text:
    Jeff Lee PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2615.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Rehearing Denied Sept. 4, 1980.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, and Karen M. Gott-lieb, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.

      . Porter v. State, 347 S.2d 449 (Fla.3d DCA 1977).

   DANIEL S. PEARSON, Judge.

This year is the triennial of Porter v. State, and we reluctantly commemorate it by again reversing Porter’s conviction for sale and possession of heroin.

We will not prolong the observance of this anniversary. Following our earlier reversal, Porter was retried for selling (and in the process, possessing) thirty dollars worth of heroin to an undercover police officer, Sandra Tavanis.

The State’s case was based primarily on the testimony of Tavanis. Nobody was in the immediate presence of Tavanis (seated in her car in a bar parking lot) and Porter (standing next to Tavanis’ car) during the several minutes of negotiations immediately preceding the sale and when the money and contraband were exchanged. Several police officers in another car about seventy yards away had Tavanis under surveillance. The transaction occurred in the early evening on November 14, 1975. Since Tavanis was to continue her undercover work in the same general locale, Porter’s arrest was delayed until January 8, 1976.

Porter was the only witness for the defense. During his brief direct examination, the following occurred:

“Q. . . . Did you ever sell heroin to Sandra Tavanis?
“MR. GINSBURG [the prosecutor]: Objection;' leading.
“THE COURT: Sustained.
“Q. Did you ever make a sale of heroin
“MR. GINSBURG: Objection.
“THE COURT: The objection is sustained as to the last question.”

The abbreviated definition of a leading question as one which may be answered yes or no, see, e. g., 3 Wigmore, Evidence § 772 (Chadbourn rev.1970), is misleading. The real meaning of this definition is that a question which suggests only the answer yes is leading; a question which suggests only the answer no is leading; but a question which may be answered either yes or no, and suggests neither answer as the correct one, is not leading.

“Among other definitions, a leading question has been defined as one which may be answered ‘yes’ or ‘no.’ This, however, is not the most usual definition, or the one most exactly fixing the meaning of the term. The proper signification of the expression is a suggestive question, — one which suggests or puts the desired answer into the mouth of the witness. . .
We agree with the Supreme Court of Michigan, that a question is not necessarily objectionable as leading because it can be answered ‘yes’ or ‘no,’ and that a leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative.” Coogler v. Rhodes, 38 Fla. 240, 244, 21 So. 109, 110 (1897).

See also United States v. Durham, 319 F.2d 590 (4th Cir. 1963) (“The essential test of a leading question is whether it so suggests to the witness the specific tenor of the reply desired by counsel that such a reply is likely to be given irrespective of an actual memory.”); Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753 (1946).

In a case closely on point, the New Jersey Supreme Court determined that the direct examination question, “At any time did you intentionally strike anybody with this ax?,” put to a defendant accused of atrocious assault and battery, was not leading. The court said:

“The objection that the question was ‘leading’ was unsound. In a sense every question is ‘leading.’ If interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, ‘What is your position in this case?,’ is that is does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness’s attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scar-anos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440, 168 A. 749 (Sup.Ct.1932).” State v. Abbott, 36 N.J. 63, 174 A.2d 881, 889 (1961).

In the present case the State argues that even if the questions were not leading,, the error of sustaining its objections is harmless. It points to the fact that defense counsel later elicited from Porter testimony that on the date in question he did not meet Sandy Tavanis.

Were that the end of the matter, we might agree with the State that the defendant was not sufficiently prejudiced to warrant reversal. But the matter did not end there.

In closing argument the prosecutor remarked:

“Consider Mr. Porter’s own testimony and the questions his lawyer asked him. The only thing that Mr. Porter said was, T didn’t meet Sandra Tavanis at the bar on November 14th.’
“Well, certainly he wasn’t introduced to her as Sandra Tavanis. Certainly, he wasn’t introduced to her as a police officer.
“He never denied making any sale, and he never denied not being at the bar.” (Tr. 226-227).
“This man has not denied selling heroin on that day.
“MR. SANDBERG [defense counsel]: Objection, your Honor. This is—
“THE COURT: Sustained.
“MR. GINSBURG [the prosecutor]: The only testimony you heard was that on November 14th, he did not meet Sandra Tavanis. ...” (Tr. 241-242).

It is apparent, then, that the State’s position was that the defendant’s denial of meeting Tavanis on November 14, 1975, did not bring within its ambit a denial of selling heroin to her. Having taken that position, the State can hardly argue here that precluding the defendant from denying the sale was harmless in light of his denial of the meeting.

The second ground upon which we reverse Porter’s conviction is that the trial court improperly limited his cross-examination of Tavanis.

The theory of the defense was that it was not the defendant who sold heroin to Ta-vanis. Obviously, the officer’s ability to identify the defendant was critical to the defense. Tavanis had never seen Porter before the night in question. She admitted that due to the limited length of time She had to observe the defendant, she took special note of the area around his eyes and cheekbones. Her view of the defendant was limited to a half to three-quarter profile, since he did not directly face her. Her written description of the defendant failed to disclose prominent scars on the side and middle of the defendant’s forehead which he had had for many years.

To test Tavanis’ memory, ability to observe, and overall credibility, the defense inquired:

“Q. How many drug transactions were you involved in on that day?
“A. That was the only one that I had that day.
“Q. How many drug transactions were you involved in within that general period of time, within three weeks either way of that case?”

The prosecutor’s objection to the last question was sustained by the trial court.

The right of full cross-examination is absolute, and the denial of that right is harmful and fatal error. Coxwell v. State, 361 So.2d 148 (Fla.1978); Coco v. State, 62 So.2d 892 (Fla.1953). Cross-examination is the principal means by which a witness’ perceptions and memory are tested, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and its vital importance is even clearer when the cross-examination is of the key prosecution witness. Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977); Truman v. Wainwright, 514 F.2d 150 (5th Cir. 1975). Where, as in the present case, positive identification is made under circumstances of questionable reliability, the need for full cross-examination is further heightened.

“The necessity for full cross-examination is particularly acute when its purpose is to demonstrate the lack of credibility of an identification by attempting to determine whether or not the witness had recollection of specific characteristics of the defendant. It is axiomatic that the identification of a suspect at a much later time by witnesses who have seen the actual criminal on only a few occasions and then only for short periods is fraught with dangers because of the fallibility and suggestibility of human memory.” United States v. Fitzpatrick, 437 F.2d 19, 23 (2d Cir. 1970).

The cross-examination upon which the defendant had embarked and which was thwarted by the trial court’s ruling was one designed to elicit that Tavanis had, in the weeks surrounding the incident, made numerous undercover contacts and purchases of assorted contraband in situations similar to the present case; and that during the course of these activities she saw many persons for the first time and for limited periods of time. Such an examination, if permitted, could have effectively tested, and perhaps undermined, her ability to remember Porter as the person she dealt with on November 14, 1975, and from whom, as she stated, she bought a quantity of heroin.

The delay in arresting Porter, of course, exacerbated the need for this examination. A defendant who is arrested months after the incident and then called upon to remember his whereabouts and the events of a particular day may often be left with only a feeble and uncorroborated denial of the crime. State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977); Woody v. United States, 370 F.2d 214 (D.C. Cir. 1966); Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965). Such a defendant should, at least, be accorded the right to test the accuracy of the identification made by his principal accuser.

Since a new trial is being afforded the defendant, we will merely note in passing our disapproval of the prosecutor’s insidious efforts to prejudice the defendant by eliciting, under the guise of establishing identity, testimony that Porter was a well-known object of their drug investigation; the prosecutor’s suggestions that the defendant’s story was at worst a lie and at best a smoke screen; and other prejudicial harpoons. We are confident that when Porter is brought to trial for a third time, the prosecutor will observe the admonition that it is his duty “not to obtain convictions, but to seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for.” Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973). See also Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979).

Reversed.

      . Fourteen questions covered in three transcript pages.

      . Professor Wigmore’s treatise contains a humorous account of an “after dinner trial” at Old Bailey which illustrates the vice of the leading question. The defendant’s trial, including the verdict and imposition of a seven-year sentence, lasted two minutes, fifty-three seconds. The prosecution’s case consisted of a question to the pickpocketing victim, “I think you were walking up Ludgate Hill on Thursday 25th, about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces”; and a question to the constable, “Were you following the [victim] on the occasion when he was robbed on Ludgate Hill, and did you see the prisoner put his hand into the [victim’s] pocket and take this handkerchief out of it?” Both witnesses answered “Yes, sir,” and the trial was over. 3 Wigmore, Evidence § 769 (Chadbourn rev.1970) at 156.

      . There is a dearth of authority on the subject of whether the “did-you-do-it” question, asked of the defendant on direct examination in a criminal case, is leading. This scarcity is probably explained by the fact that most prosecutors do not have the temerity to interpose this objection. In general, no objections are more frivolous than those which are made to questions as leading ones. Nicholls v. Dowding, 1 Stark 81 (1815). Objections to questions as leading are generally captious and not intended to subserve the ends of justice. Towns v. Alford, 2 Ala. 378 (1841). Surely the ends of justice are not subserved by objecting to the defendant denying the crime with-which he is charged.

      . The State is obdurate in its insistence that the questions were leading. It suggests that since defense counsel obviously expected his client to give a negative answer to the question, it is therefore leading. Of course, this expectancy does not make the question leading. If this were so, then all questions asked by counsel who had interviewed or deposed witnesses beforehand would be leading. At oral argument the State, eschewing inconsistency, conceded that the prosecutor’s question to the police officer, Tavanis, “Did [the defendant] give you anything?” (calling for a yes or no answer with the expectancy that it would be answered affirmatively) was leading. The difference, said the State, was that defense counsel had not objected.

      . The prosecutor, solicitous of protecting the rights of the defendant, argued that to allow testimony of other drug investigations conducted by Tavanis would inject into the trial irrelevant narcotics dealings.

      . In these cases, the delay in the defendant’s arrest, occasioned by continued undercover activity of the officer, resulting in the defendant’s inability to effectively explain his whereabouts or activities on the alleged date of the incident, was held to be a denial of due process warranting dismissal of the charges.

      . Because of our disposition of this case, we do not address the point that the convictions of Porter for possession and sale of the same controlled substance cannot both stand. Mahaun v. State, 377 So.2d 1158 (Fla.1979); State v. Pinder, 375 So.2d 836 (Fla.1979).

      .E. g., on cross-examination the defendant stated that he was previously convicted but could not remember the exact number of times. In closing argument, the prosecutor said, “I asked how many times and he didn’t remember. What . . . kind of person doesn’t remember how many times . . . ?” Again, the State defends the propriety of this remark as being one directed to the defendant’s bad memory. We think it more plausible that the prosecutor was suggesting that the kind of person who would not remember was not one with a bad memory, but one whose criminal record was so long that it is likely he committed the crime for which he was on trial.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Earl W. POWELL, Appellant, v. Janet P. POWELL, Appellee.
    No. 80-175.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Paul, Landy, Beiley & Harper and Lawrence R. Metsch, Miami, for appellant.
    Mason & Meyerson and William John Mason, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Powell appeals from an order increasing from $2,700 to $3,500 per month the alimony provided his ex-wife in a 1976 final judgment which adopted an agreement between the parties. We affirm.

Under Section 61.14, Florida Statutes (1977) and the established law which is incorporated into that statute, modification of a previous alimony award is justified by a meaningful change in the financial circumstances of either party, relating to the needs of the spouse receiving the alimony or the ability of the other spouse to pay. E. g., Chastain v. Chastain, 73 So.2d 66 (Fla. 1954); Lenton v. Lenton, 370 So.2d 30 (Fla.2d DCA 1979); Meltzer v. Meltzer, 356 So.2d 1263 (Fla.3d DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979); Brown v. Brown, 315 So.2d 15 (Fla.3d DCA 1975); Rogers v. Rogers, 229 So.2d 618 (Fla.2d DCA 1969); Chord v. Chord, 209 So.2d 281 (Fla.3d DCA 1968).

In this case, the order below is amply supported by the. clear demonstration in the record that Ms. Powell’s living expenses and financial needs have greatly increased since the final judgment was entered. As a result, she was required to secure employment as a teacher at a private school in order to preserve the standard of living she had previously been able to maintain without working outside the home. Since the increase in the wife’s costs and needs was almost entirely caused by the ravages of inflation, however, Mr. Powell argues, relying on Greene v. Greene, 372 So.2d 189 (Fla.3d DCA 1979), that it cannot be considered as a basis for the upward modification of alimony. We reject this interpretation of the Greene decision. In Greene, the alimony award was erroneously modified in the trial court solely on the basis of a national increase in the cost of living without evidence that it had any adverse impact upon the wife’s actual situation. Thus, there was a total absence of the required showing that there had been a change in the circumstances of a party, as opposed to an abstract and therefore essentially irrelevant change in the economy as a whole. See also, Stoler v. Stoler, 376 So.2d.253 (Fla.3d DCA 1979). The result must be different, however, when, as in this case and Pope v. Pope, 342 So.2d 1000 (Fla.4th DCA 1977), which was approved in Greene, there is a specific demonstration of a resulting increase in the ex-spouse’s financial needs. Greene surely did not hold, or even suggest, that this classic change of circumstances cannot be considered because the reason that more money is needed lies in the pernicious erosion of the value of the dollar with the effect that the sums originally provided simply cannot buy nearly so much as when the judgment was entered. The law is completely to the contrary of any such view. As was well-expressed in Desilets v. Desilets, 377 So.2d 761, 765 (Fla.2d DCA 1979), which was decided subsequent to and which cites Greene :

With regard to the wife, the record reflects a substantial change in circumstances since 1975 in two respects. First, as noted above, the wife is now virtually unemployable. Additionally, the alimony award of $100 per month set in 1975 has been seriously eroded by the increase in the cost of living produced by inflation; of this we may take judicial notice. Stanley v. Stanley, 158 Fla. 402, 28 So.2d 694 (1947); Pope v. Pope, 342 So.2d 1000 (Fla.4th DCA 1977); Forte v. Forte, 320 So.2d 446 (Fla.3d DCA 1975), cert. denied, 351 So.2d 406 (Fla.1977); Annot., 18 A.L. R.2d 10 at § 5 (1951). In the cases cited, it was held that a rise in the cost of living is a change of circumstances which may be properly considered by a trial judge in increasing the financial obligations of a husband, [e. s.]

Concerning the opposite side of the change of circumstances coin, Powell stipulated that “he is presently able to pay . such additional reasonable alimony” as may be directed by the court, thereby admitting that his ability to pay had also increased. But he argues that this fact likewise cannot support the order under review. He cites Zedeck v. Zedeck, 334 So.2d 87 (Fla.3d DCA 1976) for this proposition. As a result of our conclusion that the order must be sustained on the basis of the material increase

in the wife’s needs alone, we need not rule directly upon this argument, beyond noting that the stipulation satisfies the statement in Desilets, at 377 So.2d 765, that because “the erosion of the purchasing power of the dollar falls not only on the wife but on the husband, . . . that factor alone might not justify an increase in alimony in the absence of a showing that the husband’s ability to pay has increased. Greene v. Greene, 372 So.2d 189 (Fla.3d DCA 1979). . [I]n this case, as we have already noted, there has been an increase in the ability of the husband to pay.” We do observe, however, that the appellant’s position is contrary to the Florida law on the subject, see, e. g., Firestone v. Firestone, 263 So.2d 223 (Fla.1972); McArthur v. McArthur, 95 So.2d 521 (Fla.1957); Lenton v. Lenton, supra; Terry v. Terry, 126 So.2d 890 (Fla.2d DCA 1961), cert. denied, 133 So.2d 321 (Fla.1961); and that his reliance on Zedeck is entirely misplaced. As already indicated, Zedeck is based on the determination that the property settlement agreement involved there was not subject to modification because of any change of circumstances. See also Salomon v. Salomon, 196 So.2d 111 (Fla.1967); Rubio v. Rubio, 347 So.2d 1093 (Fla.2d DCA 1977); White v. White, 338 So.2d 883 (Fla.3d DCA 1976). That principle has no application to this case, in which the agreement explicitly permitted the modification sought and secured below. See note 2, supra.

Affirmed.

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

      . The agreement provided, inter alia, for ten years of monthly alimony payments, terminating January 1, 1986. It specifically stated that “[e]ither party shall have the right to petition the court for modification of alimony payments pursuant to Florida Statute 61.14, during the period of time that alimony shall be an obligation of the husband as set forth herein.” Unlike such decisions as Pusey v. Pusey, 38So.2d 269 (Fla.3d DCA 1980); Zedeck v. Zedeck, 334 So.2d 87 (Fla.3d DCA 1976), and the cases cited in Zedeck, there is therefore no question that the alimony award is in fact subject to modification.

      . The consequence of a contrary ruling in Greene would have been the requirement of a virtually automatic adjustment in each existing alimony and support judgment, based solely on monthly changes in the consumer price index.

      . By the stipulation, Powell admitted the allegation of the petition for modification that his ability to pay had materially changed for the better, and was able therefore successfully to resist the appellee’s attempted discovery on that point. Alterman v. Alterman, 361 So.2d 773 (Fla.3d DCA 1978), cert. denied, 368 So.2d 1361 (Fla.1979); see Jacobs v. Jacobs, 50 So.2d 169 (Fla.1951); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla.3d DCA 1980).

      .His position is that zero (Greene) plus zero (Zedeck) add up to zero.

      . Of course, an increase in the husband’s ability would not itself justify an upward modification of alimony if the wife’s needs are already fully met either by the existing award or otherwise. See generally 10A Fla.Jur. Dissolution of Marriage § 53 (1973).

      . Note 2, supra.

      . Powell complains that the order under review “may have” provided for an extension of the periodic payments beyond the 1986 cut-off date provided in the agreement. Since the trial judge has not specifically so ruled, we do not now consider the appellant’s contention that such a determination would be error. But see Markgraf v. Markgraf, 320 So.2d 27 (Fla.2d DCA 1975), cert. denied, 330 So.2d 726 (Fla.1976); Cantor v. Cantor, 306 So.2d 596 (Fla.2d DCA 1975).


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

text:
    Randolph Jackson RUDD, Appellant, v. STATE of Florida, Appellee.
    No. 78-1202/T4-124.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.
    Rehearing Denied Aug. 26, 1980.

      Robert B. White, Jr., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a conviction in the Circuit Court for Orange County for the sale of an unregistered security, fraudulent sale of a security, and sale of a security by an unregistered salesman.

The question which we find determinative of this appeal is whether there was a sale of a security within the contemplation of section 517.07, Florida Statutes (1973).

We conclude that there was no sale of such security and reverse.

The state’s complaining witness, Mrs. Golden Zimmerley, an uneducated woman, was introduced to appellant, Randolph Jackson Rudd, by her sister-in-law. Rudd discussed with Mrs. Zimmerley certain building projects in which he was involved and as a result of some negotiation, Mrs. Zimmerley delivered $25,000.00 to him pursuant to an agreement prepared by Rudd and entitled, “Letter of Intent.” Rudd received the money on September 24, 1973. After October 12, 1973, Mrs. Zimmerley heard nothing more from him and her attempts to contact him were unsuccessful. No money was ever returned.

The Florida Legislature enacted the Sale of Securities Act to protect the public from fraudulent and deceptive practices in the securities market. O’Neill v. State, 336 So.2d 699 (Fla. 4th DCA 1976). To effectuate these remedial purposes, the Legislature broadly defined those transactions and instruments which constitute a security in section 517.02(1), Florida Statutes (1973), to include:

[A]ny note, stock, treasury stock, bond, debenture, evidence or indebtedness, certificate of interest or participation, whiskey warehouse receipt or other commodity warehouse receipt, or right to subscribe to any of the foregoing; certificates of interest in a profit-sharing agreement or the right to participate therein; certificate of interest in an oil, gas, petroleum, mineral, or mining title or lease, or the right to participate therein; collateral trust certificate, preorganization certificate, preorganization subscription, or any transferable share, investment contract, or beneficial interest in title to property, profits, or earnings; interests in or under a profit-sharing or participation agreement or scheme, or any other instrument commonly known as a security, including an interim or temporary bond, debenture, note, certificate, or receipt for a security or for subscription to a security.

There is growing support for the view, however, that the test of the existence of a security is not whether the interest of the owner is of a kind or character within the definition of “security” in the statute. Wiener v. Brown, 356 So.2d 1302, 1306 (Fla. 3d DCA 1978). See also United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975). Rather, form should be disregarded for substance and the emphasis should be on economic reality, with a transaction excluded from the act if not within its spirit and intention. Wiener at 1306.

Therefore, whether a particular investment constitutes a security depends on the facts and circumstances of each individual case. Levine v. I. R. E. Properties, Inc., 344 So.2d 938 (Fla. 3d DCA 1977). Guidance is available from the United States Supreme Court which in S. E. C. v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946),. established a three-pronged test for determining whether a transaction constituted a security or, more specifically, an “investment contract” as that term is used in section 2(1), Securities Act of 1933, as amended by section 3(a)(10), Securities Exchange Act of 1934 [15 U.S.C., § 78(c)(10)]. The court defined “investment contract” as a contract, transaction or scheme whereby a person invests money in a common enterprise and is led to expect profits solely from the efforts of another. Howey, 328 U.S. at 297, 66 S.Ct. at 1102, 90 L.Ed. at 1249. The Howey test has been accepted and applied in Florida. See, e. g., Brown v. Rairigh, 363 So.2d 590 (Fla. 4th DCA 1978); Levine v. I. R. E. Properties, Inc., 344 So.2d 938 (Fla. 3d DCA 1977).

The state correctly points out that the Howey test, as developed, applies to “investment contracts” and is not the exclusive test for determining whether an instrument or transaction is a security. See Weiner at 1306. The United States Supreme Court, however, in United Housing, stated that the Howey test embodies the essential attributes that run throughout its decisions defining a “security.” The touchstone is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entreprenurial or managerial efforts of others. United Housing, 421 U.S. at 851, 95 S.Ct. at 2060, 44 L.Ed.2d at 632. It should also be noted that in Levine, the Third District Court of Appeal defined “security” by using the Howey test, without distinguishing between the broad term “security” and the narrower “investment contract.”

Application of the Howey test in the instant case requires that three elements be established:

(1) An investment of money;
(2) The existence of a common enterprise;
(3) An expectation of profits to be derived solely from the efforts of another.

The term “loan” and “investment” are often used when referring to the same type of transaction. However, a loan, which is the expectation of a return of the money transferred plus an agreed return, is not an investment which under the Howey test requires an agreement to share in the profits.

It is this point that controls the case before us. The state has failed to prove that the transaction was an investment and not a loan. The state’s evidence that the transaction was an investment consisted solely of the testimony of Mrs. Zimmerley and the “Letter of Intent.” Mrs. Zimmer-ley used the terms “loan” and “investment” interchangeably and admitted she did not know the difference. In addition, the “Letter of Intent” referred to the $25,000.00 as a “renewable loan.”

While it does not appear in the record, we have concluded that the state elected to prosecute under section 517.02(1) because the statute of limitations had run on those offenses more fittingly tailored to prohibit and punish Rudd’s criminal conduct.

While it offends us to see Rudd’s conduct go unpunished we cannot approve prosecution under an inapplicable statute, even though the proper section is no longer available, regardless of how desirable that result may be.

REVERSED and REMANDED with directions to discharge defendant.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . This section was amended November 1, 1978 and now appears as section 517.021(15). The revision has left the prior definition essentially unchanged.

      . Under the 1973 Florida Statutes, the statute of limitations for prosecution of offenses committed under the Sale of Securities Act was five years. § 517.302, Fla.Stat. (1973). The period for prosecution of larceny was two years. § 932.465(2), Fla.Stat. (1973). Here, the initial information was not filed against appellant until October, 1977, some four years after appellant received the money from Mrs. Zimmerley.

      . Section 811.021, Florida Statutes (1973)— Larceny defined; penalties; sufficiency of indictment, information or warrant.
      (1) A person who with intent to deprive or defraud the true owner of his real or personal property or the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person:
      (a) Takes from the possession of the true owner, or of any other person; or obtains from such person possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or obtains the signature of any person to a written instrument, the false making whereof would be punishable as forgery; or secretes, withholds, or appropriates to his own use, or that of any other the true owner, any money, personal property, goods and chattels, thing in action, evidence of debt, contract, or property, or article of value of any kind; or (b) Having in his possession, custody or control, as a broker, bailee, servant, attorney, agent, employee, clerk, trustee, or officer of any person, association, or corporation, member of co-partnership, pool or joint adventure, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any money, personal thing or action, goods and chattels, evidence of debt, contract, property, or article of value of any kind, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof; shall on conviction, be guilty of larceny.


author: PER CURIAM.

text:
    John POLITIS, Appellant, v. GENERAL HOTEL AND RESTAURANT SUPPLY CORP., Appellee.
    No. 80-145.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 19, 1980.
    Roderman & Berman and Bernard Ber-man, Ft. Lauderdale, for appellant.
    Jeffrey R. Roth, Miami, for appellee.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976), and Boat Town U.S.A., Inc. v. Mercury Marine Division of Brunswick Corp., 364 So.2d 15 (Fla. 4th DCA 1978).


text:
    ETHYL CORPORATION, a Foreign Corporation, Appellant, v. David BALTER, Appellee.
    No. 78-994.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 4, 1980.
    See Fla.App., 386 So.2d 1226.

      Britton, Cohen, Kaufman, Zinkow, Benson & Schantz and John L. Britton, Fort Lauderdale, for appellant.
    Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Ethyl Corporation, one of several defendants below, appeals from a final judgment for large amounts of compensatory and punitive damages entered in favor of the plaintiff, David Balter. The judgment was entered on a jury verdict which, in answer to a special interrogatory, found that Ethyl had maliciously interfered with Balter’s advantageous business relations. Upon the conclusion that the evidence establishes as a matter of law that Ethyl committed no such tort, we reverse the judgment below and order that one be entered for the appellant instead.

Balter’s claims for damages stem ultimately from the loss of his interest in, and employment opportunities with Pac-Craft Corp., a now-defunct Dade County concern, of which he was once the president, chief operating officer, and owner of 50% of the capital stock. Pac-Craft was engaged in the processing and printing of polyethylene film. It obtained the vast majority of its primary raw material, the film itself, from Ethyl, one of the largest manufacturers of that product in the country. During the late 1960’s, Pac-Craft encountered severe financial difficulties which primarily included its inability to pay its outstanding account with Ethyl, by far its largest creditor. As a result, Pac-Craft negotiated a $450,000 loan from the City National Bank of Miami (CNB), which was personally guaranteed both by Balter and Stanley Fromm, the owner of the other half of Pac-Craft, and which was secured by their stock in the company. The only reason the bank agreed to the loan was that Ethyl guaranteed it. Ethyl had decided, rather than forcing Pac-Craft into bankruptcy, instead to attempt to preserve the existence of an important customer in the hopes of receiving a greater return on its outstanding balance and of securing future business as well. In March of 1969, however, Pac-Craft defaulted on the loan. In accordance with the guarantee agreement, the CNB debt was satisfied by Ethyl which was assigned both the pledged Pac-Craft stock and the personal guarantees of Balter and Fromm.

Free now to direct the affairs of Pac-Craft as it wished, Ethyl entered into an agreement with Balter under which he would receive back all of the Pac-Craft stock and be released from his personal guarantee if he were able to effectuate a reorganization of Pac-Craft under Chapter XI of the Bankruptcy Act. In order to comply with this agreement by supplying sufficient funds to achieve a satisfactory Chapter XI plan, Balter entered into a separate contract with a financier named Paul Wolf, who was represented by John Scussel. This agreement called for Wolf to provide $170,000 of partial funding to Pac-Craft in return for making Wolf a director of the company, and granting him the option to purchase 48% of the stock upon Balter’s receipt of all the shares from Ethyl. Bal-ter, however, was unable to produce an additional $34,000 which was necessary to fund the plan which had been finally approved by the Chapter XI bankruptcy court and by Ethyl and the Pac-Craft creditors’ committee which Ethyl dominated as the control creditor. Wolf then withdrew $100,000 of the $170,000 he had deposited with the court, dooming Balter’s plan to failure. Subsequently, Wolf, supposedly in order to protect the remaining $70,000 he could not withdraw, himself financed the entire amount necessary to reorganize Pac-Craft. Thereafter, he received all of the stock from Ethyl, which he held until he sold his holdings in 1971. Wolf’s plan involved a payment to creditors of some 37% of the outstanding indebtedness. Ethyl thus lost more than $300,000 out-of-pocket in its dealings with Balter and Pac-Craft.

In December, 1969, Balter filed suit against Wolf, alleging a breach of their agreement because of Wolf’s withdrawal of the $100,000. Two years later, Balter filed an amended complaint against several more parties-defendant, including Ethyl. The only counts against Ethyl which now concern us alleged (1) a breach of contract, based upon Ethyl’s refusal to approve initial plans of reorganization submitted by Bal-ter, which would have required no or substantially less monies to fund, but which would also have brought Ethyl far less return on its outstanding claim; and (2) “malicious interference with contract and with reasonable business expectancies.” The latter count was, apparently, primarily based on an alleged interference with the Baiter-Wolf agreement, because of Ethyl’s solicitation from others of subsequent and more favorable offers to reorganize. Balter claimed that the submission of such an offer by the Smart-Pac Corp. made it necessary for him to sweeten “his” plan by the additional $34,000 he subsequently was unable to raise. It was thus claimed that Ethyl had thereby become responsible for Wolf’s withdrawal of his funds in breach of his contract.

After a three-week trial, the jury found in favor of Ethyl on the breach of contract claim. As to the interference count, however, the jury answered “yes” to a special interrogatory which asked “Do you find that Ethyl Corp. maliciously interfered with the contract or with reasonable business expectations of David Balter, which was a legal cause of loss to David Balter?” Ethyl’s appeal results from the judgment entered pursuant to this conclusion.

While Ethyl’s attempted interference with the Balter-Wolf contract was apparently the primary tortious act upon which the plaintiff relied below, the trial involved a confusing amalgam of the entire decade-old and immensely complex set of relationships between and among all the parties involved. Our analysis of the massive record on appeal has been hampered by this fact; by the failure of the special verdict to specify precisely with which “contract or . reasonable business expectations” Ethyl was found guilty of interfering; and even more by Balter’s understandable inability to articulate a coherent, consistent theory of liability. Nevertheless, we have carefully reviewed the entire transcript in the light of the applicable law. We find no evidence whatever to sustain the verdict against Ethyl on any basis.

To establish the tort of interference with a contractual or business relationship, it is well-settled in Florida that one must allege and prove (1) the existence of a business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant and (3) damage to the plaintiff as a result of the breach of the business relationship. E. g., Nitzberg v. Zalesky, 370 So.2d 389 (Fla. 3d DCA 1979); Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 1st DCA 1971). Turning first to Ethyl’s alleged' interference with the Baiter-Wolf agreement, the existence of the agreement itself may satisfy the first requisite of the tort. There are any number of reasons, however, why the remaining requirements have not been met. First and foremost, the evidence presented at trial conclusively established — and Balter has admitted — that Ethyl never attempted to interfere directly with the Baiter-Wolf relationship, and did not even communicate with Wolf until after he had already withdrawn his $100,000. Thus, there was a total lack of proof of a direct interference with that agreement, which is indispensible to the existence of an actionable wrong. Balter was able to show, at most, that steps taken by Ethyl very indirectly led to Wolf’s withdrawal from the arrangement. Even if those acts were not privileged, as we hold infra they were, such conduct simply does not meet the requirements of the intentional tort of interference. There is no such thing as a cause of action for interference which is only negligently or consequentially effected. 4 Restatement (Second) of Torts § 766 C (1979). See also Hales v. Ashland Oil, Inc., 342 So.2d 984 (Fla. 3d DCA 1977), and cases cited. Furthermore, the only expectations which Balter would even arguably have realized had Wolf not reneged on his agreement were those which flowed solely and directly from Ethyl’s own contract to return the stock if a plan of arrangement were consummated. Hence, Ethyl was essentially accused of interfering with its own undertaking to Balter. No such action lies under the law of Florida. See United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979), and cases cited.

Balter also apparently contends that Ethyl may be held liable because of various pre-Chapter XI actions — including selling Pac-Craft allegedly defective film and “causing” City National to call its loan— which he says “forced” the corporation into reorganization. Again, there are numerous reasons why such claims may not be recognized. Primary among them is the fact that these activities were not directed against Balter or his relationship with Pac-Craft at all, but merely to the corporation itself. While they may or may not have justified an action by Pac-Craft against Ethyl, or a stockholder’s derivative action filed by Balter in the name of Pac-Craft, they did not invade Balter’s individual rights and therefore cannot form the basis of a tort action by him individually. See, e. g., Alario v. Miller, 354 So.2d 925 (Fla. 2d DCA 1978), and cases cited; Remy Beverages, Inc. v. Myer, 56 N.Y.S.2d 828 (Sup.Ct. 1945), aff’d 269 App.Div. 1013, 59 N.Y.S.2d 371 (1945). In addition, Balter specifically released Ethyl from any such personal claims in return for its release of his $360,-000 guarantee on the CNB note Ethyl had satisfied. See Genung v. Loftin, 152 Fla. 759, 13 So.2d 149 (1943); Berry v. Pyrofax Gas Corp., 121 So.2d 447 (Fla. 1st DCA 1960). Finally, a complex and utterly unforeseeable series of events intervened between these actions and Balter’s eventual failure to receive the Pac-Craft stock —which would have occurred had Balter only been able to comply with the final reorganization plan which Ethyl had approved and with which it did not interfere. Hence, there was no proximate relationship between the activities in question and Balter’s alleged damages. See Doft & Company, Inc. v. Home Federal Savings & Loan Ass’n., 592 F.2d 1361 (5th Cir. 1979); Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148 (Fla.1949); Seaway Yacht Sales, Inc. v. Brunswick Corp., 242 So.2d 192 (Fla. 3d DCA 1970).

Insofar as the plaintiff separately claims the right to recovery for Ethyl’s “interference” with expectations arising from the Balter-CNB-Ethyl loan agreement or the Baiter-Ethyl “reorganization” contracts, his contentions also founder upon the principle, to which we have already referred, that a cause of action for interference does not exist against one who is himself a party to the contract allegedly interfered with. E. g., United Yacht Brokers, Inc. v. Gillespie, supra; Paradise Shores Apts., Inc. v. Practical Maintenance Co., 344 So.2d 299 (Fla. 2d DCA 1977); Roberts Co., Inc. v. P.B.O. Ltd., 322 So.2d 633 (Fla. 3d DCA 1975); Days v. Florida East Coast R. Co., 165 So.2d 434 (Fla. 3d DCA 1964); see Berenson v. World Jai-Alai, Inc., 374 So.2d 35 (Fla. 3d DCA 1979).

There is, moreover, a completely separate, additional, and overriding reason which precludes Ethyl’s liability for “interference” with any of the various contracts and relationships cited by Balter. Ethyl was, as a matter of law, privileged to act as it did throughout the entire course of events involved in this case. At all times, its actions were reasonably directed to the recovery of the very substantial sums it was owed by Pac-Craft, to the protection of its status as the co-obligor with the corporation on a |450,000 loan it was later required to pay, and, finally, as the lawful holder of 100% of its stock. Nitzberg v. Zalesky, supra, and Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla.1977), among many other authorities, establish the principle that, so long as improper means are not employed, activities taken to safeguard or promote one’s own financial, and contractual interests are entirely non-actionable. See also, e. g., Coronet Development Co. v. F.S.W., Inc., 379 Mich. 302, 150 N.W.2d 809 (1967); Petit v. Cuneo, 290 Ill.App. 16, 7 N.E.2d 774 (1937); accord, 4 Restatement (Second) of Torts, § 769, comment c (1979); cf. Matter of Kearney Chemicals, Inc., 468 F.Supp. 1107 (D.Del.1979).

It is also clear, contrary to Balter’s position here, that it is irrelevant whether the person who takes authorized steps to protect his own interests does so while also harboring some personal malice or ill-will towards the plaintiff — that is, in this context, that Ethyl’s employees, while attempting to protect its economic situation, also may have happened to dislike Balter personally. In Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 938 (1887) the first Florida decision to recognize the tort of interference, our supreme court squarely so stated:

“Where one does an act which is legal in itself, and violates no right of another person, it is true that the fact that the act is done from malice, or other bad motive towards another, does not give the latter a right of action against the former.”

As the court held in the leading case of Beardsley v. Kilmer, 236 N.Y. 80, 140 N.E. 203, 205-206 (1923):

[W]e have a case where the plaintiff is complaining of and seeking redress for injuries caused by an act which is the product of mixed motives some of which are perfectly legitimate. The question is whether his cause of action can successfully rest upon such a foundation. We feel sure it cannot.
* * * * * *
[I]n other jurisdictions in this country and in England the courts in response to a broader and more equitable vision of the interrelated rights of individuals have tended toward the denial of this proposition that it is lawful to perform an otherwise legal act injuring another when there is no excuse for its performance except the malicious purpose of injury. [citing numerous cases]
But as we have pointed out we are compelled to disagree with plaintiff’s view that the acts complained of were solely the conception and birth of malicious motives, and when we do this and decide that there were also legitimate purposes the rule seems to be perfectly well established that there is no liability. The question how far one individual shall be restrained from doing acts which are inherently proper out of respect for the rights of others is bound to be a delicate one. The proposition that a man may not dig a well upon his own land or enter upon a lawful business is one to be advanced with considerable caution, and the cases seem firmly to establish the rule that if he digs a well because he really wants the water or starts the business for personal advantage or gain his neighbor is without remedy however much he suffers, and even though the act may also have been tinged with animosity and malice. [e.s.]

There seems to be no authority which holds to the contrary of this proposition. Accord, e. g., Arnold v. Moffitt, 30 R.I. 310, 75 A. 502 (1910); Raycroft v. Tayntor, 68 Vt. 219, 35 A. 53 (1896); cases collected, W. Prosser, Law of Torts § 129 at 943, nn. 93-94 (4th ed. 1971); 30 Am.Jur. Interference §§ 33, 51 (1958); 45 Am.Jur.2d Interference § 23 (1969); Annot., 26 A.L.R.2d 1227, 1259, § 23 (1952). See generally DeMarco v. Publix Supermarkets, Inc., 384 So.2d 1253 (Fla. 1980), affirming and adopting, 360 So.2d 134 (Fla. 3d DCA 1978); Catania v. Eastern Airlines, Inc., 381 So.2d 265, 267 (Fla. 3d DCA 1980).

In support of his contrary position on this issue, Balter relies solely upon an isolated phrase which appears in Nitzberg v. Zalesky, supra, at 370 So.2d 391, and Serafino v. Palm Terrace Apartments, Inc., 343 So.2d 851, 852 (Fla. 2d DCA 1976), to the effect “that a contracting party has a justification or privilege to interfere where necessary to protect that party’s own contractual rights provided such interference is without malice.” [e.s.] Insofar as the emphasized clause, which is clearly dictum in both cases, may imply that otherwise privileged activity becomes tortious simply if it is accompanied by a malicious disposition, we believe, for the reasons stated, that it is not a correct statement of the law. Hence, to that extent, we recede from that expression in Nitzberg, and disapprove the one in Ser-afino.

In support of this determination, we note that the out-of-state cases and text authority cited in Serafino — which was in turn, the sole basis for the statement in Nitzberg —deal only with quite different issues from those arising from the economically privileged actions which are involved in this case, as well as in Nitzberg and in Serafino itself. The only Florida case cited on the question in Serafino, Hunter Lyon, Inc. v. Walker, 152 Fla. 61, 11 So.2d 176, 177 (1942) actually holds that “[t]he ultimate issue will be whether the interference charged was done solely through malice or in the lawful protection of defendant’s loans.” [e.s.] We similarly find in this case that, since it is beyond question that Ethyl acted in the lawful protection of its legitimate interests in receiving the money it was owed and not “solely” out of malice, the personal feelings its employees may have had about Balter make no difference at all.

The record demonstrates that Balter lost his interest in Pac-Craft and that Ethyl had taken various actions over the years which had something to do with that eventual result — but it shows nothing else. There is utterly no evidence that Ethyl committed any actionable wrong, that it engaged in any activity which is or should be recognized by the law of torts as giving rise to an action by Balter to recover damages on his behalf.

We therefore reverse the judgment against Ethyl and remand the cause with directions that judgment be entered in its favor.

Reversed and remanded.

      . Fromm relinquished all interest in his stock in return for the release of his personal guarantee, and was not made a party to this action.

      . This occurred because, at the last minute, the Pan American Bank of Hialeah refused to lend Balter the money. See Balter v. Pan American Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA 1980). Balter claimed that this action resulted in part from the failure of his attorney, Robert Frank, timely to supply the documents demanded by the bank as preconditions to the loan. See Balter v. Frank, 386 So.2d 1227 (Fla. 3d DCA 1980) opinion filed this date. Balter claimed that all of these acts, as well as those of Ethyl, Wolf, and Scussel, were wrongful and that all, acting together in a sort of grand conspiracy, were jointly responsible for the loss of “his” company, Pac-Craft.

      .Pac-Craft owed Ethyl over $500,000, more than 75% of its outstanding indebtedness.

      . Balter has cross-appealed from the judgment below, arguing, inter alia, his entitlement to a directed verdict on this count. We hold, to the contrary, that the verdict on this issue is completely supported by the evidence and that the other points raised in the cross-appeal likewise present no error.

      . Wolf was held liable on both breach of contract and interference counts. The jury also found against Scussel on an interference claim. See the companion appeal in Scussel v. Balter, 386 So.2d 1227 (Fla. 3d DCA 1980). It ruled in favor of co-defendant Robert Frank. See note 2, supra, and Balter v. Frank, 386 So.2d 1227 (Fla. 3d DCA 1980). At the conclusion of the plaintiffs case, the trial judge directed a verdict in favor of Pan American Bank of Hialeah. See note 2, supra. We affirmed that action in Balter v. Pan American Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA 1980).

      .The result reached by the jury is probably attributable to a clearly erroneous instruction which virtually directed a verdict in Balter’s favor. If we did not conclude that judgment must be entered for Ethyl, the charge in question would have required reversal for a new trial.

      . Which the jury found was not itself breached.

      . See note 2, supra, and accompanying text.

      . The record contains no evidence of any such improper or unlawful activity by Ethyl. Compare cases cited, W. Prosser, Law of Torts § 129 at 936-937, nn. 30-35 (4th ed. 1971).

      . We assume without deciding the correctness of Balter’s very dubious position that there was some evidence of such motivation in Ethyl’s conduct. It should be noted, however, that the existence of any such “malice” is completely belied by Ethyl’s continued willingness, even eagerness, for Balter to continue as the head and owner of Pac-Craft, even when it enjoyed repeated opportunities either to bankrupt the company outright or to take it over itself and thus to freeze him out entirely.


text:
    David BALTER, Appellant, v. ETHYL CORPORATION, etc., et al., Appellees.
    No. 78-1402.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 8, 1980.
    Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellant.
    Britton, Cohen, Kaufman, Zinkow, Benson & Schantz and John L. Britton, Fort Lauderdale, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final order under review is affirmed upon a holding that: (a) the underlying judgment upon which pre-judgment interest was sought and denied below is itself subject to reversal as to the defendant Ethyl Corporation, and, consequently, pre-judgment interest thereon was properly denied as to such defendant, Ethyl Corporation v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980) (case no. 78-994, opinion released this date), and (b) pre-judgment interest on the plaintiff Balter’s claim for tortious interference with advantageous contractual relations against the defendants herein did not lie, in any event, because, in our view, neither test for the allowance of such interest established by Sullivan v. McMillan, 37 Fla. 134, 143-144, 19 So. 340, 343 (1896), was met in this case. Vacation Prizes, Inc. v. City National Bank of Miami Beach, 227 So.2d 352 (Fla. 2d DCA 1969).

Affirmed.


text:
    David BALTER, Appellant, v. Robert FRANK, Appellee.
    No. 78-1019.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 4, 1980.
    Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The plaintiff, David Balter, appeals from a judgment entered pursuant to a jury verdict in favor of Robert Frank, one of the defendants below. It was alleged that Frank, an attorney, had been guilty of malpractice or had breached a specific oral agreement which resulted in the refusal of the Pan American Bank of Hialeah to fund a loan it had allegedly promised to make to Balter. See Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), at notes 2, 5. Balter contends that his motion for a directed verdict against Frank on the issue of liability should have been granted. We hold, to the contrary, that the record amply supports both the trial court’s denial of the motion and the jury’s resolution of the issue. See Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977).

Affirmed.

      . See the companion cases, involving co-defendants, of Balter v. Pan American Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA 1980); Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980); and Scussel v. Balter, 386 So.2d 1227 (Fla. 3d DCA 1980).

      . In Balter v. Pan American Bank of Hialeah, supra, we held that this “contract” was unenforceable.


text:
    John J. SCUSSEL and Paul Wolf, Appellants, v. David BALTER, Appellee.
    No. 78-997.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 4, 1980.

      James 0. Nelson, Miami, for appellants.
    Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

This appeal is from a judgment for compensatory and punitive damages entered pursuant to a jury verdict finding that the appellant John Scussel, one of the defendants below, had maliciously interfered with an advantageous business relationship between the plaintiff David Balter and Paul Wolf. Scussel claims the right to the entry of judgment in his favor on two separate grounds. We find no merit in either and affirm.

Scussel first contends that he could not be found to have tortiously interfered with the Balter-Wolf relationship because there was no showing that Wolf violated any specific contractual obligation he owed Balter. We need not determine whether this was in fact the case. This is so because an action lies for intentional interference with a business expectancy which arises even from an unenforceable agreement when, as the jury could find in this case, the understanding would have been complied with if the defendant had not improperly intervened. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979), and cases cited; John B. Reid & Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla. 3d DCA 1965).

Scussel secondly suggests that his actions were protected by the privilege afforded an agent who, upon request, gives “honest advice” that it is in his principal’s best interests to breach an existing relationship. See 4 Restatement (Second) of Torts § 772(b) (1979). We find, however, that the showings in the record of Scussel’s active involvement in Wolf’s affairs and of his personal motivations and ulterior purposes for securing Wolfs withdrawal from his undertaking with Balter demonstrate the inapplicability of this principle. See London Guarantee & Accident Co. v. Horn, 206 Ill. 493, 69 N.E. 526 (1903); Morgan v. Andrews, 107 Mich. 33, 64 N.W. 869 (1895); W. Prosser, Law of Torts § 129 text and authorities at 944, nn. 5-7 (4th ed. 1971).

Affirmed.

      . We have considered other aspects of the action, as they relate to other defendants, in Balter v. Pan American Bank of Hialeah, 383 So.2d 256 (Fla. 3d DCA 1980); Balter v. Frank, 386 So.2d 1227 (Fla. 3d DCA 1980); and Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980).

      . The jury also found and judgment was entered against Wolf. See Ethyl Corp. v. Balter, supra, note 5. While Wolf initially joined in the notice of appeal in this case, he has since abandoned the appeal and the judgment against him is therefore affirmed without further discussion.

      .Scussel improperly represented himself as Wolfs attorney and was disciplined for doing so by the supreme court in Florida Bar v. Scussel, 240 So.2d 153 (Fla.1970).


text:
    The MERBAN CORPORATION, a Swiss Corporation, Appellant, v. Stuart W. PATTON, Herbert L. Nadeau, Martin E. Segal, and Roland J. Zeller, Appellees.
    No. 79-2286.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 3, 1980.
    Rollnick, Squitero & Katz and Michael D. Katz, Miami, for appellant.
    Patton, Kanner, Segal, Zeller, King & Kubit and J. Alberto Gonzalez-Pita, Miami, for appellees.
    Before NESBITT and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This appeal is from a summary final judgment which construed an attorney’s opinion that “under Florida law the second mortgage is valid and non-usurious under its terms” so that it did not express an opinion that the transaction for which the second mortgage was subsequently used was not an usurious transaction. The opinion was given at the request of the attorney for the lender by the attorney for the borrower. The transaction was closed in another state using additional documents not submitted to the attorney for the borrower.

We agree that the trial judge did apply the correct rules of law and that he did not misconstrue the limited terms of the opinion. See Hamilton Const. Co. v. Board of Public Instruction, 65 So.2d 729, 731 (Fla. 1953); All-Dixie Insurance Agency, Inc. v. Moffatt, 212 So.2d 347 (Fla.3d DCA 1968); Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla.2d DCA 1978). He correctly found that the appellee was entitled to a judgment as a matter of law because the second mortgage was not usurious under its terms.

Affirmed.


author: SHARP, Judge.

text:
    Maggieruth (Boram) JOHNSTON, Appellant, v. Forrest Ray BORAM, Appellee.
    No. 79-1253/T2-37.
    District Court of Appeal of Florida, Fifth District.
    July 9, 1980.
    Rehearing Denied Aug. 26, 1980.
    Eilon Krugman-Kadi, of Barton & Cox, Gainesville, for appellant.
    G. Don Ritter, Ocala, for appellee.
   SHARP, Judge.

This appeal was taken from a judgment awarding custody of two minor children, Alton Ray Boram and Latasha Boram, to their father. There was competent substantial evidence before the trial judge to support the award of custody. Absent a clear abuse of discretion, the award of the trial judge should be affirmed. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Brock v. Brock, 349 So.2d 782 (Fla. 1st DCA 1977).

The trial court failed to provide visitation rights for the mother. The noncustodial parent should be granted reasonable visitation with a child unless there is proof of extreme circumstances, or the trial court finds that the visitation will adversely affect the welfare of the child. Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974). In this case either parent was a proper person to have custody. There was no evidence that visitation with the mother would adversely affect the welfare of the children. Therefore we affirm the award of custody but remand this matter to the trial court for entry of an order granting reasonable visitation rights for the mother.

AFFIRMED in part and REMANDED.

ORFINGER and COBB, JJ., concur.


author: HENDRY, Judge.

text:
    Gary McANNIS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-835.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Rehearing Denied Sept. 10, 1980.

      Melvin S. Black, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appeal is taken from the circuit court’s denial of a motion to suppress eleven ounces of cocaine, seized as evidence at the time of appellant’s arrest for possession and sale. We affirm.

Appellant conducted a drug sale in the privacy of his southwest Dade residence with two individuals who had travelled from Broward County to make the connection. At the culmination of the transaction, one of those individuals, one Bowers, pulled a firearm, declared himself to be a Broward policeman, and stated his intention to detain appellant (and others) until their arrest could be effected by the Dade County police (who had been notified of the impending transaction, and were waiting outside). Custody was transferred very shortly thereafter.

Appellant contends that his arrest by Lieutenant Bowers was illegal, and that the evidence should be suppressed as “fruit of the poisonous tree.” Specifically, he urges that the only justification for the arrest, which occurred outside the territorial authority of the Broward officer, is that the officer made a citizen’s arrest. However, he continues, since Lieutenant Bowers identified himself as a police officer at the time of the arrest, he acted “under color of office,” and not as a private citizen.

Alternatively, appellant states that the “arrest” by Bowers was not an arrest at all, but merely a detainment; the real arrest was made by the Dade County Public Safety Officers. That arrest was illegal, according to appellant, in that the officers failed to “knock and announce,” as required by § 901.19(1), Fla.Stat. (1978).

We need not reach the latter argument, since we find that the Broward officer made a legal citizen’s arrest.

Initially, we note that Lieutenant Bowers’ acts constituted an arrest.

Four elements must be satisfied in order to effect an arrest. There must be:

(1) A purpose or intention to effect an arrest under a real or pretended authority; (2) an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) a communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Melton v. State, 75 So.2d 291, 294 (Fla.1954) (citation omitted). State v. Parnell, 221 So.2d 129 (Fla.1969); Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).

Lieutenant Bowers indisputably “detained” appellant, and his intention to so detain him was undeniably communicated to appellant by the sight of a thirty-eight caliber hole in the business end of Lieutenant Bowers’ pistol. Apparently, appellant understood Lieutenant Bowers’ request that he remain; certainly, he knew that he was not free to leave.

Although the language in the Florida caselaw generally requires an intention to effect an “arrest,” the fact that Lieutenant Bowers’ avowed intention was to “detain” rather than “arrest,” is beside the point. As was said, in the context of a Fourth Amendment claim:

If there is significant interference with a defendant’s liberty, the fact that the police did not intend to make a formal arrest or did not think that their actions constituted an arrest is irrelevant .

United States v. Jones, 352 F.Supp. 369 (S.D.Ga.1972), aff’d 481 F.2d 1402 (5th Cir. 1973).

In State v. Shipman, 370 So.2d 1195 (Fla. 4th DCA 1979), undercover Fort Lauderdale police officer Puleo set up a large marijuana purchase, to take place at a residence in Pompano Beach (which was, of course, outside of his territorial jurisdiction). As the exchange was taking place, the vendors spotted Puleo’s Broward police backup contingent waiting outside, and they fled. Pu-leo captured one and turned him over to the Broward police, who had rounded up the others. Although Broward officer Lillard ultimately informed the suspects that they were under arrest, our sister court sustained the trial court ruling that Puleo had effected the arrest by “containing” the suspects, and identifying those whom he wanted arrested.

Once it is seen that Lieutenant Bowers arrested appellant, it is clear that he did so as a citizen, rather than as a Broward police officer. Although his actions could not be termed those of a private citizen if executed “under color of office,” that term

refers to a law enforcement officer actually holding himself out as a police officer, either by wearing his uniform or in some other manner openly asserting his official position, in order to observe the unlawful activity involved or the contraband seized. Here, as in [State v.] Crum [, 323 So.2d 673 (Fla. 3d DCA 1975)], the police officer acted at all times as a private citizen (i. e., an undercover agent). Prior to the arrests he never disclosed his official identity to the participants in the transaction.

State v. Shipman, supra, 370 So.2d at 1196-97. Cf., Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962).

The judgment and sentence appealed are affirmed.

Affirmed.


text:
    Victor Manuel RIVERA, Gator Freightways and Transport Insurance Company, Appellants, v. Marilyn WHITE and John White, Appellees.
    No. 79-1849.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Rehearing Denied Sept. 10, 1980.
    Marlow, Shofi, Ortmeyer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellants.
    Franklin, Entin, Kimler & Marks, North Miami Beach, Vogler & Postman, Miami, for appellees.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order granting a new trial, which is under review by this appeal, is affirmed upon a holding that: (a) the trial court did not act unreasonably or arbitrarily and, therefore, did not abuse its discretion in granting a new trial herein based on the rule stated in Cloud v. Fallis, 110 So.2d 669 (Fla.1959), because on this record it was entitled, although not compelled, to conclude, as it did, from its uniquely superior vantage point that the jury verdict herein was against the manifest weight of the evidence in that the evidence established with considerable force, although not without contradiction, that the defendant Victor Rivera “ran a red and/or malfunctioning [traffic] light” under circumstances in which a reasonable man would not have done so and was, therefore, “guilty of some negligence which was a legal cause of [plaintiffs’ damages,” which conclusion necessarily means, in our view, that the jury was misled as to the force and credibility of the evidence, Cloud v. Fallis, 110 So.2d at 673; see Christiana v. White, 346 So.2d 1036 (Fla. 4th DCA 1977), and (b) this result is not changed by the fact that the jury’s verdict was supported by substantial, competent evidence as an order granting a motion for new trial is not measured on appeal by whether the jury verdict is supported by such evidence, but instead is measured by whether the trial court abused its discretion in granting a new trial, which abuse of discretion we are unable to find in this case. Wackenhut Corp. v. Canty, 359 So.2d 430, 432-433 (Fla.1978). We also find no merit to the cross-appeal in this cause.

Affirmed.


text:
    Mitchell A. YELEN, Appellant, v. CINDY’S, INC., a Foreign Corporation, Appellee.
    No. 79-2294.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Rehearing Denied Sept. 8, 1980.
    Javits & Karp and David A. Karp, Miami, for appellant.
    Musselman, Welsh & Korthals and John L. Korthals, Pompano Beach, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant, acting as trustee for a group of investors, entered into a franchise agreement with appellee. Appellant paid appel-lee $10,000.00 as a franchise fee pursuant to the agreement.

A few months after the agreement was entered into, appellant and his group sought to rescind the franchise agreement for alleged violations of the agreement by appel-lee. Appellant demanded the return of the $10,000.00 franchise fee plus $2,718.00 for damages and expenses. Appellee refused to pay the amount claimed, but agreed to pay $6,000.00 in full settlement of the controversy. Appellee took the position for purposes of settlement that the maximum amount returnable, under the franchise agreement, would be $6,000.00.

Appellee sent appellant a check in the sum of $6,000.00 together with a letter stating, in pertinent part:

The enclosed check is being tendered to you in full satisfaction of the current controversy existing between you and Cindy’s in accordance with the terms of the enclosed mutual release. Your acceptance and depositing of this check shall constitute your and Mr. Karol’s acceptance of the terms of said release. If this is not acceptable, you should return the check to me.

The conditionally delivered check contained a restrictive endorsement. Appellant struck out the restrictive endorsement on the check and substituted the following language: “Received as partial agreement without prejudice, under protest, with full exclusive reservation of rights.”

After receiving payment of $6,000.00, appellant brought suit against appellee to collect the amount in dispute.

A summary final judgment was entered in favor of appellee on the grounds that there exists no genuine issue as to any material fact and the appellant was entitled to judgment as a matter of law on the issue of accord and satisfaction. This appeal followed.

It is appellant’s contention that the trial court erred in ruling that appellee was entitled, as a matter of law, to a summary judgment. We cannot agree with appellant’s contention and affirm. We hold that the circumstances and conditions under which appellant received and cashed the $6,000.00 check were such as to establish as a matter of law every element of appellee’s defense of compromise and settlement, thereby entitling appellee to a summary final judgment. Miller-Dunn Co. v. Green, 154 Fla. 72, 16 So.2d 637 (Fla.1944); United States Rubber Products, Inc. v. Clark, 145 Fla. 631, 200 So. 385 (1941); Bryan, Keefe & Co. v. Howell, 92 Fla. 295, 109 So. 593 (1926); Pino v. Lopez, 361 So.2d 192 (Fla. 3d DCA 1978); MeGehee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976). Cf., Hannah v. James A. Ryder Corp., 380 So.2d 507 (Fla. 3d DCA 1980); Miller v. Jung, 361 So.2d 788 (Fla. 2d DCA 1978).

Affirmed.

      . The “release” mentioned in and mailed with the letter, appeared as follows:
      In consideration of the payment of Six Thousand Dollars and 00/100 ($6,000.00) by Cindy’s, Inc. (Cindy’s) to Mitchell A. Yelen, as Trustee for Herbert Karol (Franchisee), the receipt of which is hereby acknowledged, and the execution of this agreement by said Franchisee, the undersigned do hereby release each other, and said parties’ agents, employees, officers and directors, from any and all claims, liability, damages, or causes of action, that they may now have against the other, including, but not limited to those arising from a certain Cindy’s Franchise Agreement numbered 90-112, between the parties hereto, which Agreement is hereby terminated.
      This agreement shall be binding upon the parties hereto, and their heirs, successors and assigns.


author: DANIEL S. PEARSON, Judge.

text:
    Steven PITOFSKY, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-2433.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.

      Brumer, Cohen, Logan & Kandell, P.A., and David H. Burstyn, Miami, for appellant.
    Daniels & Hicks and Mark Hicks, Miami, Richard E. Hardwick, Coral Gables, for ap-pellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Pitofsky appeals from a final judgment entered in favor of Liberty Mutual Insurance Company after a non-jury trial. He contends that the trial court erred in refusing to reform an insurance policy issued by Liberty Mutual so as to make Pitofsky’s mother, Arlene Schnell, a named or designated insured and thereby provide Pitofsky, a resident of Schnell’s household, with uninsured motorist coverage. We affirm upon a finding that Pitofsky failed to satisfy his burden to prove by clear and convincing evidence that by reason of fraud, inequitable conduct or mutual mistake, the policy did not express the actual contract intended by the parties. Allstate Insurance Company v. Vanater, 297 So.2d 293 (Fla.1974); Palilla v. St. Paul Fire & Marine Insurance Company, 322 So.2d 46 (Fla. 1st DCA 1975). Compare Napoli v. Liberty Mutual Insurance Company, 364 So.2d 878 (Fla.4th DCA 1978) (holding that clear and convincing proof is not required to prevent the entry of a directed verdict against a plaintiff seeking reformation).

Affirmed.


author: RYDER, Judge.

text:
    James Clair HILTY, Appellant, v. STATE of Florida, Appellee.
    No. 79-360.
    District Court of Appeal of Florida, Second District.
    July 16, 1980.
    Rehearing Denied Aug. 26, 1980.
    Jack O. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

James Clair Hilty appeals his conviction and sentence for the crime of grand theft of a motor vehicle under Section 812.014, Florida Statutes (1977). Hilty alleges that the trial court erred in refusing to include an instruction to the jury that appellant must have had the intent to permanently deprive the owner of the vehicle of his property.

Common law larceny was accomplished by “a felonious and fraudulent taking, and carrying away, by any person, of the mere personal goods of another, not from the person, nor out of his house, above the value of twelve pence.” 1 Hawkins, A Treatise of the Pleas of the Crown, Chapter 33, at 89 (1716). The fraudulent and felonious taking was redefined in early Florida decisions to require animus furandi. Long v. State, 11 Fla. 295 (1866). Animus furan-di is the intent to steal, or to feloniously deprive the owner permanently of his property. Black’s Law Dictionary at 114 (1968). The animus furandi intent necessary for larceny found similar expression in other jurisdictions. See e. g., United States v. Northway, 120 U.S. 327, 335, 75 S.Ct. 580, 582, 30 L.Ed. 664, 667 (1887). Later cases of both Florida and other states require specific intent to permanently deprive the owner of property. See Phoenix Assurance Company Ltd. of London v. Eppstein, 73 Fla. 991, 75 So. 537 (1917); Valley Mercantile Company v. St. Paul Fire & Marine Insurance Company, 49 Mont. 430, 143 P. 559 (1914). Some authorities required both animus furandi — an intent to steal — and specific intent to deprive the owner of his property permanently. See 32 Am.Jur. Larceny § 37 (1941). Common law larceny was generally viewed as requiring animus furandi, equating the term with intent to steal and with intent to deprive the owner of his property permanently. Lafave & Scott, Criminal Law, at 637 (1972).

Florida first passed a larceny statute in 1868, which existed without substantial change until 1951, providing that one who “commits larceny by stealing the property of another” shall be punished. See e. g., Section 811.01, Florida Statutes (1949); Chapter 2440, Laws of Florida (1892). The common law requirement of intent to deprive the owner permanently of property was added to this statute by the courts. See e. g., Groover v. State, 82 Fla. 427, 90 So. 473 (1921). In 1951, the legislature changed the statute to provide “a person who, with intent to deprive or defraud the true owner of his property . . . ” takes the property shall be punished. Section 811.021(1), Florida Statutes (1951). This statute controlled until 1974. Section 811.021, Florida Statutes (1973). Intent to permanently deprive the true owner of his property was still an element. Board of Regents v. Videon, 313 So.2d 433 (Fla.1st DC A 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla.2d DCA 1966).

In 1975, the legislature amended the statute to provide “a person who with intent unlawfully to deprive or defraud the true owner of his property . . . ” takes the property shall be punished. Section 812.-021, Florida Statutes (1975) (emphasis added).

In 1977, the legislature amended the statute to punish for theft:

812.014 Theft — (1) a person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
(a) To deprive the other person of a right to property or a benefit therefrom.
(b) To appropriate the property to his own use or to the use of any person not entitled thereto.

In State v. Allen, 362 So.2d 10 (Fla.1978), the supreme court held the 1977 version constitutional by interpreting it not to have eliminated specific criminal intent by omitting the word “unlawfully”. In a recent case holding the robbery statute constitutional, the supreme court similarly interposed a requirement of specific intent, affirming the definition of specific intent to be “intent to permanently deprive the owner of property.” Bell v. State, Case No. 53,440 (Fla. Mar. 6, 1980).

We hold likewise that “specific intent” as provided in the Allen case as an element of theft is intent to permanently deprive the owner of property. Thus, the lower court erred in not instructing the jury on this element of the crime.

We now turn our attention to a second area wherein we believe the trial court erred; that is, the rejection of a jury instruction on a lesser included offense of unauthorized temporary use of the motor vehicle. Temporary use is a necessarily lesser included offense of the theft of a motor vehicle as defined in Brown v. State, 206 So.2d 377 (Fla.1968), in that, like an attempt, a temporary use may be an embryonic permanent taking and hence it is necessarily included in the theft charge. Brown, supra, at pages 381-382.

We have carefully considered the remaining issues urged upon us by appellant and conclude that no further reversible error has been demonstrated, however, we REVERSE for the reasons given and REMAND for a new trial.

GRIMES, Acting C. J., and CAMPBELL, J., concur.


author: GRIMES, Judge.

text:
    Lee WILLIAMS, Appellant, v. FEATHER SOUND, INC., a Florida Corporation, Appellee.
    No. 79-1780.
    District Court of Appeal of Florida, Second District.
    July 16, 1980.
    Rehearing Denied Aug. 27, 1980.
    James Stewart and Eric S. Ruff of Law Offices of William Randolph Klein, Sarasota, for appellant.
    W. Robert Mann and Donald Paul Greiwe of Mann & Fay, Chartered, Bradenton, for appellee.
   GRIMES, Judge.

This appeal from á summary judgment in favor of appellee Feather Sound, Inc., involves an aspect of the doctrine of negligent hiring.

Lee Williams brought suit against Feather Sound for damages suffered as a result of an assault upon her by James Carter, one of Feather Sound’s employees. The depositions on file reflect that on April 5, 1978, Carter applied for a job at Feather Sound, a developer and manager of condominiums and residential home sites. In answering a newspaper advertisement, Carter initially applied for a laborer’s position involving outside maintenance duties such as mowing, weeding and edging. Daryl Rejko, who was a golf course superintendent for Feather Sound, interviewed Carter. Rejko had no instructions concerning how he should interview job applicants, but Feather Sound’s bookkeeping department had provided him with an application form. The form did not contain a request for information concerning the applicant’s past criminal or psychiatric treatment history. Rejko did not ask Carter whether he had been arrested, convicted or placed on probation, and Carter did not volunteer any information on this point. Rejko further testified that while he had authority to make long distance telephone calls to check references given by job applicants, he did not check any of the three references Carter gave him. Rejko also did not contact either of the two prior employers Carter listed on his job application form.

After performing outside labor for Feather Sound for a period of three weeks, Carter’s duties changed as a result of a departmental transfer. Thereafter, Carter was assigned work inside the condominium townhouse units under a new supervisor who was in charge of interior maintenance of townhouses. Carter began to wear a utility belt holding screwdrivers, a hammer, a knife and other related items. He had access to passkeys to the townhouses and permission to use them in order to gain entrance so as to make necessary repairs.

On April 27,1978, Carter appeared at the door of a condominium unit where Miss Williams was a guest and alone at the time. Upon hearing the doorbell ring, Miss Williams saw Carter standing outside with his utility belt on. He told her that he was to check on the apartment and make sure the screens were intact and the windows clean. Miss Williams admitted him to the apartment where he worked for about twenty minutes and then left without incident. Four days later, Carter went back to the same unit and, according to him, entered through a back door having found it ajar. Miss Williams claimed, however, that Carter said he had entered using a passkey. In any event, Carter assaulted Miss Williams by placing his hands upon her and forcing her to the floor. She claimed he put a knife to her throat, but he denied it.

Upon investigation, it was discovered that in August, 1971, the state had charged Carter with breaking and entering a residence in Bardenton, and assault to commit murder in the second degree. Carter pled guilty to these charges, and the court . placed him on seven years probation. Two and one-half months of that time he spent at G. Pierce Wood Memorial Hospital in Arcadia for psychiatric care. In early 1978, prior to April, Carter was arrested for “night prowling”. He also pled guilty to that charge and received a fine. There is no indication that Feather Sound had any knowledge of Carter’s criminal or psychiatric record.

In her appeal, Miss Williams does not suggest that Carter was acting within the scope of his employment at Feather Sound. Rather, she contends that Feather Sound was negligent in employing Carter as a workman having access to the townhouse units without first checking his background. She argues that had Feather Sound made such an inquiry, it would have become evident that Carter was a threat to the safety of the occupants of the townhouses.

Most jurisdictions, including Florida, recognize that independent of the doctrine of respondeat superior, an employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others. Many of these cases involve situations in which the employer was aware of the employee’s propensity for violence prior to the time that he committed the tortious assault. The more difficult question, which this ease presents, is what, if any, responsibility does the employer have to try to learn pertinent facts concerning his employee’s character. Some courts hold the employer chargeable with the knowledge that he could have obtained upon reasonable investigation, while others seem to hold that an employer is only responsible for his actual prior knowledge of the employee’s propensity for violence. The latter view appears to put a premium upon failing to make any inquiry whatsoever.

The rule in Florida is not altogether clear. In one case, the supreme court reversed the dismissal of a complaint which alleged that an apartment house owner was liable for an assault by his caretaker upon one of the occupants because of “knowingly keeping a dangerous servant on the premises which defendant knew or should have known was dangerous and incompetent and liable to do harm to the tenants.” Yet, a few months later, in exonerating a common carrier from liability for an assault by one of its employees while he was in the plaintiff’s house for the purpose of moving household goods, the court observed that this was “not a case where the corporation knew that employee was a dangerous person or was chargeable with notice or knowledge of any fact that he was a dangerous person and might attempt to commit such an assault.”

We think that in analyzing the employer’s responsibility to check out an applicant’s background, it is necessary to consider the type of work to be done by the prospective employee. In this case, when Rejko hired Carter to do outside work on the grounds of Feather Sound, during which he would have only incidental contact with the tenants, we cannot see how Rejko had any obligation on behalf of his company to make an independent inquiry concerning Carter’s past if he did not want to. However, in view of the fact that Carter had only been employed for three weeks, we believe that Feather Sound had a duty to make a reasonable inquiry about his background before transferring him to inside work and giving him access to the townhouse passkeys. If an employer wishes to give an employee the indicia of authority to enter into the living quarters of others, it has the responsibility of first making some inquiry with respect to whether it is safe to do so. Feather Sound did not carry out this responsibility. It made no effort to contact prior employers, and it did not seek advice from Carter’s references. Therefore, the court should not have granted a summary judgment in its favor.

When this case returns for trial, it will first be necessary to determine what kind of inquiry about Carter would have been reasonable under the circumstances and what information Feather Sound would likely have obtained had it made such an inquiry. Evidence bearing upon the difficulty or cost of obtaining such information will be relevant. Then, the ultimate question of liability to be decided will be whether it was reasonable for Feather Sound to permit Carter to perform his inside job in light of the information about him which Feather Sound should have known. Pertinent to this consideration is the fact that there are many persons in Florida with prior criminal records who are now good citizens. To say that an employer can never hire a person with a criminal record at the risk of being held liable for his tortious assault flies in the face of the premise that society must make a reasonable effort to rehabilitate those who have gone astray. At this point, we hold only that when Feather Sound permitted Carter to have access to the townhouses, Feather Sound was chargeable with such information concerning his background as it could have obtained upon reasonable inquiry.

REVERSED.

SCHEB, C. J., and CAMPBELL, J., concur.

      . Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla. 2d DCA 1979); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

      . Annot:, 34 A.L.R.2d 372, 390 (1954).

      . E. g., Svacek v. Shelley, 359 P.2d 127 (Alaska 1961); Freeman v. Bell, 366 So.2d 197 (La.App.1978).

      . E. g., Hipp v. Hospital Auth. of Marietta, 104 Ga.App. 174, 121 S.E.2d 273 (1961); Estate of Arrington v. Fields, 578 S.W.2d 173 (Tex.Civ. App.1979).

      . E. g., Bradley v. Stevens, 329 Mich. 556, 46 N.W.2d 382 (1951); Stevens v. Lankard, 31 A.D.2d 602, 297 N.Y.S.2d 686 (1968).

      . Mallory v. O’Neil, 69 So.2d 313, 315 (Fla.1954).

      . Riddle v. Aero Mayflower Transit Co., 73 So.2d 71, 71 (Fla.1954).

      .On the other hand, we reject Miss Williams’ contention that, as a matter of law, Feather Sound had to check with law enforcement agencies about Carter’s criminal record. While this may have been prudent, we think the better rule is stated in Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978), in which the Maryland court said;
      [T]he majority of courts flatly reject the contention of the plaintiff in the present case, namely that where an employee is to regularly deal with the public, an inquiry into a possible criminal record is required. On the contrary, the cases hold if the employer makes adequate inquiry or otherwise has a sufficient basis to rely on the employee, there is no need to inquire about a possible criminal record.
      395 A.2d at 484.

      . Of course, if there were nothing suspect in Carter’s background, we would affirm the summary judgment in spite of Feather Sound’s failure to make inquiry.