient as a matter of law. It was solely upon that basis that the motion for discharge was granted. There was no consideration by the trial court of the facts and circumstances of this individual case as they related to the constitutional right to speedy trial, separate and apart from its procedural implementation (the 180-day formula), which had been waived by the non-appearance. See Butler. The record suggests that prosecution following the initial arrest was less than diligent, but this was not the basis of the order of discharge.

I would reverse, and remand for consideration of the motion for discharge by the trial court without consideration of the 180-day time period.

      . Fla.R.Crim.P. 3.191(a)(1).

      . Florida Rule of Criminal Procedure 3.191(e) provides:
      The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.
      If an accused voluntarily removes himself from the jurisdiction of the court or otherwise acts to make himself unavailable for trial, the right to trial within the time herein provided shall on motion by the State be voidable by the court in the interests of justice. Upon such accused becoming available for trial and upon notice thereof by the accused or his counsel to both the court having jurisdiction over the trial and to the office of the prosecutor, or upon being retaken into custody, the time within which trial is to commence shall be as herein provided and begin anew.

      . See Williams v. State, 383 So.2d 722 (Fla. 1st DCA 1980).

      . See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).


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

text:
    Robert C. HOFFMAN, James C. Koehler, Loren W. Houston, comprising a joint venture known as R.C.H. Investments, and Harry J. Stone, Appellants, v. The BREVARD COUNTY BOARD OF COMMISSIONERS, Appellee.
    No. 79-127.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    Joe Teague Caruso, Cocoa Beach, for appellants.
    Frank J. Griffith, Jr., Titusville, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants Robert C. Hoffman, James C. Koehler, and Loren W. Houston, comprising a joint venture known as R.C.H. Investments, and Harry J. Stone appeal a declaratory judgment which held that the Board of County Commissioners acted lawfully in denying a requested zoning change.

Appellants petitioned the County Planning and Zoning Board to change the zoning classification of sixty acres of land in Brevard County situated between Long Point Park and Sebastian Inlet State Park. They planned to develop a travel trailer park on the property and a change of zoning from “General Use” (GU) to “Travel Trailer Park” (TTP) was necessary. The County Planning and Zoning Board recommended to the Board of County Commissioners that the application be denied because it failed to comply with the County Beaches Land Use Plan, would set an undesirable precedent and would be incompatible with present uses in the surrounding area.

The question raised on appeal is whether the trial court erred in finding that appellants’ application for the zoning change was not in conformity with the county’s land use plan and in ruling that appellee Board of County Commissioners properly denied the application.

Appellants contend that the requested zoning change conforms to the Beaches Land Use Plan because the plan provides that the area in which appellants’ land is located:

Should be retained for public recreational uses in conjunction with limited transient camping facilities.

Appellee responds that the County Planning and Zoning Director testified that this language should be interpreted as meaning that the area be preserved for public recreation and open space and that a travel trailer park is a commercial development which cannot be viewed as a recreational development contemplated by the plan.

Zoning regulations are in derogation of private rights of ownership and should be interpreted in favor of the property owner and the words used should be given their broadest meaning absent a clear intent to the contrary. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973); Halifax Area Council on Alcoholism v. City of Daytona Beach, 385 So.2d 184 (Fla. 5th DCA 1980). While the plan does not qualify as a zoning regulation in the sense that it is more a set of guidelines, there is no logical reason why the Rinker principle enunciated above should not apply. There is no mention of a commercial/non-commercial distinction. Giving the broadest meaning to the language supports a finding that a commercial travel trailer park is encompassed within the plan.

However, the plan, being merely a set of guidelines, does not rigidly bind the Board of County Commissioners in zoning decisions. As stated in Miles v. Dade County Board of County Commissioners, 260 So.2d 553, 555 (Fla. 3d DCA 1972):

Prior policies or plans of development of an area as reflected by the zoning are not necessarily controlling on the legislative body. They may not operate to render invalid the application of new policies or plans for development to or in an area, when the latter reasonably may have become basis for new or amendatory zoning legislation relating thereto, because of needs arising from increased or shifting population, or for other reasons properly cognizable as affecting the zoning for an area.

Therefore, since the Board of County Commissioners was not bound to rezone the property in strict adherence to the plan, the question is whether a reasonable or “fairly debatable” basis exists for the Board’s action. Wolff v. Dade County, 370 So.2d 839 (Fla. 3d DCA 1979). A zoning regulation will not be sustained unless it bears a substantial relation to the public health, safety, morals, or welfare. Allapattah Community v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980). One who seeks to set aside a particular zoning decision must clearly demonstrate that it is not even “fairly debatable” that no such relationship exists. Ailapattah at 392. Here, appellants merely claim that the evidence supporting the Board’s decision was primarily based upon citizen comments but they fail to establish in any way that the decision denying rezoning was not “fairly debatable.”

Therefore, the trial court’s finding that the Board’s decision had a reasonable and fairly debatable basis is affirmed.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . See section 14-61, Brevard County Code, which provides:
      It is hereby declared that the intent and purpose of said plan is to provide an official guide and advisory planning tool for the orderly future development and use of land within said unincorporated beach area for use by the Board of County Commissioners of Brevard County, the Zoning Board of Bre-vard County [and other governmental boards and agencies],

      . See also Wolff v. Dade County, 370 So.2d 839 (Fla. 3d DCA 1979), wherein the court affirmed the county’s refusal to order an applicant’s land be rezoned from an agricultural classification to one allowing residential development even though the county Master Land Use Plan designated this land for development.

      .Appellants, in their brief, request that this matter be sent back to the Board of County Commissioners since the Board acted under the assumption that the application was not in compliance with the Land Use Plan. However, the Board decided to uphold the decision made by the County Planning Board that:
      (1) The application did not comply with the plan;
      (2) Approval would set an undesirable precedent; and
      (3) The requested change would not be compatible with uses in the surrounding area.

        Therefore, the decision denying rezoning was based on more than the mere belief that the use would be incompatible with the plan.


author: SHARP, Judge.

text:
    Freddie L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 80-390.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 1980.
    Freddie L. Brown, pro se.
    No appearance for appellee.
   SHARP, Judge.

The appellant filed a pro se motion under Florida Rule of Criminal Procedure 3.850 seeking relief from the judgment and sentence and addressing matters which can be raised in a collateral attack. He sought to have his convictions of aggravated battery and burglary vacated and to have a new trial because he alleged he was denied effective assistance of counsel. The appellant’s motion is legally sufficient and, if true, would entitle him to relief.

Where the motion is legally sufficient on its face, it is the duty of the trial court to comply with Florida Rule of Criminal Procedure 3.850 by holding an eviden-tiary hearing to determine if the relief should be granted. However, if the case file and record conclusively show petitioner is entitled to no relief, then the court should deny relief in an order specifically setting out the reasons for the denial, and it should attach portions of the case file and record to sustain its determination. Neither action was taken by the court below. Therefore the order denying appellant’s motion under Florida Rule of Criminal Procedure 3.850 is reversed, and this cause is remanded to the trial court with instructions within 60 days to (a) attach that portion of the case file and record which refutes appellant’s allegations or (b) conduct an evidentiary hearing on appellant’s allegation of ineffective assistance of counsel. Gunter v. State, 380 So.2d 1198 (Fla. 5th DCA 1980); Lesley v. State, 370 So.2d 85 (Fla.2d DCA 1979); Payne v. State, 362 So.2d 688 (Fla.2d DCA 1978). If the trial judge is unable to conduct such hearing, the chief circuit judge shall reassign the case.

REVERSED and REMANDED for further proceedings.

ORFINGER and COBB, JJ., concur.


author: PER CURIAM.

text:
    Ray SANDSTROM, Appellant, v. STATE of Florida, Appellee.
    No. 79-2119.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Rehearing Denied Dec. 17, 1980.
    Ray Sandstrom, of Sandstrom & Haddad, Fort Lauderdale, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order holding appellant in direct criminal contempt. First, appellant attacks the validity of the underlying order. Since the trial court had jurisdiction to render the underlying order and the order was not transparently invalid or a mere frivolous pretense to validity, the propriety of said order became insulated from attack upon the contemptuous violation thereof. Sandstrom v. State, 309 So.2d 17 (Fla.4th DCA 1975), cert. discharged 336 So.2d 572 (Fla.1976) relying, in part, on Walker v. City of Birmingham, 388 U.S. 307, 315, 87 S.Ct. 1824, 1829, 18 L.Ed.2d 1210 (1967); In re Estate of Coveney, 324 So.2d 681 (Fla.4th DCA 1976).

Appellant’s next assertion that his failure to appear in court on the day and time ordered could not be the basis for a direct contempt, but only an indirect contempt, is erroneous. Aron v. Huttoe, 258 So.2d 272 (Fla.3d DCA 1972), adopted 265 So.2d 699 (Fla.1972); see James v. State, 385 So.2d 1145 (Fla.3d DCA 1980).

Finally, in open court the trial court orally sentenced appellant to twenty-four hours in jail in addition to a fine of $2,000. When reduced to a writing the order recited jail time of forty-eight hours as well as the $2,000 fine. The written order must be corrected to conform to the oral pronouncement. Byrd v. State, 388 So.2d 1362 (Fla.5th DCA 1980); Towson v. State, 382 So.2d 870 (Fla.5th DCA 1980); Sampson v. State, 375 So.2d 325 (Fla.2d DCA 1979); Chester v. State, 355 So.2d 509 (Fla.2d DCA 1978); Sing Eng v. State, 350 So.2d 559 (Fla.2d DCA 1977).

REMANDED for correction of the sentence; otherwise AFFIRMED.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Paul C. MUELLER, Appellant, v. THE FLORIDA BAR, an association, and Paul Gross, Appellees.
    No. 79-2427.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.

      Thomas E. Hunt of Thomas E. Hunt, P. A., Fort Lauderdale, for appellant.
    Todd A. Cowart of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees.
   HERSEY, Judge.

Paul C. Mueller, a member of The Florida Bar, was charged by complaint of The Florida Bar with eleven counts of misconduct. Finding him guilty of some of the charges the supreme court disbarred him effective October 3, 1977. The Florida Bar v. Mueller, 351 So.2d 960 (Fla.1977).

On the day following issuance of this opinion the following article appeared in the Fort Lauderdale News:

FT. LAUDERDALE
Court Disbars
Local Attorney
A local attorney was disbarred by the Florida Supreme Court yesterday for a variety of alleged improper activities, including filing false allegations against a former partner and his secretaries, false accounting to a client, improper plea bargaining and dual representation. In a 4-1 decision, the high court revoked the right of Paul C. Mueller, who has an office at 524 S. Andrews Ave., to practice law in Florida. A referee recommended a 30-month suspension for Mueller, an unsuccessful 1970 candidate for Fort Lauderdale small claims court, but the recommendation was overruled.

Subsequently Mueller filed an action which included claims for defamation and for malicious prosecution, naming as defendants The Florida Bar and Paul Gross. Mr. Gross was an agent of The Florida Bar in the capacity of assistant staff counsel. His duties included referring complaints to grievance committees and prosecuting grievance matters.

The gravamen of Mueller’s complaint is that two of the offenses mentioned in the newspaper article, which also appeared in other publications and was aired on radio and television, are totally untrue, were published maliciously and without authority, and that the publication therefore constitutes libel per se; that groundless client complaints were made the basis for grievance proceedings; and that other complaints were solicited by the defendants and made the basis for grievance proceedings.

The first count of the amended complaint, dealing with publication, seeks damages for defamation and the second and third counts allege malicious prosecution.

The trial court dismissed the complaint with prejudice, finding that both defendants were insulated from liability by virtue of an absolute privilege. Mueller appeals on the grounds that Gross acted beyond the scope of his authority in releasing information to the news media, thus subjecting the defendants to liability for defamation, and that the complaint states a cause of action for malicious prosecution.

The question is whether The Florida Bar and its duly authorized agents enjoy immunity from liability for defamation or malicious prosecution by virtue of an absolute privilege. The answer is a qualified yes. However, we limit our consideration and therefore the holding in this case to the liability of The Florida Bar and its agents for defamation and malicious prosecution under the circumstances alleged in the amended complaint.

In the area of defamation, the rule in Florida is that words spoken or written by public servants in judicial, legislative and executive activities are protected by absolute privilege from liability for defamation. McNayr v. Kelly, 184 So.2d 428 (Fla.1966), adopting the rule and rationale of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). As the latter case points out, the privilege extends only to words or acts within the scope of the authority of the public servant. Ward v. Allen, 11 So.2d 193 (Fla.1942); Saxon v. Knowles, 185 So.2d 194 (Fla. 4th DCA 1966); Knight v. Starr, 275 So.2d 37 (Fla. 4th DCA 1973). We have previously distinguished absolute privilege from the concept of sovereign immunity. Cobbs Auto Sales, Inc. v. Melvin Coleman, 353 So.2d 922 (Fla. 4th DCA 1978).

Article V, Section 15, Florida Constitution (rev. 1972) provides:

Attorneys; admission and discipline.-The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

Rule 11.03 of Article XI of the Integration Rule of The Florida Bar designates The Florida Bar and its staff counsel as agencies of the supreme court for the purpose of administering its jurisdiction. The Florida Bar is thus an arm and part of the judiciary, one of the three co-equal branches of state government, The Florida Bar v. Lewis, 358 So.2d 897 (Fla. 1st DCA 1978). It follows that The Florida Bar and its agents acting within the scope of their office are protected from liability for publication of defamatory matter by an absolute privilege.

The remaining question is whether Paul Gross was acting within the scope of his office or authority when he issued the media release which is the subject of appellant’s complaint. For purposes of testing the sufficiency of the complaint we accept, as the trial court was bound to do, the truth of the well-pleaded allegations, including Gross’s authorship of the release. Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla.2d DCA 1975).

Precedent indicates an inclination to give a broad definition to the term “scope of office” and its synonyms. Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th DCA 1979); Kribs v. City of Boynton Beach, 372 So.2d 195 (Fla. 4th DCA 1979). We are persuaded that public policy dictates adherence to that philosophy.

Particularly apt to the situation which confronts us on this appeal is the following language from Johnson v. Carhart, 353 So.2d 874, 876 (Fla. 3rd DCA 1977):

By the foregoing, it is shown that the absolute immunity of such an official operates to relieve him from the necessity of being subjected to trial of an action based on his privileged conduct, notwithstanding that a complaint for libel which is filed against him may allege, as a conclusion, that he is without such immunity or was acting beyond the scope of his duty or office, where, as in this case, the complaint and its exhibits disclose the action of the official was taken in the interest of the public good and thereby within the scope of his duties and responsibilities, notwithstanding the allegations in the complaint to the contrary.

In that case, the prosecutor wrote a letter to the Chief of Police suggesting that a former policeman seeking reemployment with the police department had lied at his criminal trial. The test relied on by the court, as suggested by the quoted language, is whether the action taken by the prosecutor in writing the letter was “in the interest of the public good.” Dismissal of the libel action filed by the former policeman was affirmed.

It was clearly within the scope of the authority of staff counsel to advise not only appellant’s clients but also his prospective clients of appellant's disbarment. The latter category consists of the public at large. Thus, dissemination of the press release was in the interest of the public good and therefore absolutely privileged.

The absolute privilege attaches to staff counsel’s entire action and effectively bars further inquiry into either the accuracy of the information released or the motives for releasing it. The rationale behind this rule was explained by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949):

In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

We have previously indicated that our inquiry will here be limited to The Florida Bar and its agents and will not concern itself with other categories of public servants. From this perspective we now consider the counts sounding in malicious prosecution. We agree with appellant’s contention that malicious prosecution will lie against a public officer in a proper case. Ward v. Allen, 11 So.2d 193 (Fla.1942).

The distinction drawn by appellant between Counts II and III appears to be that the grievance matters alleged in Count III were initiated as a result of solicitation by the defendants. We have here what is sometimes referred to as a distinction without a difference. We are not aware of any rule or policy prohibiting The Florida Bar from actively seeking (soliciting, if you will) complaints against particular members of the bar or members of the bar in general. The current vogue is to publicize and emphasize the avenues open to aggrieved members of society victimized by unscrupulous counsel. Both the quality of the bar and its public image have been enhanced by this trend. The allegation that certain complaints were solicited is therefore sur-plusage.

The initiation of grievance matters is a prosecutorial function of The Florida Bar. Appellant suggests that it is an administrative function and therefore not privileged, relying on Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). We do not find in Imbler the distinction postulated by appellant. The Imbler court ruled that a state prosecuting attorney was absolutely immune from liability for allegedly depriving another of constitutional rights in violation of the Civil Rights Act, 42 U.S.C. § 1988. The opinion indicated that immunity would not be denied even if the prosecutor had knowingly used perjured testimony, intentionally withheld exculpatory evidence or failed to disclose facts casting doubt on the state’s evidence. Mention was made of the dual aspects of the prosecutor, one administrative and the other prosecutorial, but no difference in application of the doctrine of immunity or absolute privilege is supported by the Imbler opinion.

The rule of prosecutorial immunity insulates The Florida Bar and its agents from liability for malicious prosecution in an action brought against them by a member of the bar against whom a grievance has been filed, regardless of the motive for that filing and without regard to whether or not there was probable cause for such filing. In Stone v. Rosen, 348 So.2d 387 (Fla. 3rd DCA 1977) our sister court held that there is an absolute privilege on the part of an individual to file a complaint against a member of the bar. The court concluded that such an individual is afforded an absolute privilege and therefore could not be liable for malicious prosecution in making such a complaint. The reasons for this holding, in which we concur, apply as well to agents of The Florida Bar carrying out their official functions as they do to the disgruntled client. The Stone court explained:

Members of the legal profession are accorded rights and privileges not enjoyed by the public at large; the acceptance of these carries with it certain responsibilities and obligations to the general public. For the sake of maintaining the high standards of the profession and disciplining those who violate the Cannons of Legal Ethics, one who elects to enjoy the status and benefits as a member of the legal profession must give up certain rights or causes of action which, in this instance, is the right to file an action against a complainant who lodges an unsuccessful complaint with the Grievance Committee of The Florida Bar. Id. 389.

Whether phrased in terms of immunity or in terms of absolute privilege makes little significant difference. We find that in either event The Florida Bar and its agents acting within the scope of their office are not subject to liability for defamation or malicious prosecution in situations analogous to those alleged in the amended complaint filed in this case.

We affirm the order of the trial court dismissing the amended complaint with prejudice.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    Irma L. STACH, Appellant, v. William Earl BARTSCH, Individually, and as Personal Representative of the Estate of Henry W. Bartsch, Deceased, Appellee.
    Nos. 80-381, 80-893.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Rehearing Denied Dec. 16, 1980.
    Robert Jackson, Vero Beach, for appellant.
    Richard Joseph Saliba and Bernard F. Grail, Jr., of Grail & Saliba, Vero Beach, for appellee.
   PER CURIAM.

Affirmed. See In Re: Estate of Hammerman, 387 So.2d 409 (Fla. 4th DCA 1980) and Allen v. Gore, 387 So.2d 535 (Fla. 4th DCA 1980).

ANSTEAD and HURLEY, JJ., and WARREN, LAMAR, Associate Judge, concur.


author: HOBSON, Acting Chief Judge.

text:
    Martha B. WITHERS, Appellant, v. Robert W. WITHERS, Appellee.
    No. 79-817.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1980.

      John W. Boult, Tampa, for appellant.
    Stephen W. Sessums of Albritton, Ses-sums & McCall, Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Martha B. Withers appeals a postdecretal order terminating alimony payments. She argues, inter alia, that evidence before the trial court failed to show a change of circumstances sufficient to justify termination of alimony. We agree and reverse.

The parties were divorced in January, 1964. The final judgment of dissolution provided $500 per month permanent alimony from appellee, Dr. Withers, to appellant. By a subsequent order dated January 29, 1969, the alimony was reduced to $450 per month.

In October, 1978, Dr. Withers filed a motion for termination of alimony payments grounded upon three assertions: 1) that children who were minors at the time of the initial decree were now adults; 2) that the wife was a registered nurse capable of full self-support without the assistance of alimony; 3) that the husband had paid the wife $30,000 in settlement of the wife’s claim to an interest in certain real estate and stock.

The final order terminating alimony payments made the following findings of fact: 1) that the children of the parties were now adults; 2) that Dr. Withers was over sixty years of age and was not physically able to work as much as he did at the time of the final decree of divorce; 3) that Martha Withers was a registered nurse and was able to earn considerably higher wages now than she did several years ago when she commenced her employment as a registered nurse; 4) that Martha Withers resided in Fort Pierce where she was gainfully employed as a registered nurse, but had neither sold nor rented her home in Tampa, even though she no longer lived in it; 5) that Martha Withers had sufficient assets and income to support herself properly without further alimony; 6) that Florida law provided that women who are capable of supporting themselves should do so without alimony; 7) that the court was authorized to modify or terminate alimony based on changes in circumstances, such as the children reaching their majority, where the wife is gainfully employed on a full-time basis and accumulating assets and income.

DISCUSSION

The applicable rule in the instant case is that, in order to terminate permanent, periodic alimony, the complaining party must clearly show a substantial change in the circumstances of one or both parties, which circumstances must not have been present and contemplated at the time of the final judgment of dissolution. The complaining party must allege that he or she is no longer able to pay any amount of alimony or that the recipient is able to support himself or herself through their own efforts or resources.

Applying this rule to the evidence presented in the instant case, we find that:

1) Dr. Withers’ estate was estimated to be approximately $750,000. His gross professional income in 1978 was $70,000 with a net of $37,000. His trust income totalled $14,500, interest income $5,000, and rental income $70,000. Dr. Withers’ home was valued at $100,000 with a $50,000 mortgage.

2) At the time of final hearing on the motion, Martha Withers netted approximately $660 per month from her employment and had $2,000 in savings. Her expenses exceeded her income by about $600 per month. Her house in Tampa was valued at $19,000 on which there was a $9,000 mortgage. The house was occupied by one or more of the parties’ adult daughters who, according to Martha Withers, were in dire financial straits. For this reason, she did not charge rent on the home.

3) Following the 1964 divorce, the marital home was titled in the parties’ joint names. When Dr. Withers failed to pay his income taxes for that year, the IRS seized the home and subsequently sold it back to him in his name alone. Martha Withers’ efforts to enforce her interest in the home resulted in a $30,000 settlement, of which she netted approximately $17,000 after attorney fees.

4) Dr. Firestone, a family practitioner, testified that in his opinion it was “questionable whether Mrs. Withers will be able to work as a nurse in any capacity. I think her capacity to work is marginal and she could possibly sit at a desk and answer the phone and keep some notes but that’s about all she can do presently.”

5) Dr. Gonzalez, a psychiatrist, testified that Martha Withers’ condition “has deteriorated throughout the years a lot.” She continues to suffer from chronic depression and chronic alcoholism and “she will not be able to sustain any gainful activity for any length of time.”

6) Martha Withers testified that due to her current physical and mental condition, her present employment as a nurse is on a temporary, probationary basis.

7) Martha Withers was an alcoholic at the time of the 1964 dissolution.

8) The sale of the marital home was contemplated at the time of the 1964 dissolution.

In light of these facts, we hold that Martha Withers is not presently able to provide herself with a reasonably adequate standard of living. Dr. Withers has the present ability to pay $450 per month permanent alimony. The fact of Martha Withers’ alcoholism and related problems is not a substantial change in circumstances, but was considered by the court in granting the 1964 dissolution on the grounds of “habitual intemperance.” Not only was the sale of the marital home contemplated in 1964, but Martha Withers’ share of the proceeds would have netted her nearly twice as much had she not been forced to resort to a judicial enforcement of her interest. Dr. Withers’ health problems alone do not suffice to justify termination of his alimony obligation absent a showing that he is not financially able to pay $450 per month. Osman v. Osman, 280 So.2d 67 (Fla. 3d DCA 1973).

The fact that Mrs. Withers allows her adult daughters to live rent-free in her Tampa house is not, in and of itself persuasive on the question of alimony termination. In Horner v. Horner, 222 So.2d 791 (Fla. 2d DCA 1969), we held that a former wife’s use of alimony payments for alcohol and drugs would not serve as a basis to relieve the former husband from alimony payments where the husband did not allege his inability to continue to make the payments. We would scarcely be inclined to terminate the instant payments because the former wife contributes to the welfare of her children out of her meager resources.

For the reasons stated, we reverse the final order terminating alimony payments and reinstate the $450 per month permanent alimony.

BOARDMAN and CAMPBELL, JJ., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Mike KENNEDY, Appellee.
    No. 80-1029.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Kevin K. Broderick, Lakeland, for appel-lee.
   CAMPBELL, Judge.

The state charged Mike Kennedy with violation of section 319.33(l)(d), Florida Statutes (1979), alleging that he did sell or offer to sell a motor vehicle on which the manufacturer’s serial number had been destroyed, removed, covered, altered or defaced with knowledge of such destruction, removal, covering, alteration or defacement. Kennedy filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state traversed, adding additional facts. After hearing, the court granted Kennedy’s motion to dismiss. The state appeals. •

The trial court’s order granting the motion to dismiss made the following findings.

Mike Kennedy is president and principal stockholder of A1A Auto Parts, Inc., a Florida corporation.

On or about January 1, 1979, A1A purchased a 1976 Buick Regal and a 1977 Buick Regal. Both automobiles had been damaged prior to purchase. The 1977 Buick was damaged at the front end, the cowl section, and the left door. The 1976 Buick was damaged at the left quarter section, deck lid, and rear bumper.

State Farm Insurance Company had determined the 1976 Buick to be a total loss prior to its purchase by A1A. Consequently, the Buiek’s title was surrendered to the Florida Department of Motor Vehicles, and it was classified as “salvage.”

A1A cut both Buicks through the front windshield posts and across the floor at the doors. It then welded the 1976 Buick front cut to the 1977 Buick. The left door of the 1976 Buick was placed in the 1977 Buick, the front windshield was replaced, and the vehicle was painted. Interior work was performed on the vehicle, and the original motor was replaced by the motor from the 1976 Buick. The vehicle was then taken to Jim Simpson’s Auto Sales for cleanup and retail sale.

Approximately one week after the vehicle was transferred, an employee of A1A called Jim Simpson’s Auto Sales to obtain a list of vehicle identification numbers (VIN) from the vehicles delivered to Jim Simpson’s in order to compare them to a list of VIN’s from titles held by A1A. During this check, A1A discovered that the Buick’s VIN plate did not conform to the title certificate.

Kennedy sent an employee to Simpson’s to retrieve the Buick. The 1977 VIN plate was placed on the cowl section of the Buick over the 1976 VIN plate. A1A then returned the Buick to Simpson’s for retail sale.

Kenneth Folsom later purchased the car from Jim Simpson’s.

We are bound by the facts presented to the trial court. Kennedy, in his motion to dismiss, alleged that the correct VIN plate was on the vehicle. The state did not challenge this allegation in its traverse. Based on these undisputed facts, we must find that Kennedy did not violate section 319.-33(l)(d) as the proper VIN plate was not covered nor was an incorrect plate displayed. The facts may demonstrate that appellee violated some other provision of chapter 319; however, we do not address that question.

Consequently, the trial court’s order dismissing the information is affirmed.

OTT, Acting C. J., and RYDER, J., concur.


author: VANN, HAROLD R., Associate Judge.

text:
    C. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-334.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.

      Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ. and VANN, HAROLD R., Associate Judge.
   VANN, HAROLD R., Associate Judge.

Appellant seeks review of an order of the trial court, which adjudicated the appellant a delinquent. By this appeal, the appellant alleges the trial court erred in failing to grant his motion for discharge pursuant to Florida Rule of Juvenile Procedure 8.180, in that the appellant was denied his right to speedy trial.

We agree and reverse the order appealed. The appellant was taken into custody October 4, 1977 on a charge of attempted purse snatching. Trial date was set for December 21, 1977, at which time the appellant’s special public defender failed to appear because he had not been notified of the appointment. At this time, the trial court orally continued the cause; however, the trial judge did not enter an order specifically extending speedy trial reciting the reasons for the extension as required by Florida Rule of Juvenile Procedure 8.180(c). Thereafter, the speedy trial period elapsed and the appellant moved for discharge, which was denied. He was then tried and adjudicated delinquent.

An oral continuance on the court’s own motion does not extend the time for speedy trial, without a finding that the interests of justice will be served by such extension and a recitation of the reasons for such extension, as required by Florida Rule of Juvenile Procedure 8.180(c). See: In Interest of J.R.S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979); In Interest of R.L.P. v. Korda, 380 So.2d 1329 (Fla. 4th DCA 1980).

Therefore, absent a showing that the appellant was in any way at fault in delaying the adjudicatory hearing, we must reverse the order appealed and remand the cause to the trial court with instructions to discharge the child.

Reversed and remanded with directions.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Michael Craig SCHUYLER, Appellee.
    No. 79-1386.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.

      Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Robert R. Schrank and Howard Blum-berg, Asst. Public Defenders, for appellee.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   BASKIN, Judge.

The state appeals the trial court’s order granting defendant’s motion to suppress statements, admissions, confessions, and physical evidence. The trial court found the initial stop of the defendant was without probable cause or reasonable suspicion and that the Dade County arresting officer acted beyond his jurisdiction when he arrested defendant Schuyler in Broward County. We affirm.

Off-duty Dade County Public Safety Department Officer Garrison was talking to a neighbor when he noticed defendant Schuyler walking and peering between houses. Because the Dade County neighborhood had recently been the scene of several burglaries, and a search had been conducted an hour earlier for a suspect, he called for police. When questioned, defendant Schuyler explained he was “walking through”, and the police departed. Two hours later, Officer Garrison saw defendant and another person who had a bright yellow towel in his hand. He thought “there may be a good possibility that somebody had just removed something that possibly didn’t belong to them” and followed the two suspects in his car. When the two men crossed the street into Broward County, Officer Garrison blocked their path and showed his badge and identification while advising them that he was a police officer and that he wanted to find out what was “going on in the area.” During Schuyler’s response, Officer Garrison looked down at the towel and noticed it took on a familiar shape, the general shape of a firearm. He asked if he could see the towel, and although defendant Schuyler at first refused, Schuyler subsequently handed Officer Garrison the towel stating he had found it. Officer Garrison recognized the bulge in the towel to be a revolver and placed it in the front seat of his car without looking at it. At that point, the two men were under arrest only for the offense of carrying a concealed firearm. Officer Garrison was not aware that another burglary had recently been committed. He knew of the burglary that had occurred earlier in the morning and the “close possibility” that Schuyler matched the description. He thought this gun looked like the gun taken during the first burglary. When Schuyler indicated he had never before been in the neighborhood, Officer Garrison, wishing to investigate further, asked both men to accompany him to a telephone. The two men walked in front of him to a nearby telephone booth, from which he called the 911 number that switched into the Broward County Sheriff’s Office. The Broward Sheriffs Office responded and sent for Dade County units as well. Information received by Teletype revealed that the gun belonged to Police Officer Roper, a neighbor of Officer Garrison. Other items taken from Officer Roper were later found to be in defendant Schuyler’s pocket. The two men were advised they could be arrested in either Dade County or Broward County, but voiced no objection to walking into Dade County.

By stipulation at the motion to suppress hearing, the court considered only the deposition of Officer Garrison.

The trial court considered two issues: the legality of the stop, and the arrest by Officer Garrison outside his jurisdiction in a case where there was” no hot pursuit. The court also decided the nonexistence of probable cause to believe a felony had been committed.

Considering the question of the officer’s jurisdiction first, we observe that a municipal officer may conduct a lawful investigation outside his territorial jurisdiction, but the subject matter of the investigation must have originated in his own jurisdiction. State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978). Officer Garrison, had he been on duty, and had he lawfully stopped defendant Schuyler, could have continued his investigation in Broward County.

Turning to the legality of the stop, we find that the court in Chapman clearly stated the law:

An off-duty municipal police officer outside his jurisdiction has no right of arrest other than as a private citizen. Schachter v. State, 338 So.2d 269 (Fla. 3d DCA 1976). A private person has a common law right to arrest a person who commits a felony in his presence, or to arrest a person where a felony has been committed, and where the arresting citizen has probable cause to believe, and does believe, the person arrested to be guilty. Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962). Clearly our stop and frisk law does not authorize detention by private persons.

State v. Chapman, supra at 264.

If Officer Garrison, an off-duty police officer, had proceeded under common law as a private citizen and had based his stop on probable cause to believe defendant Schuyler was guilty of having committed a felony, the stop and subsequent actions would be valid. If, on the other hand, Officer Garrison predicated his stop on mere founded suspicion, his acts would constitute a stop and frisk by a private person, not authorized by stop and frisk law. State v. Chapman, supra.

The testimony clearly discloses that at the time of the stop Officer Garrison was unaware that the burglary of Officer Roper’s residence had occurred. The only connection between defendant Schuyler and the earlier burglary was a slight similarity to the description and the fact that defendant Schuyler did not appear to belong in the neighborhood. These factors are insufficient to establish probable cause to believe defendant Schuyler had committed a felony. Coladonato v. State, 348 So.2d 326 (Fla.1977); Hall v. State, 366 So.2d 865 (Fla. 4th DCA 1979). The state’s argument is therefore without merit.

The trial court correctly suppressed the evidence and statements pursuant to an unlawful stop of defendant Schuyler.

Affirmed.

      . The boundary line between Dade and Bro-ward Counties intersects this neighborhood.


text:
    Mildred FARRINGTON, Appellant, v. Prince FARRINGTON, Appellee.
    No. 79-1624.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.

      Ralph L. Flowers, Fort Pierce, for appellant.
    Richard M. Gale, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Rulings made by the trial court in a dissolution of marriage proceeding are the subject of this appeal. We find the trial court committed error when it ordered partition of the house and businesses. The awards with regard to alimony, child support, and attorney’s fees were correct. We reverse in part and affirm in part.

The Farrington marriage lasted fifteen years and produced one child, a daughter. When the marriage was dissolved, the husband was fifty-five years old, the wife was forty-two years old, and the daughter, thirteen years old. The husband is a retired policeman with a net retirement pension of $752.16 a month, less a $181.81 deduction for a life insurance policy, and owns stock representing a $3,000 investment in a corporation that rents an apartment building. The husband owns rental property including a house from which he derives rental income of $225.00 a month. He also receives income from the operation of two coin laundries.

The wife operated the parties’ jointly-owned barbecue business with great success, in addition to performing her duties as wife and mother. She has no assets other than the jointly-owned business, jointly-owned home, and other business properties which return monthly rent. During the marriage, rents from the various business properties were retained by the husband who furnished his wife $300.00 a week for her services as manager of the barbecue. This money was used to defray household expenses. The wife received no salary although the barbecue earned a net profit of at least $1,000 per week.

In the final judgment, the trial court granted custody of the minor child to the wife and required the husband to pay $35.00 per week for child support. The court granted the husband exclusive ownership of a house he owned prior to his marriage and denied the wife a special equity in it. The court ordered the parties’ marital home and other real property to be partitioned and sold. It awarded the wife possession of the barbecue pit and the husband possession of the laundries until their sale. The wife received possession of the home until its impending sale. During that time, she was required to make payments from the proceeds of the barbecue. The wife was denied permanent possession of the home, permanent and lump sum alimony, attorney’s fees and costs. She challenges these rulings in this appeal.

We examine first the award of $35.00 per week for child support. Although it appears to us rather low, no abuse of the trial court’s discretion has been shown. Goldstein v. Goldstein, 310 So.2d 361 (Fla.3d DCA 1975). There can be no finding of an abuse of discretion if reasonable men could differ as to the propriety of the trial court’s action. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Price v. Price, 389 So.2d 666 (Fla.3d DCA 1980). We therefore affirm this award.

Concerning the house located at 27 N. W. 43 Terrace, acquired by the husband prior to his marriage, we find no error in the court’s refusal to grant the wife a special equity. The term “special equity” was judicially created to describe a vested interest in property brought into the marriage or acquired during the marriage from a source unconnected with the marital relationship. Canakaris v. Canakaris, supra; Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976). Appellant has no such vested interest. See Ingram v. Ingram, 379 So.2d 955 (Fla.1980).

Since the court awarded this property to the husband, we direct that arrangements be made to remove the wife from further obligation on its mortgage payments. In the alternative, we order that she be awarded a sum to offset payments she may be required to contribute for future mortgage payments as is necessary to do equity between the parties. Ingram v. Ingram, supra.

We find no error in the court’s denial of a special equity in the barbecue pit to the wife. Although we note that the success of the business was mainly due to the wife’s efforts, those efforts do not suffice to establish a “special equity” under Florida law nor has she established any evidence of special equities in the other business properties. The evidence supports the court’s decision.

The wife is entitled to live in the marital home until the child reaches the age of eighteen years. The award is directly connected to the husband’s obligation to pay support. Duncan v. Duncan, supra; Smith v. Smith, 378 So.2d 11 (Fla.3d DCA 1979), McNaughton v. McNaughton, 332 So.2d 673 (Fla.3d DCA 1976). We recognize that the supreme court in Duncan, supra, rejected the rule requiring termination of exclusive possession when the children attain the age of majority. Duncan states, however, “An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period.” Duncan v. Duncan, supra at 952 (emphasis supplied). We therefore hold that the husband’s obligation coincides with his duty to support the child, and we direct that the wife’s exclusive possession of the house should terminate upon the child attaining her majority. While she exercises exclusive possession, the wife need pay only those charges appropriate to her half-interest in the marital home now owned by the parties as tenants in common. Smith v. Smith, supra. We therefore reverse the provisions pertaining to partition of the marital home.

We find that the court committed error in ordering the business properties to be partitioned. First, the pleadings do not meet the requirements for partition. § 64.-041, Fla.Stat. (1975).

Second, no valid reason to sell a successful business such as the barbecue, which serves as a substantial foundation of income, appears in the record. The allegations by each party that the other was stealing, or the statement by the court that the business had no value, are not supported by the record. Arguments between the parties are not sufficient reason to require so harsh a result. We direct that the parties be permitted to operate the businesses as tenants in common. We therefore reverse the provisions for partition.

No error appears in the denial of lump sum alimony to the wife since the parties will be placed in equal positions with regard to their assets through ownership of their jointly owned properties as tenants in common. Canakaris v. Canakaris, supra. If partition becomes appropriate, either party may institute proper proceedings at a later date. For the same reason, each party was correctly ordered to bear his or her attorney’s fees and costs. Canakaris v. Canakaris, supra; Bullard v. Bullard, 380 So.2d 1090 (Fla.3d DCA 1980).

For these reasons, we reverse the decision of the trial court in part and affirm in part. We remand the cause for entry of a final judgment reflecting our rulings.


text:
    TRAVELERS INDEMNITY COMPANY OF AMERICA, Appellant, v. Jacqueline MORRIS, Appellee.
    No. 80-13.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellant.
    Flinn & Jennings and Gene Flinn, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

In 1977, the plaintiff-appellee secured a judgment against the appellant, Travelers, on a personal injury protection insurance claim. The trial court also awarded the plaintiff attorney’s fees under Section 627.-428, Florida Statutes (1977). The judgment and fee award were affirmed by this court, which also granted fees for the appellate services of the insured’s counsel. Travelers Indemnity Co. v. Morris, 360 So.2d 1262 (Fla.3d DCA 1978). Subsequently, the trial court entered the order now under review, awarding $2,500 for additional post-judgment services rendered by the appellee’s lawyer in the trial court. We reverse.

The present fee represents payment for counsel’s efforts in (a) securing payment of the p. i. p. benefits required by the judgment and (b) settling the record of unreported pre-judgment proceedings for use in the initial appeal. The award was not authorized for either class of services. First, the clear terms of Sec. 627.428-which must, in any event, be strictly construed, Hartford Accident & Indemnity Co. v. Smith, 366 So.2d 456 (Fla.4th DCA 1978)-permit fees only for services involved in obtaining a judgment against a carrier, and not for those required to effect compliance with, collection of, or execution upon that judgment. Lee v. Government Employees Ins. Co., 388 So.2d 346 (Fla.lst DCA 1980); see, Bohlinger v. Higginbotham, 70 So.2d 911, 916 (Fla.1954). Second, since we did not remand the issue to the lower tribunal as permitted by Fla.R.App.P. 9.400(b), the trial court lacked jurisdiction to award fees for services related to the earlier appeal. See, Winner v. Winner, 376 So.2d 924 (Fla.3d DCA 1979). The order below is therefore reversed and the cause remanded with directions to deny the appellee’s motion for additional fees.

Reversed.

      . Pursuant to Fla.R.App.P. 9.130(a)(4).

      . Proceedings, such as those involved here, for the settlement of the contents of an unreported hearing are obviously an integral part of the appellate, rather than the trial process. See, Fla.R.App.P. 9.200(b)(3). •

      . It must be conclusively presumed that our own award of appellate fees encompassed all the services relating to the appeal, including those now claimed. For this reason, the nature and extent of the services for which fees are sought should be referred to in the motion for attorney’s fees filed in the court of appeal under Fla.R.App.P. 9.400(b).


text:
    Byron CASSIDY, Aime Perise, Karen Perise, David Murray, Elizabeth Rusk and Guy Richer, Appellants, v. ICE QUEEN INTERNATIONAL, INC., Appellee.
    No. 80-161.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.

      Joel V. Lumer and G. T. Ramani, Miami, for appellants.
    Siegel & Siegel and Jerome R. Siegel, Margate, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The plaintiffs below seek review of an interlocutory order granting the motion of the appellee, Ice Queen International, Inc., an Ohio corporation, to dismiss the complaint on grounds of (a) lack of jurisdiction over the defendant and (b) misjoinder of “multiple claims by multiple parties.” Treating the improperly designated plenary appeal as an appeal under Fla.R.App.P. 9.130(a)(3)(C)(i) from a non-final order which determined jurisdiction of the person, we reverse the order below.

Neither ground asserted in the order supports the dismissal of the complaint. The defendant was qualified to do business in Florida and was properly served through its designated resident agent in Leon County. It was therefore plainly subject to the jurisdiction of the trial court. Confederation of Canada Life Ins. Co. v. Vega Y Arminan, 144 So.2d 805 (Fla.1962); Junction Bit & Tool Co. v. Institutional Mortgage Co., 240 So.2d 879 (Fla. 4th DCA 1970).

As to the misjoinder issue, Fla.R. Civ.P. 1.250(a) specifically provides that “[mjisjoinder of parties is not a ground for dismissal of an action.” See, Kennedy & Ely Insurance, Inc. v. American Employers’ Ins. Co., 179 So.2d 248 (Fla. 3d DCA 1965). Furthermore, the claims of the several plaintiffs that, induced by the same allegedly false representation, each signed separate but identical franchise agreements with the defendant, were in fact properly joined in a single action. Rosenwasser v. Frager, 322 So.2d 640 (Fla. 3d DCA 1975); Carbonell v. American International Pictures, Inc., 313 So.2d 417 (Fla. 3d DCA 1975).

On appeal, the defendant claims that the complaint was properly dismissed on another ground, that of improper venue. We disagree. Since the venue objection was not raised in the defendant’s motion to dismiss, which was heard and ruled upon below, it has been waived. Fla.R.Civ.P. 1.140(b), (g); see, Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980). In any case, it appears that venue was properly laid in Dade County under Section 47.051, Florida Statutes (1979). See, Mann v. Goodyear Tire and Rubber Co., 300 So.2d 666 (Fla.1974). At the least, Ice Queen did not carry its burden to plead and prove otherwise. Birdsall Shipping, S.A. v. Gallardo, 390 So.2d 437 (Fla. 3d DCA 1980); Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA 1980).

The order below is reversed and the cause remanded with directions to deny the motion to dismiss and for further proceedings consistent herewith.

Reversed.

      . The order is interlocutory, rather than final, because it merely granted the motion to dismiss and did not actually dismiss the complaint or the cause. Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Donnell v. Industrial Fire & Casualty Co., 378 So.2d 1344 (Fla. 3d DCA 1980).

      . We are authorized to do so by Fla.R.App.P. 9.040(c).