author: CAMPBELL, Judge.

text:
    Susan DECKER and Dick Decker, her husband, Appellants, v. GREAT AMERICAN INSURANCE COMPANY, Appellee.
    No. 80-954.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1980.
    Rehearing Denied Jan. 22, 1981.

      Paul Antinori, Jr. of Antinori & Thury, P.A., Tampa, for appellants.
    Michael F. Tew of Barr & Murman, P.A., Fort Myers, for appellee.
   CAMPBELL, Judge.

This appeal arises out of an accident between Mrs. Decker and an uninsured motorist. The Deckers seek reversal of an adverse final declaratory judgment which determined the rights of the parties under an insurance policy. The judgment determined that the Deckers were not entitled to underinsured motorist coverage limits in an amount equivalent to the bodily injury limits of the policy. The trial court, in making this determination, strictly construed the language of section 627.727(1), Florida Statutes (1979), as pertaining only to insurance policies delivered or issued for delivery in this state and found that Florida law, specifically section 627.727, does not apply to this case. We disagree and reverse.

On January 12, 1979, the Moore Group of Atlanta employed Mr. Decker, a permanent resident of Florida, as a traveling salesman for the state of Florida. On January 21, 1979, at the company’s home office in Atlanta, the Moore Group assigned to Mr. Decker the Toyota automobile which is the insured in this case. The company assigned the car for Mr. Decker to use in connection with company business in Florida. Thereafter, the car was exclusively garaged in Florida.

Mrs. Decker was seriously injured on February 24, 1979, in Tampa, while driving the Toyota to the post office to mail Mr. Decker’s .periodic reports to the Moore Group. Great American Automobile Association carried the insurance on the Toyota pursuant to a policy under which the Moore Group was the named insured.

Great American assumed the insurance coverage on the Moore Group’s entire automobile fleet through a policy issued on March 12, 1979, but having a retroactive effective coverage date of February 9,1979. The record indicates that on March 2, 1979, Great American confirmed to the Moore Group the binding of its automobile fleet with insurance including the $1,000,000 bodily injury limits, effective February 9,1979. That same communication acknowledged an understanding in regard to Mrs. Decker’s accident that “there was a serious loss earlier this week.” Great American notified the insured on March 13, 1979, that it was necessary to elect the statutory minimum uninsured motorist coverage and pointed out that in Florida it was $10,000/$20,000 bodily injury only. The insured, Moore Group, made the suggested election in writing on March 16, 1979. The policy itself was mailed from Ohio and delivered to the named insured in Atlanta, Georgia, on March 26, 1979.

The accident, therefore, occurred after February 9, 1979, the effective date of the policy, and prior to March 12,1979, the date of issuance. The accident was also prior to the named insured’s rejection of the maximum uninsured motorist coverage on March 16, 1979.

Also relevant is the fact that on February 23, 1979, Great American mailed to the named insured, the Moore Group, forty automobile insurance identification cards to be used by each “designated” insured, such as Mr. Decker. The forty cards consisted of ten for Florida, twenty for Georgia, and twenty all purpose cards. The insurance policy itself contains a general endorsement applicable to uninsured motorist limits and specifically lists minimum limits in Georgia, Tennessee, Alabama, Oklahoma and Louisiana, but does not mention a limit applicable to Florida.

Great American acknowledged to the Moore Group on March 26, 1979, that it did not require the Moore Group to notify it of interim changes in the schedule of automobiles covered or their location since the policy provided automatic coverage. A general endorsement to the policy extended the policy’s coverage to “occurrences taking place anywhere during the policy period.”

The insurer, Great American, and the named insured, the Moore Group, are sister companies or wholly owned subsidiaries of a parent company known as American Financial Corporation.

The question before the trial court was whether section 627.727 applies. If section 627.727 does apply, the policy limit in regard to uninsured motorist coverage would be equal to the $1,000,000 bodily injury limit of the policy, absent a prior rejection, particularly since the policy itself was silent as to any such limits as it pertained to coverage in Florida. Lumbermen’s Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978).

The pertinent parts of section 627.727 are as follows:

(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage....
(2) The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the company’s rating plan as may be selected by the named insured, ...

Florida Administrative Code rule 4-28.-02, was in effect at the time of the accident. It provided, in regard to increased limits of uninsured motorist coverage, that:

Evidence must be maintained by the company that such coverage was offered in limits up to the bodily injury limits of liability applicable to the policy. The applicant or insured may accept limits for uninsured motorist coverage in an amount less than the bodily injury limits of the policy.

Florida courts seem to hold uniformly that rejection of the increased uninsured motorist coverage must be an “informed rejection.” Aetna Casualty & Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA 1976). There is a division, however, as to whether Florida Administrative Code rule 4-28.02, required that rejection to be in writing. The First District has not required written rejection. Glover v. Aetna Insurance Co., 363 So.2d 12 (Fla. 1st DCA 1978). But see American Motorists Insurance Co. v. Weingarten, 355 So.2d 821 (Fla. 1st DCA 1978). The Third District has required rejection to be in writing. Cohen v. American Home Assurance Co., 367 So.2d 677 (Fla. 3d DCA 1979); Lumbermen’s Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978). The Federal courts have also required written rejection. Harris v. United States Fidelity & Guaranty Co., 569 F.2d 850 (5th Cir. 1978). We find that the better rule would be to require a written rejection. Since in this case the insurance policy was silent as to any reduced uninsured motorist coverage for Florida, the amount equivalent to the bodily injury liability coverage, as is provided for in the Florida statute, would apply, if the statute is applicable, regardless of whether there was some attempt at rejection prior to the written rejection. See American Motorists Insurance Co. v. Weingarten.

In Manchester Insurance & Indemnity Co. v. Jones, 317 So.2d 786 (Fla. 3d DCA 1975), which involved facts similar to those, here, the court decided against the insurer. The insured had made a deposit on a policy of automobile insurance. Shortly, thereafter he was involved in an accident. After the accident and while he was in the hospital, he signed a rejection of uninsured motorist coverage. Holding that rejection after the accident was ineffective regarding coverage at the time of the deposit or at the time of the accident, the court refused to assume from the rejection that it was the insured’s intent ab initio not to have uninsured motorist coverage.

The trial court here interpreted section 627.727 narrowly as being applicable only to policies delivered or issued for delivery in Florida regardless of whether or not the automobile insured was registered in or primarily garaged in Florida. As a consequence of that interpretation, the trial court then concluded that whether or when the named insured rejected the higher uninsured motorist limits was irrelevant and immaterial.

We find that the trial court’s interpretation of section 627.727 is not consistent with the primary public policy concerns which the uninsured motorist statute seeks to address. The purpose of the statute is not to protect the insurance carrier or the uninsured motorist, but is to extend protection to persons who are insured under a policy covering a motor vehicle registered or principally garaged in Florida and who are impaired or damaged in Florida by motorists who are uninsured or underinsured and cannot thereby make whole the impaired party. Brown v. Progressive Mutual Insurance Co., 249 So.2d 429 (Fla.1971); State Farm Mutual Automobile Insurance Co. v. Diem, 358 So.2d 39 (Fla. 3d DCA 1978).

Great American argues that to apply Florida law in this case would subject every insurer of a vehicle involved in any accident occurring in Florida to an application of Florida law regardless of whether the insured vehicle was registered in or principally garaged in Florida. Although Great American cites H. S. Equities, Inc. v. Hart ford Accident & Indemnity Co., 334 So.2d 573 (Fla.1976), and Aetna Casualty & Surety Co. v. Enright, 258 So.2d 472 (Fla. 3d DCA 1972), in support of its argument, such an argument is untenable and, in fact, is defeated by the reasoning and facts of both cited cases.

H. S. Equities, Inc. involved a security broker’s liability policy obtained by H. S. Equities from Hartford. A Florida resident brought suit against H. S. Equities and received judgment in his favor. H. S. Equities satisfied the judgment and then sought coverage under its policy. However, its notice of claim delivered in New York was late under New York law. H. S. Equities equated its position with that of the policyholder in Clay v. Sun Insurance Office, Ltd., 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229 (1964), wherein the court applied Florida law to a claim filed in Florida by a Florida resident on a policy purchased in Illinois. The court in H. S. Equities declined to follow Clay as it involved a personal property policy which ordinarily has the situs of the insured’s residence. The court found that New York law should be applied to H. S. Equities’ claim under the liability policy. The policy was applied for in New York, countersigned in New York, kept in New York, and premiums were paid in New York. The court considered those factors' and the fact that both the insurer and the insured were foreign corporations with their principal places of business in other states and concluded that there was no reason why the public policy of Florida should be invoked in behalf of the nonresident insured.

The court in H. S. Equities also considered the similarity of Aetna Casualty & Surety Co. v. Enright. In Enright, a New York resident, driving a car owned by another New York resident, collided in Florida with a car driven by an uninsured motorist. The New York driver and owner were covered by different policies extending uninsured motorist coverage. After settling for the policy limits on the owner’s policy, the New York driver sought recovery under his own policy. The insurer defended on the ground that the “other insurance” clause in the policy precluded recovery. The trial court held that the applicable Florida statute voided the “other insurance” or “excess coverage” clause on which the insurer relied. The District Court of Appeal reversed, declining to apply Florida law to an automobile insurance policy issued in New York to a New York resident, notwithstanding the fact that the accident occurred in Florida.

We find the instant case more closely related to Gillen v. United Services Automobile Association, 300 So.2d 3 (Fla.1974), relied on by the Deckers, and to the recent case of Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980). Both cases apply the policies and purposes of the law of the state having the greater demonstrable interest in the proceedings.

In Gillen, the court dealt with an insurance policy delivered in New Hampshire when the insureds were residents of that state. The insureds then moved to Florida giving the insurer notice of their move. The accident, which was the subject of the suit, occurred in Florida. At the time of the accident, the insureds had taken affirmative steps to establish residence in Florida, the insured vehicles were garaged in Florida, and the risk of the policy was centered in Florida. The court held that Florida law governed the policy, grounding this application on the substantial and paramount interest of Florida in protecting its citizens from inequitable insurance arrangements.

In Bishop, the supreme court receded from the lex loci delicti rule, which is that the substantive law applicable to personal injury actions is the law of the state where the injury occurred. Bishop arose out of the crash of a small plane en route from Florida to North Carolina for a holiday weekend. The passengers, the pilot, and the lessee of the plane were residents of Florida, and the holiday trip began and was to end in Florida. The court, in receding from the lex loci delicti rule, recognized the need for a more flexible rule which would make the determination of applicable law a more rational process and adopted the “significant relationship test” as set forth in the Restatement (Second) of Conflicts of Laws, sections 145-46 (1971). The court noted that the “state where injury occurred may have little actual significance for the cause of action.”

The court in Johnson v. Auto-Owners Insurance Co., 289 So.2d 748 (Fla. 1st DCA 1974), employed similar reasoning in applying Florida law to allow coverage under the uninsured motorist provision of a policy issued in Alabama to an Alabama resident. The insurance policy listed a Florida address for the insured, the accident occurred in Florida, and the insurer knew that the insured traveled and worked in Florida. Therefore, the court held that Florida had sufficient contacts with the insured in order to apply the law of Florida.

We agree with the public policy considerations discussed in Gillen and Bishop, and, therefore, we reverse the judgment of the trial court below. We hold that section 627.727 is applicable to increase the uninsured motorist coverage of the Moore Group’s insurance policy to an amount equivalent to the bodily injury coverage limit. This case is remanded for treatment consistent with this opinion.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

      . Repealed April 19, 1979.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MANUFACTURERS HANOVER TRUST COMPANY, Appellant, v. WEST ORANGE INDUSTRIAL PARK, INC., etc., et al., Appellees.
    No. 79-163/T4-376.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    Rehearing Denied Jan. 28, 1981.
    Gene H. Godbold and A. Guy Neff of Maguire, Voorhis & Wells, P. A., Winter Park, for appellant.
    James W. Markel of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellees.
   PER CURIAM.

In our opinion in this case reported at 388 So.2d 567 (Fla. 5th DCA 1980), it was ordered that jurisdiction of this cause be relinquished to enable the trial judge to complete his judgment by including the findings of fact to support the judgment. We have received those findings of fact and deem them insufficient as a matter of law to support the denial of a deficiency judgment. Because of the passage of time since the first hearing in this case we deem it advisable to order a complete rehearing, de novo, to determine if a deficiency exists and if so in what amount and direct that after the rehearing the trial court should issue its findings of fact and judgment thereon. It is suggested this matter be given priority treatment because of the delays caused not by any actions of the parties.

REVERSED AND REMANDED.

DAUKSCH, C. J., SHARP, J., and SHARP, G. KENDALL, Associate Judge, - concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Ronald Wayne SMITH, Petitioner, v. The Honorable Leroy H. MOE, as Judge of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 80-1910.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 1981.

      Alan H. Schreiber, Public Defender, and Gary Kollin, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the trial court's order of October 6, 1980, is hereby quashed.

ANSTEAD and HURLEY, JJ., concur.

BERANEK, J., dissents, with opinion.

BERANEK, Judge,

dissenting.

I respectfully dissent. In my view the defendant has failed to demonstrate prejudice and I would deny certiorari.


author: SCHWARTZ, Judge.

text:
    Beuleah S. PASEKOFF and Richard L. Grinberg, as Personal Representatives of the Estate of Harold Pasekoff a/k/a Harold J. Pasekoff, deceased, Appellants, v. Madeline KAUFMAN, Sylvia Engels, Deverah Hurwick and Judith Pasekoff Kay, Appellees.
    No. 79-2372.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 13, 1981.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Wolff & Friedman and Julian R. Benjamin, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The proper resolution of this intrafamily dispute over an interest in realty is complicated by the relative intricacy of the operative facts and the inadequacy of the pleadings to reflect the parties’ respective positions. We have concluded, however, that the judgment under review, which in effect quieted title to the property in the heirs of Frances Pasekoff over the conflicting claims of the estate of her son, Harold Pasekoff, cannot stand.

Facts and Proceedings Below

The case involves the title to an undivided half-interest in now-improved property in Dade County. (At all pertinent times, the other half has been owned, without dispute, by H. I. Kopelman and his wife.) The 50% interest now in question was conveyed by Sylvia [Pasekoff] Engels, and Burton Engels, her husband, by a warranty deed dated December 3,1956, to a grantee described as the “Sam Pasekoff Company ... of the County of Allegheney [sic] in the State of Pennsylvania.”

The grantee, “Sam Pasekoff Company,” was a partnership engaged in the produce business in Pittsburgh, Pennsylvania. As was indisputably established below, in 1956 and for several years before, the business was operated and owed as co-partners by Sam Pasekoff and his son, Harold. That situation continued until April 1, 1958, when Sam conveyed his entire interest in the partnership and its assets to Harold. In accordance with this agreement, Harold thereafter owned and ran the “Sam Pase-koff Company” until shortly before his death in 1973. Sam Pasekoff himself died in 1965, leaving his entire estate to his wife Frances, who passed away in 1971. Frances’ will devised all her property in equal shares to her five children, Harold and the four daughters, including Sylvia Engels, who are the present appellees.

As for the interest in the Dade County realty, the record shows that it was actively managed by the other half owner, Kopel-man, who, unlike the Pasekoffs, resided in the area. From 1956 on, half of the net rental proceeds were forwarded to the Sam Pasekoff Company, which, in turn, bore half of the taxes and other expenses. Subsequent to April 1, 1958, both the income and costs were duly reported as such, in tax returns and otherwise, by Harold Pasekoff while he was the sole owner of the “Sam Pasekoff Company” and, after his death, by his estate. On the other hand, the Florida property was not included as an asset of the estate of either Sam or Frances Pasekoff, and none of the daughters asserted any claim to the property until their response to the proceedings below.

In 1976, the representatives of Harold’s estate brought the present action— which they apparently believed would be an unopposed formality — against his four sisters to quiet title to the property in question. The complaint alleged that Harold had acquired ownership of the entire half-interest by adverse possession under color of title. See, § 95.16, Fla.Stat. (1975). This allegation, in common with all of the plaintiffs’ later-presented theories, did not attempt to distinguish between Harold’s ownership of one-half of the 50% interest in question under the 1956 deed as a then-one-half owner of the grantee-partnership, and the interest in the partnership he allegedly received from his father in 1958. Indeed, Harold’s estate has never straightforwardly asserted his ownership of half of the 50% interest in question simply as the legal or equitable titleholder of that half. Instead, the complaint seemed to contend that the plaintiffs’ “color of title” to the whole 50% interest was based on the 1958 transaction. The defendants happily joined issue on this all-or-nothing basis. They denied the viability of the 1958 “transfer” and the adverse possession claim and counter-claimed for ejectment of Harold’s estate on the basis of their own title to the half-interest stemming from the 1956 deed, deraigned from Sam through their mother, Frances. In the skirmishes over the pleadings which followed, the plaintiffs amended their complaint to include a count based on adverse possession without color of title, Section 95.18, Florida Statutes (1975), and the court dismissed the original “with color of title” claim for failure to state a cause of action. After these events, and extensive discovery, the plaintiff-estate moved in March, 1978 for leave to file a third amended complaint to include a count for the imposition of a trust in the estate’s favor upon the entire one-half interest in question. The trial judge denied the motion.

When the case went to non-jury trial 18 months later, the only remaining count in the complaint was the one based on adverse possession not under color of title. At the conclusion of the plaintiffs’ case, which developed the facts already stated, the court granted an involuntary dismissal of this claim. Immediately thereafter, and without additional testimony, the defendants moved for and were granted a summary judgment on their counterclaim. The court thereupon entered a single final judgment dismissing the plaintiffs’ action with prejudice and declaring eách of the four daughters (and Harold’s estate) to be the owners of 20% of the disputed interest — that is, 10% of the parcel as a whole. In addition, the defendants were awarded a money judgment plus interest in an agreed amount which represented the daughters’ share of the profits of the property collected by Harold and the estate after their mother’s death. The estate appeals. For two reasons, we reverse.

Error to Enter Judgment for Defendants Because of Failure to Negate Harold’s Interest As Co-Partner of Sam Pase-koff Company

As we have seen, the appellees’ claim to the property — like the plaintiffs’— is derived from the common source of the 1956 deed to the Sam Pasekoff Company of Allegheny County, Pennsylvania. In this situation, it was incumbent upon the counter-claimants to establish that they “acquired title from the common source.” [e. o.] Nissim Hadjes, Inc. v. DiCostanzo, 197 So.2d 602, 607 (Fla. 3d DCA 1967). See also, Bass v. Ramos, 58 Fla. 161, 50 So. 945 (1909); Florida Finance Co. v. Sheffield, 56 Fla. 285, 48 So. 42 (1909). As to one-half of the interest in controversy, it is clear not only that the appellees did not make this' required showing but that, so far as the record presently reflects, title was in fact held by the plaintiff-estate. In 1956, the law in Florida was that, while a partnership could not hold property in the partnership name, “[a] deed made to a firm by the firm name, instead of the individual members of the firm, is not for that reason void. It is a latent ambiguity, that may be explained and supplied by parol.” LaFayette Land Co. v. Caswell, 59 Fla. 544, 52 So. 140, 141 (1910). Accord, Cawthon v. Stearns Culver Lumber Co., 60 Fla. 313, 53 So. 738 (1910). In this case, the “parol” testimony clearly established that Sam and Harold each owned 50% of the Sam Pasekoff Company in 1956 and that Harold therefore became the vested owner, at least equitably, of 50% of the partnership’s share of the property when the deed was issued. Dineen v. Lanning, 92 Neb. 545, 138 N.W. 759 (1912); Silverstein v. Wolf, 151 A. 482 (N.J.1930); Murray, Ferris & Co. v. Blackledge, 71 N.C. 492 (1874); see, Loubat v. Nourse, 5 Fla. 350 (1853).

The appellees make two separate contentions, in contradiction to this analysis, to support their claim that Sam Pase-koff was the sole holder of the title under the 1956 deed. Neither has merit. The first is that, as their brief argues, “[t]here was no evidence whatsoever before the court that the Pennsylvania partnership had anything to do with the Florida property.” In the light of the overwhelming and undisputed showing to the contrary — not least of which is the deed’s specific designation of the grantee as being located in Allegheny County, Pennsylvania — we regard this argument as both specious and disingenuous. The appellees also suggest the Sam Pasekoff’s undivided ownership is shown by the fact that Kopelman and Sam, joined by their wives, executed a mortgage on the entire parcel, with Harold as the mortgagee, dated three months before and recorded simultaneously with the deed. The mere execution of a mortgage, however, is no evidence whatever of ownership of the mortgaged property. See, Wagner v. Roberts, 320 So.2d 408 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 20 (Fla.1976). In no sense, therefore, can the mortgage be regarded as a muniment of title from which the defendants could derive ownership of the entire 50% interest, so as to defeat the rights of Harold as the co-owner of the grantee of record, “Sam Pasekoff Company.”

On this basis, the appellants did not establish their entitlement, as a matter of law, to the entire disputed interest in the property. The summary judgment which so held was therefore erroneously entered for this reason alone.

Error to Deny Amendment to Raise Constructive Trust Claim

The proposed third amended complaint sought to impress a trust on the property based upon the allegations that (a) in the 1958 dissolution and “gift,” Sam intended to and avowedly had conveyed his entire interest in the Florida property to Harold and (b) although the transfer was ineffective to pass legal title, from that time forward, Harold treated the interest as his own, collecting the profits and paying the expenses totally without complaint from Sam, Frances, or the appellees, until the suit was filed long after Sam had , died. This proposed additional count stated a cause of action under the equitable estoppel theory applied in Chamberlain v. Chamberlain, 115 Fla. 21, 155 So. 136 (1934). Accord, Woodward v. Kitchen, 112 So.2d 272 (Fla. 1st DCA 1959); see also, Walker v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976); Binz v. Helvetia Florida Enterprises, 104 So.2d 124 (Fla. 3d DCA 1958).

We conclude, moreover, that the trial court abused its discretion in denying the motion to amend the complaint so as to reflect this theory. The very terms of Fla. R.Civ.P. 1.190(a) provide that “leave [to amend] shall be given freely.” The proffered amendment was based on the same transactions and claim for relief involved in the plaintiffs’ earlier pleadings and merely enunciated an additional legal theory to support their action. See, Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 188 (Fla.1978); David Miller Dist. Co. v. Florida National Bank, 342 So.2d 856 (Fla. 1st DCA 1977). Since all of the factual allegations had been revealed in earlier discovery, the appellees could not have been, and, indeed make no claim that they were surprised by the contents of the amendment. Furthermore, when the motion was made, the case had not yet been set for trial, which did not take place until a year and a half later. Finally, although there had been several previous amendments, there was no indication that the “privilege to amend” had been or was being abused. See, Garvie v. Cloverleaf, Inc., 136 Fla. 899, 187 So. 360 (1939); Richards v. West, 110 So.2d 698 (Fla. 1st DCA 1959). Under all these circumstances, there was no acceptable reason for the court’s refusal to permit the amendment in question. Plyser v. Hados, 388 So.2d 1284 (Fla. 3d DCA 1980), and cases cited; Enstrom v. Dixon, 354 So.2d 1251 (Fla. 4th DCA 1978).

Conclusion

For the foregoing reasons, the judgment under review is reversed and the cause is remanded for further proceedings not inconsistent herewith. After remand, the pleadings should be recast, see, Georgia-Pacific Corp. v. Squires Development Corp., 387 So.2d 986 (Fla. 4th DCA 1980), so as to permit the parties to join issue as to the plaintiffs’ rights to the property in question as they specifically relate to Harold’s status as a partner in the Sam Pasekoff Company, and to reflect the claim embodied in the proposed third amended complaint.

Reversed and remanded.

      .While the deed indicated that it conveyed the entire interest in the property, a subsequently recorded affidavit of the grantors corrected the deed to reflect that only a half-interest was involved.

      . The city of Pittsburgh is located in Allegheny County, Pennsylvania.

      . Among many other things which demonstrate this fact, the record shows that, on December 21, 1953, Sam and Harold signed a “partnership agreement,” which provided:

        THAT the partnership heretofore existing between the parties hereto in the operation of a produce business, with offices at the Catan-zaro Building, 21st and Smallman Streets, Pittsburgh, Pennsylvania, under the name of SAM PASEKOFF CO., is hereby continued for a term expiring December 31, 1958.
      EACH of the partners has a one-half interest in said partnership business and in all the assets thereof; each as heretofore shall be entitled to one-half of the net profits of said partnership business and each shall bear one-half of the losses thereof.

      UPON the death of Samuel Pasekoff during the continuance of the partnership, his net interest therein shall become vested in the said Harold J. Pasekoff unconditionally, without liability on the part of the said Harold J. Pasekoff to pay any consideration or compensation therefor. Upon the death of Harold J. Pasekoff, the partnership shall be dissolved and shall be liquidated by Samuel Pa-sekoff, the surviving partner, and the net proceeds shall be divided equally between Samuel Pasekoff and the estate of Harold J. Pásekoff.

      .A document executed by Sam and Harold Pasekoff, entitled “Dissolution of Partnership and Declaration of Gift,” stated:
      WHEREAS the said SAMUEL PASEKOFF and HAROLD J. PASEKOFF are at present and have, in the past, been engaged in the wholesale produce business, as partners trading under the firm name of SAM PASEKOFF COMPANY and doing business at the Catan-zaro Building, 21st & Smallman Streets, Pittsburgh 1, Pennsylvania; and
      WHEREAS the said SAMUEL PASEKOFF is no longer dependent on said business for his livelihood; and
      WHEREAS HAROLD J. PASEKOFF has faithfully continued in the operation of said business in fulfillment of an oral promise made in prior years wherein SAMUEL PASE-KOFF had agreed that he, the said SAMUEL PASEKOFF would make a gift of his interest in said business to HAROLD J. PASEKOFF provided the said HAROLD J. PASEKOFF continue in the operation and success of said business;
      NOW THEREFORE, it is mutually agreed between the parties that the partnership heretofore existing between SAMUEL PASE-KOFF and HAROLD J. PASEKOFF pursuant to an Agreement of Partnership entered into on the 21st day of December 1953 under the above name and style is hereby dissolved and ended and the said SAMUEL PASEKOFF hereby declares that he gives, grants and transfers all his interest in the aforementioned partnership, including all the stock, fixtures, accounts and all other assets of said firm of SAM PASEKOFF COMPANY, of every nature and kind whatsoever, including the leasehold interest on the premises above, to have and to hold the said goods, chattels and interest unto HAROLD J. PASEKOFF, his heirs, executors, administrators and assigns, to and for his own proper use forever.
      IT IS understood and agreed between the parties that HAROLD J. PASEKOFF is to pay all the indebtedness of the firm of SAM PA-SEKOFF COMPANY and to hold SAMUEL PASEKOFF free from any liability therefore. SAMUEL PASEKOFF hereby agrees that he will permit HAROLD J. PASEKOFF to continue the use of his name in the style of the said firm.

      . At that time, Harold sold the Pennsylvania assets of the company to an employee.

      . The appellees point out, however, that Harold was the personal representative of both estates.

      . We find no error in this ruling since the 1958 dissolution of partnership agreement, see note 4 supra, could not be effective as conferring “color of title” because it was not recorded, see § 95.16(1); 2 Fla.Jur.2d Adverse Possession § 8 (1977), and contained no description of the property at all. See, Moore v. Musa, 198 So.2d 843 (Fla. 3d DCA 1967); 2 Fla.Jur.2d, supra, § 11.

      . If only because there was no showing that Harold or his estate had returned the property for taxes as required by Sec. 95.18(1), Fla.Stat. (1975); Meyer v. Law, 287 So.2d 37 (Fla.1973), this ruling was concededly correct and is not challenged on appeal.

      . This rule was changed by the Uniform Partnership Act, enacted in Florida in 1973. See, § 620.595(3), Fla.Stat. (1979).

      . Counsel’s contention at oral argument was that the grantee “Sam Pasekoff Company,” was or may have been an entity which was in the produce business in Florida and which was owned either by Sam individually or by Sam and his wife, as partners. There is not a shred of evidence to support this assertion.

      . In any case, Sam’s execution of the mortgage is not inconsistent with his 1956 ownership, as the other co-partner, of 25% of the property. The mortgage may properly be deemed therefore to have secured only that interest.

      . We note that the grantors of the deed were Sam’s daughter and her husband, a lawyer who had worked for the Sam Pasekoff Company in Pittsburgh and who drew the instrument. Surely if the parties intended that Sam, individually, or Sam and his wife should be the owners, rather than the “Company,” they knew how to and would have accomplished that purpose in their description of the grantee.

      . Since the issue has been raised directly by neither side, we do not treat the possible effect, in and of itself, of the 1958 transfer of all of Sam’s interest in the partnership assets to Harold, as it concerns their respective equitable rights and those of their heirs to the disputed property. See, Shanks v. Klein, 104 U.S. 18, 26 L.Ed. 635 (1881).

      . See, Section 689.01, Florida Statutes (1977).


text:
    The DELTONA CORPORATION, Appellant, v. Angelo JANNOTTI and Joan Jannotti, Appellees.
    No. OO-465.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.

      Joseph Mancilla, Jr., Miami, for appellant.
    Jerry W. Gerde, of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellees.
   PER CURIAM.

Deltona appeals a judgment of guilty of unfair and deceptive trade practices, contrary to section 501.201 et seq., Florida Statutes (Little FTC Act), regarding the sale of carpeting and sodding purchased by the Jannottis in conjunction with their purchase of a house from Appellant. The Jan-nottis were awarded $3200 damages for the replacement of the defective carpeting and sodding and $2500 for attorney’s fees.

Deltona raised four points on appeal, and the Jannottis cross-appealed arguing that the award of attorney’s fees was insufficient. We affirm the appeal and cross-appeal.

Deltona, relying on State ex rel. Herring v. Murdock, 345 So.2d 759 (Fla. 4th DCA 1977), argued that the award of attorney’s fees pursuant to section 501.210, Florida Statutes was improper because the sale of a house and lot are not “consumer transactions” within the meaning of the Act. Section 501,203(1). Murdock, supra, held that the sale of raw land (real estate lots) did not come within the definition of consumer transaction found in section 501.203(1).

It is unnecessary for us to reach the question of whether the sale of a house would be a consumer transaction within the meaning of the Act. The trial judge granted Plaintiffs/Appellees’ motion for summary judgment, holding that the sale of the carpeting and sodding to the Jannottis by Deltona were consumer transactions under the Act. Under the facts of this case, we find no error in granting the summary judgment.

The Jannottis, New York residents, became interested in buying a home in Florida in 1972. They purchased a lot from Deltona in September 1972 by way of an ad in the New York Daily News. In February 1973, the Jannottis flew to Florida to view their lot in Deltona’s Sunny Hills subdivision near Panama City. They flew down with approximately one hundred other individuals who were provided transportation from New York to Florida by Deltona for a nom- . inal fee. Deltona provided this trip as part of its sales efforts for Sunny Hills. During this visit, the Jannottis purchased another lot in the subdivision.

The Jannottis again visited Florida in July 1973 and looked at the model homes in Sunny Hills. They purchased a home (Rosewood Model) and were assured that the carpeting and sodding of their home would be of the same quality as that of the model they viewed. They returned to New York until their new home was completed.

In September 1973, the Jannottis were contacted by Deltona’s Queens Office in New York and told that the carpeting they had ordered was no longer available. They selected another carpeting from the available selections and were again assured that the carpet’s quality would match that of the model.

Upon moving to Sunny Hills in July 1974, the Jannottis found that their carpeting was an inferior grade and had been improperly installed. Also their lawn had been improperly prepared and sodded. The Jan-nottis instituted proceedings below against Deltona for unfair and deceptive practices regarding the sale of the sodding and carpeting. At trial one of Deltona’s former employees, who worked for Deltona when the Jannottis moved into their new home, testified as to the inferior grade and installation of the carpeting. A landscape expert testified as to the improper preparation of the ground and subsequent sodding.

Under these facts, we find that the purchase of the carpeting and sodding selected prior to the construction of the home, are consumer transactions within the meaning of section 501.203(1). Therefore, an award of attorney’s fees was proper since the jury found Deltona guilty of unfair and deceptive trade practices. Section 501.-210(1), Florida Statutes.

Deltona also argued that the diminution of value rule should have been used to calculate damages and that the trial judge erred in using the replacement cost or restoration rule. We disagree. The trial judge was correct in ruling that the replacement cost, or restoration rule, should have applied in this case. Keyes v. Shea, 372 So.2d 493 (Fla. 4th DCA 1979); Gory Associated Industries, Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978).

In addition, Appellant argued that the jury instructions, which tracked the language of the statute on unfair and deceptive trade practices, was error because no standards were given as to what was an unfair trade practice. We find no error. The jury was entitled to find, based on the evidence adduced, that plaintiffs were the victims of a “bait and switch” operation. As an inducement to purchase, plaintiffs were shown a “Rosewood” style model home complete with carpet and sod work represented to be the same as what they would have if they bought that model. After they purchased their “Rosewood” home, the plaintiffs discovered the carpet and sod work were of substantially inferior quality to that shown at the model home. On these facts, the jury was capable of determining whether Deltona committed unfair trade practices, within the meaning of the statute, based on the instruction given.

Lastly, Deltona urges that the trial court erred in denying its motion for new trial because the verdict was against the manifest weight of the evidence. We find that there was competent substantial evidence to support the jury’s verdict.

The Jannottis have shown no abuse of discretion by the trial judge in the award of attorney’s fees; therefore, the award is affirmed.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


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

text:
    CITY OF MIAMI, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Appellees.
    No. TT-462.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    Peter J, Hurtgen and John B. Gallagher, Seyfarth, Shaw, Fairweather & Geraldson, Miami, for appellant.
    Donald D. Slesnick, II, Miami, J. W. Cheatham, Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Judge.

In denying “confidential” classification to the Sanitation Inspector II position held by employee Benjamin, PERC’s order characterizes as too “generalized” Benjamin’s affidavit statements of her “confidential” duties, and appears to fault the application’s lack of specific examples of paperwork handled by Benjamin which was so confidential as to be exempt from public inspection under Chapter 119, Florida Statutes (1979). Nothing in PERC’s order explicates the significance, if any, of Chapter 119, so the order falls below APA standards for policymaking orders. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). PERC’s order also seems more “generalized” in its rejection of confidential status than was Benjamin’s affidavit seeking that status. For lack of appropriate findings of fact, conclusions of law, and explanation of the statutory policy which is implemented, PERC’s order is REVERSED and the case is REMANDED for further proceedings.

THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Alton S. BEASLEY, Appellee.
    No. 80-93.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 11, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Russell J. Ferraro, Jr., McManus, Stewart & Ferraro, P. A., Stuart, for appellee.
   BERANEK, Judge.

The State appeals from an order granting defendant’s motion for discharge under the speedy trial rule. We reverse.

Defendant, Alton Beasley, was under investigation for several thefts including burglary of a dwelling in Martin County and theft of a motorcycle in Okeechobee County. Beasley was arrested for dealing in stolen property, the motorcycle, in St. Lucie County on November 3,1978, and on March 21, 1979, an information was filed. The State eventually nolle prossed this charge.

Subsequently, on July 20, 1979, the State filed an information charging Beasley with burglary of a residence in Martin County. This crime as alleged occurred at a different time and place from the previous charge. Defendant moved for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191, arguing the State had sufficient probable cause to arrest for burglary of the dwelling at the time he was arrested for dealing in stolen property. The motion alleged:

1. More than one hundred eighty (180) days have elapsed from the time the State of Florida possessed sufficient evidence to arrest defendant or seek a grand jury indictment for the alleged offense giving rise to this cause.

Defendant simultaneously filed a motion to dismiss the information because of prosecu-torial misconduct.

The trial court granted the motion for discharge on speedy trial grounds for the stated reason that the Supreme Court had expanded the speedy trial rule in Thomas v. State, 374 So.2d 508 (Fla.1979), cert. den. 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980), so as to ban prosecution under these circumstances. The court concluded that the State had obtained sufficient probable cause to arrest defendant for the house burglary when it arrested him on November 3, 1978, and that more than 180 days had elapsed since then. In a separate order the trial court denied defendant’s motion to dismiss finding there was no evidence of prosecutorial misconduct. We conclude the discharge of defendant was error.

Florida Rule of Criminal Procedure 3.191(h)(2) provides:

Nolle Prosequi; Effect. The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

The Martin County information charging house burglary was based upon a separate criminal episode from that set forth in the nolle prossed St. Lucie County information which charged dealing in stolen property. The alleged crimes involved different times, locations, property and victims and were not based on the “same conduct or criminal episode” under the speedy trial rule. The trial court thus could not have dismissed the charges against defendant based upon the above stated provision of the speedy trial rule. We further conclude that Thomas v. State, supra, has not expanded the speedy trial rule as found by the trial court.

In Thomas, defendant was taken into custody for receiving stolen property. When this same property had been taken from the home of a married couple, the husband was murdered and the wife brutally raped. The wife reported welts on her assailant’s legs. At the time of his initial arrest, defendant’s legs were examined for welts. He was charged with murder and rape some time later. Defendant in Thomas moved for discharge alleging he was actually taken into custody on the murder and rape charges when initially arrested for receiving stolen property, thus the time for speedy trial began running when he was first arrested. The court rejected defendant’s argument and commented:

Conceding that the spirit of the Speedy Trial Rule would not condone the withholding of some charges and an arrest on others so as to effectively extend the time periods of the rule where there is ample evidence to support probable cause as to all charges, nevertheless the record in this cause does not establish such an abuse. Thomas, supra at 513.

The trial court apparently interpreted the foregoing language as requiring the State to charge defendant with all crimes of which it has probable cause when a defendant is arrested and, on this theory, dismissed defendant Beasley.

The lower court, however, specifically found no prosecutorial misconduct in its order denying appellant’s motion to dismiss. This finding alone would seem to negate any alleged violation of the speedy trial rule because, as in Thomas, “the record in this cause does not establish such an abuse.” Furthermore, we reject the notion that Thomas can be interpreted to extend the speedy trial rule. We see the above quoted language in Thomas as referring only to crimes arising out of the same conduct or criminal episode and then only when the State has deliberately withheld charges arising from that episode. On the other hand, where the crimes charged are totally distinct and not strung together by a single conspiracy charge as in State v. Boren, 273 So.2d 415 (Fla. 3d DCA 1973), we do not see how arrest for one crime, can require the State to bring charges on a totally separate crime of which the State may have probable cause. As stated in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977):

It requires no extended argument to establish that prosecutors do not deviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Id. at 790, 97 S.Ct. at 2048 (citations omitted).

To conclude in this case that the State had to bring all charges against defendant of which it had probable cause would destroy the traditional notion of prosecutorial discretion.

We therefore reverse the order of the trial court discharging the defendant and remand for further proceedings.

REVERSED AND REMANDED.

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


text:
    Norman BIEDERMAN and David Tupper, Appellants, v. STATE of Florida, Appellee.
    No. 80-819.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 11, 1981.
    Harlan Street and William S. Isenberg of Law Offices of Harlan Street, P. A., North Miami, for appellants.

      Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Norman Biederman and David Tupper appeal from their respective judgments and sentences, contending the trial court erroneously denied their motions to dismiss an indictment. We agree and reverse.

Biederman, indicted for two violations of Section 812.021(l)(b), Florida Statutes (1977), the grand larceny statute, moved to dismiss counts I and II on grounds that the indictment was so vague and indistinct as to mislead and embarrass him in the preparation of his defense. The court denied the motion.

Under Florida Rule of Criminal Procedure 3.140(o), an indictment should not be dismissed

unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Explaining count I at the hearing on the motion to dismiss, the Assistant State Attorney stated: “What the State is alleging is that Evrocin Incorporated sold merchandise it had bought on credit, to Mr. Melnick; that Mr. Melnick gave cash to an agent of the Defendant, that cash never was placed into the corporate account so that the creditors could be paid. The monies, therefore, which were actually owed to Evrocin, Inc., were misappropriated ... the money never made its way into the company, because the agent and the Defendant, ..., misappropriated.” None of this information can be gleaned from the indictment which reflects neither Melnick’s status nor Biederman’s relationship to Evrocin, Inc. We find the count vague and confusing. Consequently, we hold the indictment failed to adequately apprise Biederman of the offense charged in count I. Count II suffers from the same defects and both counts should have been dismissed.

Biederman and Tupper both moved to dismiss counts III through XX, alleging that the indictment failed to charge a crime because the false representations in question pertained to promises to do something in the future. The trial court denied the motions “because it was the common scheme, ... the intent existed at the time of the purchase, to defraud and to refuse to pay.” We reverse. Under present Florida law, a promise to do something in the future, even though defendant never intended to perform the promise when he made it, will not support a conviction for larceny by false pretenses. A false representation of a past or existing fact is essential to charge this particular crime. Scarlett v. State, 25 Fla. 717, 6 So. 767 (1889); Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980); Dhonau v. State, 276 So.2d 503 (Fla. 4th DCA 1973); Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968). The State conceded that the alleged false representations herein referred to promises to perform future acts. The trial court, therefore, erred in denying Biederman’s and Tupper’s motions to dismiss counts III through XX.

Although not called upon to do so, we observe without deciding that there are various other sections of the statutes which these defendants might have been charged with violating. See Waterman v. State, 317 So.2d 469 (Fla. 4th DCA 1975).

Accordingly, the judgments and sentences appealed from are reversed and the cause remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

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

      . COUNT I
      NORMAN BIEDERMAN Between the 1st day of April, A.D. 1977, and the 31st day of July, inclusively, in the year of our Lord One Thousand Nine Hundred and Seventy-seven, in the County of Broward, State of Florida, then and there, while having in his constructive possession, custody or control, the property of Evro-cin Company, Inc., a Florida corporation, to-wit: money, obtained from William Melnick, being then and there of the value of one hundred ($100.00) dollars or more, good and lawful money of the United States of America, as an agent, bailee, employee, officer of a corporation, or as a person authorized by agreement to hold or take such possession, custody or control, unlawfully appropriated the same to his own use, or to the use of any person other than the true owner entitled to the benefit thereof, with the intent to permanently deprive or defraud the same true owner, to-wit: Evrocin Company, Inc., a Florida corporation, of its property or the use and benefit thereof, contrary to F.S. 812.021(l)(b), F.S. 812.021(2)(a), and F.S. 777.011; and
      COUNT II
      that NORMAN BIEDERMAN, between the 1st day of July, A.D. 1977, and the 30th day of September, inclusively, in the year of our Lord One Thousand Nine Hundred and Seventy-seven, in the County of Broward, State of Florida, then and there while having in his constructive possession, custody or control, the property of Evrocin Company, Inc., a Florida corporation, to-wit: money, obtained from Harold Garfinkle, doing business as G.W. & L. Discount Center, being then and there of the value of one hundred ($100.00) dollars or more, good and lawful money of the United States of America, as an agent, bailee, employee, officer of a corporation, or as a person authorized by agreement to hold or take such possession, custody or control, unlawfully appropriated the same to his own use or to the use of any person other than the true owner entitled to the benefit thereof, with the intent to permanently deprive or defraud the said true owner, to-wit: Evrocin Company, Inc., a Florida corporation, of its property or of the use and benefit thereof, contrary to F.S. 812.021(l)(b), F.S. 812.021(2)(a), and F.S. 777.011;

      - COUNT III
      that NORMAN BIEDERMAN and DAVID TUP-PER, between the 5th day of July, A.D. 1977, and the 12th day of August, inclusively, in the year of our Lord One Thousand Nine Hundred and Seventy-seven, in the County of Broward, State of Florida, then and there unlawfully obtained from Barnes-Hind Pharmaceuticals, Inc., a Delaware corporation, the true owner, or from any other person, possession of personal property, to-wit: cases of contact lenses wetting solution, said personal property being then and there of the value of one hundred ($100.00) dollars or more, good and lawful money of the United States of America, in that said NORMAN BIEDERMAN obtained, and DAVID TUPPER aided or abetted the said NORMAN BIEDERMAN in obtaining such property, by color or aid of a fraudulent or false representation or pretense, to-wit: said NORMAN BIED-ERMAN falsely represented his intention to pay for such property, with the intent to permanently deprive or defraud the said Barnes-Hind Pharmaceuticals, Inc., a Delaware corporation, of its property, or to appropriate the same to the use of the taker or any other person, as part of a common scheme or plan, contrary to F.S. 812.021 (1 )(a), F.S. 812.-021(2)(a), and F.S. 777.011.
      Counts IV through XX contain the same charge except that each count alleges that a different company was defrauded.


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

text:
    Fred FARAH, Edward Farhat, Robert R. Taylor, Sr. and William H. Tuck, Sr., Appellants, v. HERITAGE PAPER COMPANY, INC. et al., Appellees.
    No. SS-230.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.

      George M. McClure, of Martz & McClure, St. Augustine, for appellants.
    William C. Andrews, of Andrews & Delaney, Gainesville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

A claim and counterclaim, the defeat of which produced this appeal and cross-appeal, arose among former business associates in the aftermath of dissolving their relationship. After a bench trial the court rejected both claims on the merits. Substantial competent evidence supports the circuit court’s judgment. With particular reference to the counterclaim of appellee Heritage for damages allegedly sustained when appellants resigned their employment and entered a competing business, the trial court’s judgment for counterclaim defendants is sustainable either on the ground that there was no satisfactory showing of a cause of action — appellants ceased all activities as directors of appellee Heritage and briefly remained directors in name only after opening a competing business — or on the ground that Heritage’s damages were for the most part avoidable. The presumption of correctness which attends the trial court’s judgment on both claim and counterclaim has not been overcome.

AFFIRMED.

SHAW, J., concurs.

BOOTH, J., concurs in part and dissents in part, by separate opinion.

BOOTH, Judge,

concurring in part, dissenting in part:

I would reverse that portion of the judgment below ruling against Appellee Heritage on the counterclaim for appellants’ breach of fiduciary duties. The evidence showed that, while still directors of appellee corporation, appellants engaged in competing businesses, closed appellee's Ocala branch and caused all appellee’s employees at the branch to resign. The result was the permanent closing of the Ocala branch and proven damages to Heritage of $20,285.35. The trial court erroneously concluded that, because Appellee Tuck, manager of the Ocala branch who precipitated the closing of the branch, offered to trade his stock in Appellee Heritage for the $130,000 worth of highly salable inventory in the Heritage branch warehouse and to assume the lease, appellee was bound to accept that offer and could not recover damages for cost of the storage and moving of the branch inventory thereafter required. This is a misapplication of the avoidable consequences rule. The result is to shield and benefit the defalcating directors at the expense of the corporate cestui qui trust.

I would remand for entry of judgment in favor of Appellee Heritage of $20,285.85, the amount shown without dispute to have been caused by appellants’ breach of fiduciary duties.

      . Snead v. United States Trucking, 380 So.2d 1075 (Fla. 5th DCA 1980), cert. denied, 389 So.2d 1116, 1980 (Fla.); 19 C.J.S. Corporations, § 761, at 103-107.


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

text:
    Mary Ellen KILPATRICK, formerly known as Mary Ellen McLouth, Appellant, v. Malcolm E. McLOUTH, Appellee.
    No. 79-124.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.

      Henry J. Martocci, Cocoa, for appellant.
    Walter T. Rose, Jr. of Rose & Weller, Cocoa Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a summary final judgment denying her petition for modification of an alimony award.

The final judgment of dissolution of marriage incorporated a separation agreement executed by the parties. The agreement, which provided for an alimony award, specifically provided that the agreement was to be non-modifiable and that the wife waived or released any right to alimony modification. Wife contends that such a provision should be void as against public policy. We disagree and affirm.

A spouse can waive all right to alimony. Kirkconnell v. Kirkconnell, 222 So.2d 441 (Fla.2d DCA 1969). Therefore, it logically follows that a spouse can waive the right to modification. Muss v. Muss, 390 So.2d 415 (Fla.3d DCA 1980); Turner v. Turner, 383 So.2d 700 (Fla.4th DCA 1980). Generally, one can waive any contractual, statutory or constitutional right. Bellaire Securities Corporation v. Brown, 124 Fla. 47, 168 So. 625 (1936).

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.


text:
    Charles Lee BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-433.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.

      James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the Circuit Court for Putnam County, Florida. The public defender filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On June 9, 1980, the Fifth District Court of Appeal gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. This court has reviewed the Anders brief and the record herein, and no reversible error appears. The motion of the public defender to withdraw is granted and.the judgment arid sentence are hereby

AFFIRMED.

DAUKSCH, C. J., and COBB and UP-CHURCH, JJ., concur.

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


author: COBB, Judge.

text:
    Dr. Edward SWAN, Appellant/Cross-Appellee, v. Avery WISDOM, Appellee/Cross-Appellant.
    No. 79-1336/T4-604.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.
    Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellant/cross-appellee.
    Maurice Wagner of Wagner & Bertone, Holly Hill, for appellee/cross-appellant.
   COBB, Judge.

On a prior appeal, this court granted Swan a new trial. Since he was the prevailing party in that appeal, Swan moved for appellate costs in the trial court. The trial court entered an order finding that Swan was entitled to certain appellate costs, but refused to make the order a cost judgment subject to execution prior to the outcome of the new trial. Swan seeks review of that order.

The trial court erred in not making the order a cost judgment subject to execution. Fla.R.App.P. 9.400(a); Yost v. Congress International Corp., 383 So.2d 732 (Fla. 3d DCA 1980). That portion of the order inconsistent with this opinion is reversed, and the trial court is directed to add language of finality to the order.

REVERSED in part, with directions.

UPCHURCH, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Michael McQUIGGAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-124.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmett, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the Circuit Court of Lake County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On May 23, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted and the judgment of conviction is hereby

AFFIRMED.

DAUKSCH, C. J., and COBB and UP-CHURCH, JJ., concur.

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


author: COWART, Judge.

text:
    Robert EAGAN, Appellant, v. Peggy EAGAN, Appellee.
    No. 80-142.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.

      James A. Edwards, of Rumberger, Kirk, Caldwell & Cabaniss, Orlando, for appellant.
    John M. Cain, Orlando, for appellee.
   COWART, Judge.

The trial court in dissolving a marriage of 27 years awarded the wife permanent periodic alimony and the husband’s interest in the marital home as lump sum alimony and ordered the husband to maintain insurance on his life for the benefit of the wife.

Based on the facts and circumstances in this case, the trial judge was well within his discretion and within the range of reasonableness in providing for permanent periodic alimony and in awarding the home to the wife as lump sum alimony but we reverse the provision relating to life insurance.

Since alimony is a result of the common law obligation of a husband to provide necessities to his wife and the common law support obligation terminates upon the death of the husband, there is now a well established rule that an obligation to pay alimony ceases upon the death of the obligor in the absence of an express agreement. Since a trial judge cannot ordinarily award alimony to continue after death, provisions of dissolution judgments requiring the maintenance of life insurance for the benefit of a former spouse have been condemned as being tantamount to post-mortem alimony. Weinschel v. Weinschel, 379 So.2d 145 (Fla.3d DCA 1980); Dutton v. Dutton, 379 So.2d 111 (Fla.3d DCA 1979); Watterson v. Watterson, 353 So.2d 1185 (Fla.1st DCA 1977); Blass v. Blass, 316 So.2d 308 (Fla.3d DCA 1975); Perkins v. Perkins, 310 So.2d 438 (Fla.4th DCA 1975); Wilbur v. Wilbur, 299 So.2d 99 (Fla.3d DCA 1974); Faidley v. Faidley, 298 So.2d 425 (Fla.3d DCA 1974); Bildner v. Bildner, 219 So.2d 749 (Fla.3d DCA 1969); Putman v. Putman, 154 So.2d 717 (Fla.3d DCA 1963).

A father can be required to maintain life insurance on his own life for the benefit of his minor children but only as security for his obligation to support children not in his custody. Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Higgins v. Higgins, 348 So.2d 48 (Fla.1st DCA 1977); Eberly v. Eberly, 344 So.2d 886 (Fla.4th DCA 1977); Lithgow v. Lithgow, 340 So.2d 1283 (Fla.3d DCA 1977); Plant v. Plant, 320 So.2d 455 (Fla.3d DCA 1975); Simon v. Simon, 319 So.2d 46 (Fla.3d DCA 1975). This basis for requiring the maintenance of life insurance is not applicable in this case because the four children of the parties are independent adults and the dissolution decree, after specifically recognizing that the alimony award would terminate upon the death of either party, nevertheless, ordered the husband to maintain policies of insurance on his life with the wife as the beneficiary.

The cash value of life insurance acquired during marriage is one of the assets which a trial judge may equitably distribute upon dissolution. As the trial judge here erroneously required the husband to maintain such life insurance for the benefit of the wife, we do not assume he considered its cash value in the distribution made. The insurance award provided by the trial judge in this case was designed to meet a perceived need of the wife for protection in the event of the husband’s death. We note, without any suggestion, that in Stith v. Stith, 384 So.2d 317 (Fla.2d DCA 1980), the Second District Court of Appeal observed that in an appropriate case an insurance policy on the husband’s life could be awarded to the wife as lump sum alimony and the husband could be required to pay the premium as a form of additional periodic alimony.

In Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980), our Supreme Court observed that in a dissolution cases apportioning assets and providing necessary support are difficult problems and that the various procedural remedies which the trial court can use to solve these problems are interrelated and, from the trial judge’s viewpoint, are generally all part of one overall scheme. It follows, therefore, that when a trial judge is found to be in error as to some aspect of his disposition the cause should be remanded with sufficient authority that he may again exercise broad discretion to modify the related matters within his original plan for division and support as may be necessary in order to do equity and justice between the parties in view of the changes required by the appellate opinion. Accordingly, paragraph 5 of the final judgment relating to the policies of life insurance is stricken and this cause is remanded for the trial judge to reconsider the provisions of the final judgment relating to support and apportionment of assets and to modify them as necessary to effectuate the original plan based on the present record or on additional evidence.

Appellee’s motion for attorney’s fees and costs is granted and, as permitted by Florida Rule Appellate Procedure 9.400(b), the motion is remanded to the trial court to determine the reasonable value of appellee’s necessary appellate legal services and the assessment of the appropriate amount of appellant’s contribution thereto after considering the financial resources of both parties. § 61.16, Fla.Stat. (1979).

As modified in this opinion, the final judgment is affirmed and the cause is remanded for reconsideration consistent with this opinion.

ORFINGER and COBB, JJ., concur.

      . Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964).

      . O’Malley v. Pan American Bank of Orlando, N. A., 384 So.2d 1258 (Fla.1980). A settlement agreement providing for life insurance can be an express agreement and valid and enforceable. Plant v. Plant, 320 So.2d 455 (Fla.3d DCA 1975); Gilbert v. Gilbert, 312 So.2d 511 (Fla.3d DCA 1975).


text:
    FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, Appellant, v. Johnny DOSS, Appellee.
    No. 80-231.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 1981.

      Robert A. Chastain, Gen. Counsel, Tallahassee, for appellant.
    James R. Parks and Charles E. Patterson, Jr., Tallahassee, for appellee.
   COBB, Judge.

The Florida Department of Agriculture appeals from a decision of the Unemployment Appeals Commission, which reversed a decision of the appeals referee affirming the initial determination of the claims examiner, who denied the application of the appellee, Johnny Doss, for unemployment compensation.

In 1966, Doss was employed by the Florida Department of Agriculture as a fruit, nut, and vegetable inspector. The nature of the work is seasonal, and inspectors are expected to move from state to state. At the time of his employment, Doss signed a statement recognizing that transfers both within and without the State of Florida would be necessary, and he accepted such transfers as a condition of employment.

Thereafter, Doss worked out of state each year for some period of time. In 1979, he received a letter from his supervisor requesting him to report for work in Albany, Georgia, on August 15, 1979. Doss refused for the stated reason that he had been involved in a physical altercation with a bellicose individual in Georgia the preceding season, although not in Albany. He also cited the increased cost of living as a basis for his refusal.

When Doss applied for unemployment compensation, the claims examiner found that he had refused to work out of state, contrary to the express condition of his employment and in contravention of his past record of out-of-state work over the years. Therefore, the examiner found that Doss failed to show that the work was unsuitable or that he had good cause for refusing it. This decision was affirmed by the claims referee.

In reversing, the Unemployment Appeals Commission found that good cause to refuse work was established by the showing that the distance of relocation was over 300 miles and the job was for a temporary period of time. This finding cannot be sustained under these circumstances. Doss knew that travel was common to this type of employment and specifically agreed to transfers both in and out of the State of Florida at the time he was employed. One unfortunate altercation at one location in Georgia, in no way attributable to the employer, is no basis to refuse all further work in that state. Therefore, Doss' refusal was unreasonable, and the decision of the appeals referee was supported by substantial, competent evidence, and should not have been overturned by the commission. David Clark & Associates, Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980); Lundy’s Market, Inc. v. Fia. Dept. of Commerce, 373 So.2d 433 (Fla. 3d DCA 1979); General Tel ephone Co. of Florida v. Board of Review, 356 So.2d 1357 (Fla. 2d DCA 1978).

The decision of the Commission is quashed, and the decision of the appeals referee is reinstated.

UPCHURCH and COWART, JJ., concur.


author: DOWNEY, Judge.

text:
    Frank RHYNE and Bertha Rhyne, Appellants, v. CITY OF WILTON MANORS, Appellee.
    No. 79-592.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    James L. Kershaw, Fort Lauderdale, for appellants.
    Jack M. Large, Fort Lauderdale, for ap-pellee.
   DOWNEY, Judge.

In August 1976 Mr. and Mrs. Rhyne filed in the circuit court a petition for writ of certiorari and for injunctive relief, the thrust of which was to prevent enforcement of a zoning ordinance of the City of Wilton Manors. The circuit court held a hearing on the petition for writ of certiorari and denied the petition. No appeal was taken from said order. Subsequently, another hearing was held on the claim for injunctive relief and that remedy was also denied. From the order denying injunctive relief this appeal was perfected.

Although initially we questioned the jurisdiction of this court to consider this appeal, that question was postponed until consideration of the case on the merits. Upon further consideration we are persuaded that we do not have jurisdiction to entertain the appeal.

In a very similar situation it was held in Dade County v. McArthur Jersey Farm Dairy, Inc., 214 So.2d 362 (Fla. 3rd DCA 1968), that a taxpayer could not maintain an action seeking simultaneous certiorari and equitable relief, nor could the taxpayer seek equitable relief after maintaining a certiorari proceeding. We followed McArthur in Charles Sales Corp. of West Palm Beach v. Maxwell, 224 So.2d 752 (Fla. 4th DCA 1969), and we see no reason to deviate from the principle involved in those cases.

Accordingly, this appeal should be, and is hereby DISMISSED.

BERANEK and GLICKSTEIN, JJ., concur.


author: DWIGHT L. GEIGER, Associate Judge. HURLEY, Judge,

text:
    LAMBROS, INC., etc., Appellant, v. TOWN OF OCEAN RIDGE, FLORIDA, etc. et al., Appellee.
    No. 79-905.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Robert C. Salisbury, of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for appellant.
    Larry Klein, West Palm Beach, for appel-lee.
   DWIGHT L. GEIGER, Associate Judge.

Appellant, Lambros, Inc., doing business as Busch’s Restaurant, appeals an adverse final judgment entered by the circuit court of Palm Beach County which determined that the appellee, Town of Ocean Ridge, Florida, was not equitably estopped from applying a zoning ordinance to the Restaurant.

On December 30,1969, the Town adopted its Ordinance 229 which eliminated all commercial use of property in the municipality, but provided for the amortization of such commercial use for either forty years from construction of the improvement or twenty years from the date the use became nonconforming by the passage of the ordinance. Later, on February 2, 1976, the Town adopted another ordinance, its number 335, which repealed the provisions of Ordinance 229. The essence of Ordinance 335 was that it no longer required the elimination of the nonconforming (nonresidential) property. The purpose of this ordinance was to permit the indefinite continuation of the commercial use of those nonconforming properties.

Appellant wished to purchase Busch’s Restaurant which is situated in the Town. Appellant’s real estate broker called the Town Hall inquiring about the Restaurant’s zoning. He was informed of the adoption of Ordinance 335, and on March 11, 1976, appellant contracted to purchase the Restaurant for $480,000. Appellant posted a $10,000 deposit, and an additional $40,000 deposit was due on April 15, 1976. The closing was set for September 1, 1976.

Prior to the payment of the $40,000, the Town had its first reading of Ordinance 337. The intent of 337 was to repeal Ordinance 335. It provided for the elimination of all commercial use of property within either forty years from the date of its construction or twenty years from the adoption of the ordinance’s comprehensive land use plan, whichever is longer. Appellant was aware of this ordinance, and an officer of appellant appeared at the Town Council meeting and objected to the adoption of the ordinance. However, Ordinance 337 was adopted over appellant’s protest. With knowledge of this ordinance, eliminating nonconforming property, appellant paid the $40,000 deposit and on September 1, 1976, closed the transaction. Appellant subsequently brought the instant litigation in attempt to estop enforcement of Ordinance 337.

The appellant here raises two issues: first whether a municipal corporation has the burden of proving that a zoning change which prohibits continuation of a legitimate business is constitutional, and second whether in this case the trial court erred in refusing to apply equitable estoppel to prohibit enforcement of such a zoning change.

The question presented concerning burden of proof stated more fully is: once an ordinance properly under attack is shown to prohibit continuation of a legitimate use of land, whether at that time the burden of proof shifts to the municipality to show that the ordinance is constitutional, or whether the burden remains with the attacker to show further that the ordinance is unconstitutional.

We are of the opinion that in this situation, Florida law places no obligation on the municipality to go forward with proof of constitutionality of the ordinance until such time as the attacker has made out a prima facie case that the ordinance is arbitrary, unreasonable and confiscatory and, thus, unconstitutional. In Rural New Town Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975), this court held:

The burden is not upon the governing authority to approve or establish by competent substantial evidence that the zoning regulation or classification is reasonable or is in furtherance of its police power; the very adoption of that regulation creates a presumption of reasonableness and debatability. On the contrary, the burden rests upon the applicant to prove by competent substantial evidence that the existing ordinance or continued classification would be arbitrary, unreasonable or confiscatory and hence not “fairly debatable”. City of St. Petersburg v. Aikin, supra [217 So.2d 315 (Fla.)]. 315 So.2d at 480.

See also S. A. Healy Co. v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978); Dade County v. Beauchamp, 348 So.2d 53 (Fla. 3rd DCA 1977); 23 Fla.Jur., Municipal Corporations, § 103. We specifically refuse to apply the Pennsylvania rule that in this type of case the attacker need only show that the ordinance prohibits continuation of a legitimate use of land before the burden of proof shifts to the municipality to show its constitutionality. See Beaver Gasoline Co. v. Zoning Hearing Board, 445 Pa. 571, 285 A.2d 501 (1971) and Amerada Hess Corp. v. Zoning Board of Adjustment, 11 Pa.Cmwlth. 115, 313 A.2d 787 (1973).

The appellate courts in Florida have acknowledged the authority of a municipality to exclude certain uses of property entirely from a city. In Blank v. Town of Lake Clarke Shores, 161 So.2d 683 (Fla. 2d DCA 1964), the court approved a zoning ordinance which excluded all business from the municipality.. The final decree entered by The Honorable James R. Knott, Circuit Judge, now retired, was approved and quoted from at length by the appellate court. In the decree appealed from Judge Knott noted that “one who assails the validity of a zoning ordinance must carry the burden of both alleging and proving the invalidity of the ordinance; and this burden is an extraordinary one.” This type of zoning was also approved in the oft cited case of Gautier v. Town of Jupiter Island, 142 So.2d 321 (Fla. 2d DCA 1962). In both cases the court found the question fairly debatable and thus a constitutional exercise of legislative authority. No suggestion was made or intimated that the burden of proof was different from any other attack upon a municipal zoning ordinance. These cases indicate the rule as to the burden of proof is the same for all such attempts to strike down zoning ordinances.

The trial court here was correct in not requiring the municipality to prove the constitutionality of the zoning ordinance until the plaintiff had first made a prima facie showing of unconstitutionality. Since at the trial neither the plaintiff nor the Town offered any proof of constitutionality, the trial court did not err in refusing to set aside the ordinance on constitutional grounds.

Concerning the question of equitable es-toppel, we have carefully examined the record and find no error in the trial court’s refusal to hold the Town equitably estopped from enforcing the zoning change ordinance.

For the above reasons the judgment herein is AFFIRMED.

DOWNEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I respectfully dissent. The issue here is not whether we should alter the long established rule regarding the presumptive validity of zoning ordinances. Rather, as I see it, the question is what quantum of proof is required to shift the burden of going forward with the evidence. I am persuaded by the Pennsylvania Supreme Court’s thoughtful analysis of this question in Beaver Gasoline Co. v. Zoning Hearing Board, 445 Pa. 571, 285 A.2d 501 (1971), and would apply its rationale to the case at bar.

All acknowledge that zoning ordinances are presumed to be valid. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979). Furthermore, it is equally well accepted that the burden of establishing the invalidity of an ordinance is upon the party who seeks to have it declared invalid. City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968); Allapattah Community Assoc., Inc. v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980). Nonetheless, the question remains, “how much evidence must be adduced by the party attacking the ordinance to shift the burden of going forward with the evidence to the other side?” Several cases have announced the general principle that “[t]he burden of a party seeking relief from a zoning resolution is an extraordinary one which places upon the petitioner the duty of showing from the record before the trial court that the zoning ordinance challenged is no longer fairly debatable.” Dade County v. Beauchamp, 348 So.2d 53, 55 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 512 (Fla.1978); Marca, S.A. v. Dade County, 332 So.2d 142 (Fla. 3d DCA 1976). Even so, these cases do not prescribe a rigid rule to determine when the burden of going forward with the evidence shifts from the property owner to the municipality. This is the question we must address.

It is fundamental that an ordinance which purports to be an exercise of the police power must not be unreasonable, unnecessary or unduly oppressive, and the means which it employs must have a real and substantial relationship to the objects sought to be attained. Thus, zoning ordinances are valid whenever necessary for the preservation of the public health, safety, morals or general welfare, Allapattah Community Assoc., Inc. v. City of Miami, supra, but the power to regulate does not permit arbitrary, unreasonable or unnecessary in-termeddling with private legitimate businesses. Kavanagh v. London Grove Township, 486 Pa. 1133, 404 A.2d 393 (1979), appeal dismissed, 444 U.S. 1041, 100 S.Ct. 725, 62 L.Ed.2d 726 (1980).

Considering the above principles together with the fact that the right to use one’s own property as he or she sees fit is a fundamental and constitutionally recognized right, Amendments V and XIV, U. S. Constitution; Article 1, Section 2, Florida Constitution, it seems reasonable to suggest that we retain some flexibility in structuring those procedural devices which have as their raison d’etre the protection of fundamental rights. For example, the determination of what quantum of proof is necessary to shift the burden of going forward with the evidence is a purely procedural determination. There is no reason why the quantum of proof should not vary depending upon the type of ordinance under attack.

In the case at bar, we have a municipal ordinance which bans all commercial activity within the territorial limits of the township. I do not suggest that the ordinance be denied the traditional presumption of constitutional validity, but I do submit that its all-embracing character — which is facially evident — mandates that we carefully measure the quantum of proof required to shift the burden of going forward with the evidence. There is nothing novel in this approach. It merely exemplifies our ongoing concern that such procedural devices remain in balance so as to safeguard the rights of the individual as well as the rights of government.

The presumption of validity is not an impenetrable shield. There are innumerable examples in the law where one party is afforded the benefit of a presumption only to have it removed upon the introduction of a minimal amount of evidence. The field of criminal law suggests the most obvious example. Every defendant is presumed to be sane, but this presumption vanishes upon the introduction of some evidence of insanity. The burden then shifts to the state to prove the defendant’s sanity beyond and to the exclusion of every reasonable doubt. See Jones v. State, 332 So.2d 615, 620 (Fla.1976) (Sundberg, J., concurring).

The Supreme Court of Pennsylvania dealt with these very issues in Beaver Gasoline Co. v. Zoning Hearing Board, supra, and developed the following test:

In situations involving the total prohibition of otherwise legitimate land uses, which, by common experience, appear to be as innocuous as the land use here contested, the applicant has met his burden of overcoming the presumption of constitutionality by showing the total ban. Thereafter, if the municipality is to sustain the validity of the ban, it must present evidence to establish the public purpose served by the regulation. Id. 285 A.2d at 504-05.

Under the Beaver Gasoline test, the person attacking the ordinance continues to shoulder the initial burden of going forward with the evidence. Moreover, the burden shifts to the municipality only if the property owner demonstrates that (1) the contested ordinance totally bans an otherwise legitimate land use, and (2) the proposed land use is one which by common experience is deemed to be innocuous, i. e., one that does not give off noxious odors, disturb the tranquility of the area or have the obvious potential of poisoning the air or water. Given the unusual nature of the ordinance, there is no logical justification to place a greater burden on the property owner. We are, after all, engaged in a search for the truth and the governmental authority is in a vastly superior position to reveal the workings of its legislative mind. It would neither be unreasonable nor unduly burdensome to require the municipality to come forward and unveil the valid governmental purpose which heretofore has been presumed.

Again, Beaver Gasoline Co. v. Zoning Hearing Board, supra, spoke to this issue when it held:

However, requiring an applicant for a building permit to establish by affirmative evidence the nonexistence of a proper zoning purpose in the total prohibition of an otherwise legitimate business activity would be to place upon him an unrealistic and insurmountable burden. It is always difficult to prove a negative — to require a party to prove a negative such as the nonexistence of a proper zoning purpose is to raise difficulty to virtual impossibility.

Id. 285 A.2d at 504.

In the case at bar the appellant/property owner fully satisfied the Beaver Gasoline criteria. It introduced the ordinance into evidence, thereby establishing its all-inclusive nature (Tr. 14). Also, the parties stipulated that the commercial use in question was a restaurant which had operated on the premises for many years (Tr. 7, 10, 11). From the fact of its long existence, I submit it is reasonable to infer that it satisfied the second criterion of Beaver Gasoline. Thus, in my view, the appellant met its burden of proof so as to require the township to come forward and produce evidence demonstrating that the ordinance in question bears a substantial relation to the public health, safety, morals or welfare.

Accordingly, I would reverse and remand the cause for further proceedings at which the town of Ocean Ridge would be afforded the opportunity to present additional evidence.


text:
    John MERCEDE, Appellant, v. The MERCEDE PARK ITALIAN RESTAURANT, INC., d/b/a Venezia Restaurant, Appellee.
    No. 79-1987.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Stephen M. Bell, P. A., Plantation, for appellant.
    Anthony J. Titone of Titone & Roarke, Sunrise, for appellee.
   DOWNEY, Judge.

Appellant, John Mercede, sued appellee, Venezia Restaurant, to recover a cost of living rent adjustment pursuant to a lease. From an adverse final judgment for appel-lee this appeal was perfected.

The lease between the appellant landlord and the appellee tenant, dated January 1, 1975, provided for a basic annual rent payable monthly. In addition, the lease provided that an annual cost of living increase should be added to the monthly rent after the first year of the lease. On October 5, 1977, the appellant sent appellee a notice of the cost of living increase. The appellee began paying the cost of living increase with the November 1977 rent payment, but refused to pay any increase for any period before November 1977. Again on August 4, 1978, appellant notified appellee it owed additional rent based upon the increase in the Consumer Price Index and demanded the arrearages. Appellee paid the new increase but again refused to make any back payments.

Appellant sued to recover the allegedly past due increase based upon the Consumer Price Index. Appellee denied the debt and affirmatively pleaded, among other defenses, waiver and estoppel.

At trial before the court the parties stipulated to the admission of the lease and several letters between the parties and between counsel. The only testimonial evidence came from an accountant for appellant. ' It appears conceded in the record that the lease provided for a rental increase based upon the Consumer Price Index and that appellees had not made any payments per the Index for the period prior to November 1977. Appellee adduced no evidence in support of the affirmative defenses of waiver and estoppel. However, the trial court found “the plaintiff in this matter waives his right to any cost of living rent increase prior to his notices requesting same. Plaintiff failed to timely notice defendant of these increases.”

The burden of proving the 1ffirmative defense of estoppel and waiver was upon the appellee (State v. Hadden, 370 So.2d 849 (Fla. 3rd DCA 1979); Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854 (Fla. 2d DCA 1970); however appellee adduced no evidence at all to support those affirmative defenses. The evidence that was adduced by appellant reflected some delay in making demand upon appellee for increased rent, but mere delay is insufficient to support a defense of either waiver or estoppel.

Thus, it appears to us that appellant was entitled under the lease to an increase in rent after the first year based upon the Consumer Price Index. Appellee having failed to prove its affirmative defenses, judgment should be entered for appellant for the amount of said increases.

Accordingly, the judgment appealed from is reversed and this cause is remanded for further proceedings to determine the amount of rental increases due appellant based upon the increase in the Consumer Price Index as provided in the lease between the parties.

REVERSED AND REMANDED, with directions.

BERANEK and HERSEY, JJ., concur.

      . “Any lease executed beyond a 1 year period shall be increased by any increase in the cost of living index as published by the Bureau of Labor Statistics for every 1 year period after the expiration of the 1st 1 year period of this lease. The index to be utilized shall be the Consumers Price Index (all items) and the annual average applicable for the year shall be as specified therein. Said increases shall be added to the monthly rent.”