text:
    WOODMERE NORTH INVESTMENT FUND LIMITED, Appellant, v. GUARDIAN MORTGAGE INVESTORS, a Massachusetts business trust et al., Appellees.
    No. 79-2142.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 23, 1981.
    Dennis G. King, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, Miami, Smith, Hulsey, Schwalbe & Nichols and Stephen D. Busey, Jacksonville, for appellees.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

A partnership acting as a real estate developer sued its construction lender for breach of a commitment to lend funds. The first action resulted in a hung jury, and a mistrial was declared. On retrial of the issues, a verdict was had for the defendant, and appeal is taken from the judgment entered thereon. We affirm.

The parties were mutually involved in the construction of an apartment complex in Jacksonville. Appellant is a limited partnership consisting of twenty-five limited partners, and two general partners performing the actual construction, and the administration of the enterprise.

The original construction loan of $3.2 million was drawn down before the project was completed, and to avoid a foreclosure undesirable to both parties, they agreed that appellee lender would provide an additional $850,000 to finish. Toward that end, appel-lee issued a written commitment, which appellant accepted, spelling out the terms under which the additional funds were to be made available. The commitment letter specified that the $850,000 figure represented the projected costs to completion; it required an independent verification of such costs, and included the somewhat ambiguous proviso that “[a]ny substantial deviation from these estimates must be approved by [appellee].” Thus, the testimony of one of appellee’s corporate officers, that “[t]he amount of $850,000 was the number that was agreed upon and developed by the borrower ... as the amount of money that was going to be necessary to complete the improvements and pay off existing debts of the borrower ...,” as well as the language of the commitment letter itself, amply bear out appellee’s contention that the commitment was conditioned upon appellant’s ability to complete the project with the additional funds: as expressed by appellee’s counsel, while appellee was willing to see the project through, it had no desire to “throw good money after bad.”

During a title check made shortly before the scheduled disbursement of the additional funds, appellee discovered the existence of a mechanic’s lien filed against the property, representing the indebtedness of one firm to another in the chain of sub-materi-almen, in the approximate amount of $125,-000. Since the existence of the lien was not envisioned by appellee at the time it extended its commitment (and appellant may not have known of its existence either), appellee informed appellant borrower that either the lien would have to be released or expunged, or the lienor would have to inform appellee that the debt was no longer owed. Appellant apparently made no effort to comply with those terms. Over a month later, construction having stopped, without action by appellant to remedy the problem regarding the lien, appellee foreclosed, and purchased the property at the foreclosure sale. When it became apparent that foreclosure was imminent, appellant' brought the action in the circuit court, the result of which it now appeals.

Appellant submitted to the jury that ap-pellee was required by the commitment to remove all liens, and thus, that the continued existence of the sub-materialman’s lien did not justify appellee’s non-performance of the commitment letter. By reference to the letter itself, and after hearing testimony on the issue, the jury reached the conclusion that appellant’s argument was without merit. We are not at liberty to disturb their conclusion.

With regard to appellant’s claim that it was prejudiced by admission into evidence of a final judgment in a related proceeding, we find that error, if committed, was harmless, because the evidence was cumulative. Therefore, we affirm.

Affirmed.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Gertrude LIEBERMAN, Appellant, v. Norman SILVERSTEIN and Estelle Merbaum, as Personal Representative of the Estate of the late Sadie Silverstein Miller, Appellees.
    No. 80-788.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 13, 1981.
    Kwitney, Kroop & Scheinberg and Bruce J. Scheinberg, Miami Beach, for appellant.
    David Theodore Berg and Michael L. Mann, Miami, for appellees.
    Before SCHWARTZ, NESBITT and PEARSON, JJ.
   SCHWARTZ, Judge.

The plaintiff below, Gertrude Miller Lieberman, seeks review of an adverse final judgment rendered after a non-jury trial. In issue were the proceeds of two savings accounts in New York institutions which had been established with his own funds by the plaintiff’s father, Max Miller, in their joint names. Subsequently, Mr. Miller moved to Miami Beach and married his second wife, Sadie Silverstein Miller, on December 12, 1971. In February, 1972, at his request, Mrs. Lieberman forwarded the passbooks to the accounts to her father. With Sadie’s knowledge, Mr. Miller promptly drew out all the funds and put them into a certificate of deposit in the names of Max and Sadie Miller. Mrs. Miller succeeded to the certificate when Max died on March 12, 1973. Mrs. Lieberman made no claim to any portion of the accounts against her father, his estate, or otherwise, until this action was filed against Mrs. Miller in September, 1974. She then contended that, under the law of New York, she was the vested owner of a “moiety,” that is, one-half, of the jointly-held accounts, for the reimbursement of which Sadie was liable as a knowing recipient of the proceeds. N.Y. Banking Law, § 675 (McKinney); Manta v. Manta, 56 A.D.2d 624, 391 N.Y.S.2d 680 (1977); Schwartz v. Schwartz, 82 Misc.2d 51, 365 N.Y.S.2d 589 (Sup.Ct.1975). We affirm the judgment under review on the ground that the circumstances which have been outlined support the conclusion that the plaintiff impliedly consented to or ratified Mr. Miller’s withdrawal of the entire contents of the accounts. Kleinberg v. Heller, 38 N.Y.2d 836, 382 N.Y.S.2d 49, 345 N.E.2d 592, 595-96 (1976) (concurring opinion of Fuchsberg, J.); In re Leisner’s Estate, 25 A.D.2d 844, 268 N.Y.S.2d 375 (1966), aff’d, 19 N.Y.2d 869, 280 N.Y.S.2d 671, 227 N.E.2d 593 (1967); Estate of Kessler, 55 Misc.2d 17, 284 N.Y.S.2d 288 (1967), aff’d, 35 A.D.2d 710, 314 N.Y.S.2d 898 (1970), aff’d, 30 N.Y.2d 821, 334 N.Y.S.2d 910, 286 N.E.2d 283 (1972).

Affirmed.

      . During the pendency of this action, Mrs. Miller also died. The representatives of her estate are the present appellees.

      . It is clear that New York law governs the rights of the parties to a jointly held bank account located there and therefore controls the issues involved in this case. Seng v. Corns, 58 So.2d 686 (Fla.1952); Annot., Joint Bank Deposits — Governing Law, 25 A.L.R.2d 1240 (1952).

      . At 382 N.Y.S.2d 53, 345 N.E.2d 596, Judge Fuchsberg’s opinion states:
      Other factors which, absent more direct proof, appear to be among those available for consideration in such cases to determine whether the excess withdrawer’s burden of proving consent has been met, are the duration, nature and closeness of the business, social or familial relationship between the tenants; the presence or absence of a habit of freely commingling their funds; significant revelations, if any, in the tenants’ testamentary dispositions; the generosity, or lack of it, manifested by the survivor in his other inter vivos dealings with the decedent; the amounts involved; the pattern of withdrawals; their purpose and timing; the age and physical and mental condition of each at the time of the withdrawal; the source of the funds; the circumstances in which possession of the bankbook came into the hands of the survivor at the time of the withdrawal; decedent’s ignorance or knowledge of the withdrawal and, if the latter, the length of time during which it existed; the protest or lack of protest against the withdrawal; the efforts, if any, to effect its return, considering of course, the absence or presence of opportunity to do so; and, highly important, whether the survivor was the donor, [e. s.]
      We have provided the emphasis upon those factors which are pertinent to this case.


author: PER CURIAM.

text:
    Jose DEL PUERTO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2229.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Jose Del Puerto, in pro. per.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: COBB, Judge.

text:
    STATE ex rel. Joseph T. GARLOVSKY, Appellant, v. The Honorable E. L. EASTMOORE, Circuit Judge, Appellee.
    No. 79-289.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 13, 1981.
    Dan R. Warren of Judge & Warren, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

During the course of a criminal prosecution in the circuit court, the appellant, Joseph Garlovsky, who was defense counsel, was adjudicated guilty of direct criminal contempt pursuant to Rule 3.830, Florida Rules of Criminal Procedure, by the trial judge, the Honorable E. L. Eastmoore. The appellant was fined $100.00 or, in default thereof, he was to be confined in the county jail for 24 hours. Execution of sentence was stayed pending disposition of this timely appeal.

Garlovsky was representing one Marian McCrae in two separate trials in Putnam County. McCrae had been charged by information in Case No. 327 and in Case No. 328 with selling cannabis to an undercover agent, Harold Lee. In a pre-trial deposition held on September 6, 1979, Lee stated that he had never sworn under oath before any state attorney, assistant state attorney, or notary public concerning the events alleged in the two pending informations against McCrae prior to the filing of said informa-tions on May 14, 1979.

On September 7, 1979, the state filed an amended information based on the then sworn testimony of Lee given at the deposition, which was attended by the assistant state attorney prosecuting the case. The amended information was identical to the first information which had been filed in May. At a hearing held immediately prior to trial on September 10, 1979, in Case No. 327, the trial court denied the defense motion to dismiss, holding that the defect had been cured and that there was no prejudice to the defense which would necessitate a continuance.

During the trial of Case No. 327 on September 10, 1979, attorney Garlovsky, in cross-examination of Lee, inquired as to whether he had appeared in person before the assistant state attorney and sworn to the charges against McCrae. The state’s objection of irrelevancy was sustained by the court. Garlovsky attempted to make a further statement after the court’s ruling, and got as far as saying, “Your Honor, I would introduce — ” when he was cut off by the court’s admonition that the objection had been sustained. Garlovsky, in the face of the prior rulings, persisted. The next question was: “Did you ever appear before any notary ... and swear to the facts that you are testifying here today?” The state again objected, and the objection again was sustained.

At the close of the state’s evidence in Case No. 327, defense counsel again raised the point regarding the failure of the state to have Lee’s sworn testimony prior to filing of the original information, and again received an adverse ruling. Thereafter, the defendant was convicted.

On September 26, 1979, a pre-trial hearing was held in Case No. 328. This followed the filing of an amended information in the case on September 21, setting forth the identical charge as in the original information filed in May. At the hearing, attorney Garlovsky moved ore tenus to dismiss on the same grounds he had pursued in Case No. 327, relating to the state’s belated compliance with Rule 3.140(g), Florida Rules of Criminal Procedure. It was Gar-lovsky’s contention that the originally defective information could not be cured by amendment because of constitutional proscriptions. The trial court advised defense counsel: “I’ll treat your motion as filed and deny it just as I did in the other case. The Court does not agree with your view.”

Case No. 328 proceeded to trial on October 10, 1979. After completion of jury selection, defense counsel renewed his pre-trial motion to dismiss based on the allegedly defective information, and the trial court against denied the motion. At this point, a portentous colloquy ensued between the attorney and the trial judge:

MR. GARLOVSKY: Thank you, Your Honor. I have one final statement, and that is our personal relationship.
In the last trial I stated that I felt that — well, I moved to disqualify, and I suggest at this time not to waive that, that you disqualify yourself in this case.
And I feel, Your Honor, that maybe our relationship has reached a point — you know, you have told me on many times I’ve bored you and bored the jury. You called me aside at side-bar when I feel I’m only making legitimate objections. I was not interfering with the processes of the jury or the Court. That you chastise me on the form of my questions where there were no objections.
THE COURT: I did what, sir?
MR. GARLOVSKY: You chastised me.
THE COURT: I did not chastise you, sir. I directed you to frame your questions in a certain manner. There is a great deal of difference, Mr. Garlovsky, between that and chastisement.
MR. GARLOVSKY: Judge, I feel because you’re a stern task-master in your own courtroom, that the stern manner—
THE COURT: That adjective is yours, not mine.
MR. GARLOVSKY: Okay. Well, with the manner in which you, I would say, conduct the trial in this cause, that you have a manner in speaking to me that is different than speaking to the State Attorney.
I may have offended you, and I feel sorry about that because I feel it’s an honor to come to Putnam County and try cases here. But I feel that our—
THE COURT: Mr. Garlovsky, let me hasten to assure you, sir, that this Court welcomes you to come to Putnam County or any other courtroom over which I preside as a jurist.
You have not offended me in that it would lead to any prejudice towards your client.
I will assure you I will not do or say anything in the presence of the jury that will do anything but engender a sense of fairness in the trial.
Now, you do have, however, a rather unfortunate tendency which is that even after the Court has ruled you are inclined to want to speak to the same subject.
You’re inclined not to phrase your questions in the way that the Court directs.
In those events, I assure you, sir, I will speak sharply to you because you will follow the directives of this Court in the conduct of these proceedings.
Once the Judge has ruled, whether it be a slow ruling or whether it be a quick ruling, then there is absolutely no point in arguing to the Court or asking the Court to recede from its ruling.
But all attorneys, as officers of the Court, are bound to follow the directives of the Court in the conduct of the proceedings.
If the Judge is wrong, there is an Appellate Court to tell him so, and they have on occasion told me that I was wrong.
But the procedure that we use in running this courtroom is the procedure that we normally use, it’s the procedure we’ll use in this case, and as far as I know will be the procedure we’ll continue to use.
You’re welcome to come here. You have not offended me. If you do, you’ll find out about it.
Your motion or suggestion for disqualification is denied.

The next day, Garlovsky did offend the trial judge and did find out about it. On cross-examination of Lee, he again attempted to elicit the testimony that Lee had not appeared before the state attorney to give sworn testimony, and the state’s objection again was sustained. On this occasion, however, Garlovsky made a vocal objection to the trial court’s ruling in the presence of the jury. The trial judge immediately cleared the courtroom and this exchange occurred:

THE COURT: Mr. Garlovsky, for what purpose did you ask that question, sir?
MR. GARLOVSKY: Okay, I will tell your for what purpose, Your Honor.
THE COURT: I expect you to tell me for what purpose, sir, because I am just before holding you in contempt of this Court on willful and blatant disregard of this Court’s directives and this Court’s rulings.
MR. GARLOVSKY: Okay. Your Honor, I do not feel there was any directive or ruling—
THE COURT: Answer my question—
MR. GARLOVSKY: Okay.
THE COURT: —Mr. Garlovsky—
MR. GARLOVSKY: Your Honor—
THE COURT: —that, and no more.
MR. GARLOVSKY: Okay.
THE COURT: Why did you ask—
MR. GARLOVSKY: Okay.
THE COURT: —that question?
Now wait until I get through, sir, and then you talk. The reporter is only going to take down one voice at a time.
MR. GARLOVSKY: Yes.
THE COURT: You will answer my question, sir, and follow my directive.
Now why did you ask that question?
MR. GARLOVSKY: Because Your Honor will submit this Information to the jury, as you did before, and this Information will be for the jury to read; and on the bottom of this line it says “personally appeared before me, Donald Holmes, Assistant State Attorney for the Seventh Judicial Circuit — ”
THE COURT: I’m familiar with what it says.
MR. GARLOVSKY: Okay. And it says—
THE COURT: And the Court takes judicial notice of the records of this Court.
MR. GARLOVSKY: And I—
THE COURT: Mr. Garlovsky, on a previous occasion in this proceeding you established the fact that no verification by personal appearance of this witness had been made by the State Attorney at the time of the filing of the original Information.
Thereafter, you moved this Court in that regard. The state filed an amended Information, the Court ruled on that question. It is a legal issue; it is not a factual issue for the jury to determine. And it is unethical for an attorney to present such a matter which is not within the province of the jury.
This Court therefore adjudges you in contempt of this Court.
It is the sentence of the law that you pay a fine of one hundred dollars to the Clerk of this Court for your such contempt; and in default thereof, you will be confined in the County Jail of Putnam County for and during the period of one day of twenty-four hours.
Now, the Court admonishes you, Mr. Garlovsky, that you will not in anywise do or perform any act in your advocacy of your client’s rights that will violate the directives of this Court.
Now do you understand what I’m saying?
MR. GARLOVSKY: I understand what you’ve just performed for did to me here, Your Honor; but I would like to respond and make a request.
THE COURT: Make your request.
MR. GARLOVSKY: I request if this Court wishes to hold me in contempt that a hearing be held by another Judge, as to whether—
THE COURT: A criminal contempt is handled by the Judge in whose presence it is done.
Your request is denied.
MR. GARLOVSKY: Okay. Again, I felt it was my duty, Your Honor, that this jury should know that this witness had never appeared before the State Attorney—
THE COURT: Is that a province of the jury? No, it is not, sir. That is the reason that this Court has just adjudged you in willful direct contempt of this Court’s directives. You will not do that again.
Now do you understand that?
MR. GARLOVSKY: Yes. I — I will not raise this issue again in this trial. I do not feel that the Court has ever given me any directive about questioning a witness about appearance before the prosecutor by which he swore to the facts of this Information.
THE COURT: That matter has been adjudicated by this Court on two different occasions in this proceeding.
MR. GARLOVSKY: Okay. And again I felt because the Court submits this Information to the jury when they go in to deliberate in this case, that I felt they should know the facts behind how this witness appears.
THE COURT: It would still not be a matter within the province of the jury.
And counsel knows that the Code of Professional Responsibility dictates that you do not give a jury information that is not within the province of the jury to determine in a case.
Now, Mr. Garlovsky, you should know better than that, sir. And I expect you to know better in the future; and I expect you to conform to the Canons of professional responsibility.
MR. GARLOVSKY: Okay. Your—
THE COURT: All right. Mr.—
MR. GARLOVSKY: Your Honor, at this time I would request a mistrial and that the trial cease at this time, that I don’t feel — again, I’ve asked you — that our differences are interfering with my representation; and I feel that she cannot receive a fair trial, and I would request a mistrial now that you have held me in contempt for which I felt was a legitimate question concerning an Information.
THE COURT: Your motion for a mistrial is denied. The trial will go forward.
Bring the jury back in.

The following day, October 12, the trial judge reduced the contempt judgment and sentence to writing in conformity with the oral pronouncement. See Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980); Byrd v. State, 388 So.2d 1362 (Fla. 5th DCA 1980); Towson v. State, 382 So.2d 870 (Fla. 5th DCA 1980). The written order reads:

JUDGMENT AND SENTENCE
You, JOSEPH T. GARLOVSKY, for your wilful contempt in the courtroom in the course of a trial proceeding wherein you were representing one, MARIAN McCRAE, Case No. 79-328-CF, a proceeding before this Court, and your actions in connection therewith, all of which was committed in the presence of the Judge in open court, are hereby adjudged in criminal contempt of this Court. This contempt arose by you wilfully and deliberately seeking to elicit testimony from a witness, Harold Lee, which testimony would have placed an issue before the jury which would have been improper and which would, in all probability, have led to a mis-trial of the proceedings, which testimony was in fact known to you to be improper and which concerned a matter upon which the Court had ruled as a matter of law on two prior occasions; which testimony sought to be elicited, concerned factual information directed to the sufficiency of the information, a legal matter to be determined by the Court and clearly not a matter within the province of the jury.
It is the sentence of the law and such is the judgment of this Court that you, JOSEPH GARLOVSKY, shall pay a fine of $100.00 to the Board of County Commissioners of Putnam County, Florida, and, in default thereof, you shall be confined in the County Jail of Putnam County, Florida, under the supervision of the Board of County Commissioners of said County for and during the period of twenty-four (24) hours.
DONE AND ORDERED in open Court at Palatka, Putnam County, Florida, this 12th day of October, 1979, nunc pro tunc October 11, 1979.
/s/ E. L. Eastmoore
CIRCUIT JUDGE

Issues I and II raised by the eontemnee-appellant Garlovsky on appeal concern the procedural requirements of Rule 3.830: (1) Did the trial court’s order sufficiently recite the facts upon which the adjudication was based, and (2) Was Garlovsky afforded the opportunity, prior to adjudication, to show cause why he should not be held in contempt and to offer evidence of excusing or mitigating circumstances?

The appellant’s first point is without merit. The recited facts are clear and specific as to the basis upon which the trial judge relied for the adjudication of contempt; the deliberate attempt by counsel to place before the jury the testimony of Lee in regard to the legal issue of sufficiency of the information, a matter which the trial judge previously had determined adversely to the defense position, and which clearly was not a matter for jury consideration. Although the order does not refer to it, the trial judge previously had noted counsel’s “unfortunate tendency” to pursue a subject after the trial court had ruled upon it. The facts herein are distinguishable from the case of Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978), relied upon by the appellant, in that the order of contempt in that case alluded to “unjudicious, unethical and intemperate conduct” without specifically identifying that conduct. The appellate court found that order failed to “evidence particular events” to which the characterizations could reasonably apply. The particular event is clearly defined in the instant case. Moreover, the record clearly illustrates the factual grounds upon which the order of contempt is based. See Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975).

The appellant also argues that the trial court did not explicitly direct him in advance of the question to Lee that provoked the contempt citation not to ask the question. In support of this contention, appellant cites Gilmour v. State, 358 So.2d 63 (Fla. 3d DCA 1978); and Olds v. State, 302 So.2d 787 (Fla. 4th DCA 1974), cert. denied, 312 So.2d 743 (Fla.1975).

These cases are distinguishable from the facts of the instant case. In Gilmour, the defendant’s attorney was cited for contempt for calling the jury’s attention, during closing arguments, to the fact that the co-defendant had not testified. This comment was not inconsistent with any prior court ruling, and there was federal case authority supporting such a comment. These facts are clearly distinguishable from the instant case, where the trial court had repeatedly sustained objections to the attempt by defense counsel to present a legal issue to the trial jury and there was no reasonably arguable or tenable legal basis for appellant’s conduct.

In Olds, the trial court erroneously cited a public defender for contempt for asking questions of a state witness, formerly represented by the public defender, relating to subject matter that was not privileged because it had been either divulged by the witness to third parties or was a matter of public record.

We do not believe that an attorney must be specifically admonished, in explicit, kindergarten terms, that he is to follow the trial court’s rule. He is expected to know that if he is a lawyer. He should also know, without being told, that persistence in disregarding a trial court’s rulings, in an effort to place improper matters before the jury, can lead to a contempt citation. Kleinfeld v. State, 270 So.2d 22 (Fla. 3d DCA 1972), cert. denied, 275 So.2d 251 (Fla.1973); Saunders v. State.

The second issue raised on appeal is more troublesome. The trial judge, prior to the oral adjudication of contempt, did not follow the formal format implicit in Rule 3.830. Although the trial judge inquired of Garlovsky as to his purpose in asking the question and warned him that an adjudication of contempt was imminent because of the “blatant disregard of ... this Court’s rulings,” it appears that Garlovsky was still responding to the question at the time the court interceded and announced the adjudication. The court did listen to a further request from Garlovsky (that a different judge hold a hearing on the contempt matter) and properly denied that request. Gar-lovsky then stated that he felt that it was his duty to apprise the jury of the witness’ failure to appear before the state attorney (before the original information was filed), but this expression came after judgment and sentence. In and of itself, it does not constitute an excusing or mitigating circumstance, but little, if any, opportunity was afforded Garlovsky to offer more.

In Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978), a trial attorney was held in contempt and sentenced without proper al-locution in accordance with Rule 3.830. The court noted in that case:

This rule is frequently violated we would suppose due to the circumstances and atmosphere which frequently prevail in direct contempt situations. Often the trial judge has been provoked ... by other conduct which tries his patience. But patience is one of the characteristics which go to make up a good judicial temperament. Adjudicating a person, and particularly a lawyer, in contempt is a serious matter to be approached judiciously. No doubt that is why the rule requires that the person be afforded an opportunity to explain his conduct before being adjudicated guilty.
Keezel may or not have been guilty of contempt, but the adjudication here was premature and must be reversed so that Keezel will be afforded the opportunities granted by the rule to explain his conduct.

358 So.2d at 248.

In like manner, we believe that Gar-lovsky was prematurely adjudicated and sentenced under the rule. Prior to the adjudication of guilt and the imposition of sentence, the defendant must be informed of the accusation against him and afforded the opportunity to show cause why he should not be adjudged guilty and sentenced therefor. The opportunity to present evidence of excusing circumstances must precede the adjudication of guilt; the opportunity to present evidence of mitigating circumstances may be afforded at the same time but, at least, must precede the imposition of sentence.

The appellant’s third point requires consideration because, if he is correct, it would be dispositive of this case and require reversal without the necessity for a remand for further action by the trial court. The appellant argues that his acts at trial do not rise to that degree of conduct which the law recognizes as contemptuous. He contends that there was an unfortunate personal conflict between himself and the trial judge, but that such should not be the basis for a contempt order.

The definition of contempt of court has been succinctly set forth in the case of Krathen v. State, 310 So.2d 381 (Fla. 4th DCA 1975):

Contempt of court has been variously defined as “an offense against the authority or the dignity of a court or of a judicial officer when acting judicially,” Ex Parte Earman, 1923, 85 Fla. 297, 95 So. 755, 760, 31 A.L.R. 1226, or, “any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity”, Ex parte Crews, 1937, 127 Fla. 381, 173 So. 275, 279, or, conduct “such as tends to bring the administration of the law into disrespect and disregard” or which “interferes with or prejudices parties litigant or their witnesses during litigation”, 6 Fla. Jur., Contempt, § 2, or, as “disobedience to the Court, an opposing or a despising of the authority, justice or dignity thereof”, South Dade Farms, Inc. v. Peters, Fla.1956, 88 So.2d 891, 898.

310 So.2d at 383.

Trial judges are in the best position to evaluate trial conduct — not appellate judges reviewing a sterile and inanimate record far removed from the living and compelling realities of the trial bench. A willful disregard of prior court rulings can constitute a direct obstruction of the court. We cannot find that this record refutes such a finding by the trial court, which (contrary to the implicit suggestion of some cases) is clothed on appeal with a presumption of correctness. Accordingly, in accordance with the case of Keezel v. State, the adjudication and sentence for contempt imposed by the trial court are reversed, and this cause is remanded to the lower court in order to afford the contemnee, Joseph Gar-lovsky, formal and full opportunity to show cause why he should not be adjudged guilty of contempt, and the opportunity to present evidence of excusing and mitigating circumstances.

REVERSED and REMANDED.

FRANK D. UPCHURCH, J., and CO-WART, JJ., concur.

      . Rule 3.830 reads:
      A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

      . Said rule reads:
      An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.

      . See e. g., Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977).


author: LARRY G. SMITH, Judge.

text:
    Willie MOSS, Appellant, v. KELLER INDUSTRIES, INC., and U. S. Fire Insurance Company, Appellees.
    No. QQ-210.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 27, 1981.
    David H. Levin of Ser, De Cardenas, Levine, Busch & Allen, Miami, for appellant.
    H. Jack Miller of Miller & Hodges, Coral Gables, for appellees.
   LARRY G. SMITH, Judge.

This appeal by the claimant, Willie Moss, and the cross-appeal by the employer/carrier, presents several issues which we view primarily as factual disputes which we have resolved by concluding that the rulings of the Judge of Industrial Claims are supported by competent substantial evidence. We affirm as to these points, and we further affirm, finding no abuse of discretion, the Judge’s ruling allowing the employer/carrier, at the commencement of the initial hearing, to amend their pretrial stipulation filed just two weeks earlier.

The third point presented by the claimant-appellant, raising the issue of whether the Judge properly denied claimant’s attorney’s fees on that portion of the benefits received by the claimant which were “voluntarily” accepted by the employer/carrier, after the matter was set for hearing on appellant’s claims, merits discussion and requires reversal.

The claimant, a truckdriver, suffered head and neck injuries on February 3,1977, and was paid temporary total disability benefits. On July 13, 1977, Dr. Johns, the treating physician, reported to the employer/carrier that claimant was able to return to work, and that claimant had been advised to see him again in a month if his symptoms persisted. On September 1, 1977 the employer/carrier terminated compensation payments. On September 12,1977, Dr. Johns again examined claimant, reporting that claimant was “advised again” that he should be able to return to work “at any time,” and that claimant was advised to return several weeks after his return to work for discharge if doing well at that time.

On September 23, 1977, the claimant, through his attorney, requested a hearing on his claim, including the issue of his entitlement to permanent benefits. A notice of hearing was mailed on September 29, 1977, scheduling a hearing for January 19, 1978.

On October 17, 1977, claimant’s attorney had the claimant evaluated by Dr. Robert Gilbert, who reported that he felt claimant had reached maximum medical improvement, with a fifteen to thirty percent (15% to 30%) permanent partial disability of the body as a whole. The claimant returned to work on November 7, 1977, embarking on a long-distance trucking trip which was terminated on December 3, 1977, when the employer learned that the claimant’s driver’s license had been suspended, rendering him ineligible to drive. The claimant later testified that he experienced difficulty in driving the truck on this trip, experiencing more frequent headaches, together with soreness and stiffness in his leg, arms, neck and shoulder. He was scheduled for examination by Dr. Johns in December, 1977, but this appointment was cancelled by the doctor’s office and rescheduled for January 16, 1978.

At the commencement of the first hearing, on January 19,1978, the employer/carrier requested permission and was allowed to amend its pretrial stipulation dated January 4, 1978, in which it had contended maximum medical improvement was reached on September 1, 1977, by changing the maximum medical improvement date to “unknown.” The hearing proceeded but was not concluded at that time.

Dr. Johns, in the meantime, had examined the claimant on January 16, 1978, determined that the claimant had reached maximum medical improvement, and discharged him with a permanent partial disability rating of between twelve and fifteen percent of the body as a whole. The record does not reveal with clarity when the results of this examination and Dr. Johns’ rating were communicated to the employer/carrier. However, on January 31, 1978, the employer/carrier accepted a fifteen percent permanent partial disability and payment on that basis was commenced, effective from January 16, 1978, the date of Dr. Johns’ last examination. The second and final hearing on the merits was held on April 24, 1978, which resulted in an order finding that claimant was entitled to additional temporary total disability from September 1,1977, to September 12, 1977, temporary partial disability of twenty-five percent, based upon diminution of wage-earning capacity; and that the claimant reached maximum medical improvement on January 16, 1978, with twenty-five percent permanent partial disability based on wage-earning capacity loss.

A supplemental hearing on attorney’s fees was held on June 6, 1978, resulting in the award of $1,235.75. The Judge of Industrial Claims found that since the employer, through his carrier, voluntarily commenced payment of a rating of fifteen percent permanent partial disability within twenty-one days of the claimant’s maximum medical improvement date, attorney’s fees would be allowed claimant’s attorney based only on the amount of the award in excess of the fifteen percent voluntarily accepted.

As indicated above, the issue that engages our attention and requires discussion is the award of attorney’s fees. Claimant’s attorney was clearly entitled to attorney’s fees for recovery of the additional temporary total disability and temporary partial disability benefits for the claimant, which he received. However, claimant’s attorney contends that since his entitlement to fees was established based on recovery of temporary benefits, the payment of which was unsuccessfully resisted by the employer/carrier, it was error to deny recovery of attorney’s fees on the fifteen percent permanent disability benefits voluntarily paid by the carrier, notwithstanding the fact that acceptance of this rating was made and payments were commenced within twenty-one days of the claimant’s maximum medical improvement date.

Claimant’s brief on the attorney’s fees question cites Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970); Sharpe v. Robert E. Lee Painting, IRC Order 2-1258 (November 17, 1972); Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970); Osceola Petroleum Company et al v. Heard, IRC 2-3347 (February 13, 1978); and Ford v. Cunningham-Limp Company, 203 So.2d 326 (Fla.1967). Appellees’ brief cites no authority in support of the judge’s ruling, and contains no reference to or discussion of the cases cited by appellant. As a matter of fact, we find no citation of decisional authority whatever in appellees’ brief — not even in support of their cross-appeal.

We find that appellant’s basic premise— that once the employer/carrier improperly denies or terminates payment of benefits (even temporary benefits) it thereafter becomes liable for attorney’s fees on the award of permanent benefits to the claimant, even though such permanent benefits are voluntarily accepted and timely paid by the employer/carrier — can no longer be relied upon as valid. Although such a rule formerly existed, as most clearly enunciated in Ford v. Cunningham-Limp Co., supra, the court in International Paper Co. v. McKinney, 384 So.2d 645 (Fla.1980), specifically receded from Ford on this point. In International Paper, the court stated (at 646):

The basic question before the court is whether or not an employer, having initially denied compensation for temporary total benefits, is bound to pay an attorney’s fee on all subsequent benefits awarded to claimant, even when the subsequent benefits are paid voluntarily and timely.

The court then answered the basic question in the negative, holding (at 648):

An employer’s contest of a claim at the beginning of a case does not lock the employer into paying attorney’s fees on all subsequent benefits paid if the employer voluntarily and timely pays the additional benefits.

We are not certain, however, that the International Paper case completely resolves the problem here. In United States Steel v. Green, 353 So.2d 86 (Fla.1977), relied upon in the court’s International Paper decision, the employer contested but the claimant was awarded temporary total benefits after a hearing at which the Judge of Industrial Claims found that claimant had not yet reached maximum medical improvement. On review, the Industrial Relations Commission affirmed the claimant’s entitlement to benefits, but concluded that he had reached maximum medical improvement. It therefore reversed and remanded to the Judge of Industrial Claims to fix the date of maximum medical improvement and to award benefits accordingly. On remand, the Judge heard testimony only on attorney’s fees, fixed the date of maximum medical improvement, and found permanent total disability. He further awarded attorney’s fees of $13,000, although the attorney had done no additional work and had already been compensated by payment of $1,200 for his services in securing the temporary disability benefits. In reversing the Industrial Relations Commission’s decision, the court condemned the practice of computing fee awards as a percentage of the ultimate benefits awarded to the claimant, and held in part (id. at 88):

. .. although the code of professional responsibility recognizes that ‘results obtained’ may be taken into account, it was capricious to find that identical services might be worth $1,200 or $13,000 depending upon the mathematics of a workman’s compensation award....

It is clear that under United States Steel v. Green and International Paper Company v. McKinney, supra, the voluntary and timely payment of additional benefits by the employer/carrier, after unsuccessfully defending the payment of benefits in the earlier stages of the case, is not to be viewed as a financial bonanza for claimant’s attorneys. However, it also appears to us, as a corollary, that it is equally erroneous to impose a limitation upon claimant’s attorney’s fees solely on the basis of a mathematical computation, by the mere process of subtracting the voluntarily paid benefits from the total disability benefits ultimately awarded to the claimant. Compare ABC Liquors, Inc. v. Brinkley, IRC Order 2-3662 (January 22, 1979), and Jones Miami Beach Express v. Mula, IRC Order 2-3245 (October 3, 1977), denying attorney’s fees where there was a permanent disability award of 40%, on the 20% permanent disability voluntarily accepted by the employer/carrier, and Osceola Petroleum Company v. Heard, IRC Order 2-3347 (February 13,1978), reversing an award of $23,500 attorney’s fees, but allowing recovery of a reduced amount, based upon the empioyer/carrier’s filing of a notice to controvert three days after the injury, followed by acceptance of total disability within 21 days of the date of injury.

This Court has had occasion recently to rule on attorney’s fees in a workers’ compensation case, holding in St. Juste Meza-dieu v. T & R Store Fixtures et aL, 391 So.2d 252 (Fla. 1st DCA 1980), that the employer/carrier “cannot resist paying benefits, thereby forcing the issue to an unsuccessful hearing, and then claim afterwards that their remaining payments were voluntary,” citing Torres v. Eden Roc Hotel, supra.

Here, the employer/carrier obviously “forced” the claim for additional temporary total and temporary partial benefits to a hearing. Furthermore, in view of the empioyer/carrier’s inaction after receiving the notice of hearing claiming permanent partial disability, which would have been subject to a motion to dismiss as premature if, in fact, they were awaiting a medical report showing maximum medical improvement had been reached, the claim for permanent disability benefits could, in a sense, also be considered as “forced” to a hearing. In this connection, we note that although the pretrial stipulation was amended by the carrier at the commencement of the first hearing to show “MMI unknown” (see footnote (2), supra), there was no acceptance of permanent disability benefits until some 12 days after the commencement of the first hearing, although, as indicated above, the existence of permanent disability was confirmed by Dr. Johns’ examination, which took place three days prior to the first hearing. Therefore, even if it is considered that a hearing was not actually being “forced,” the employer/carrier certainly gave that impression; and in any event they acquiesced in the expenditure of time and effort by claimant’s attorney in preparing for and commencing the presentation of the claim at the hearing on January 19, 1978. As a practical matter, under the circumstances here, we see very little difference in the compensable time and effort required on the part of the attorney to recover the temporary benefits, plus the additional 10% permanent disability awarded the claimant, then would have been necessary even in the absence of any voluntary payment by the employer/carrier. It is obvious, of course, that any concession or admission that simplifies or shortens the litigation would be entitled to consideration in determining claimant’s attorney’s fees. We simply hold here, consistent with United States Steel v. Green, supra, that admissions and voluntary acceptance of benefits “in midstream” cannot be translated into a mathematical reduction in attorney’s fees based upon a percentage of the award.

Finally, in view of claimant’s attorney’s reliance upon case law pre-dating International Paper, claimant’s attorney should be permitted to present additional evidence to support his claim for attorney’s fees. The order appealed is affirmed in part, and reversed on the issue of attorney’s fees, with direction for reconsideration by the Judge of Industrial Claims after receiving additional evidence on the amount of attorney’s fees from both parties.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.

      . Appellant claims error in computation of his average weekly wage, and error by the Judge of Industrial Claims in making incomplete, in-consistant, and unsupported findings of fact. Appellees’ cross-appeal urges error in the award of temporary partial disability benefits.

      . The pretrial stipulation, dated January 4, 1978, was amended by changing the employer/carrier’s position on the date of maximum medical improvement from September 12, 1977 to “MMI unknown.”

      . Claim was filed by claimant’s attorney on March 4, 1977, although at the time of filing, all benefits due were being paid, and none had been denied. The employer/carrier’s contention that the claim was “premature” was raised for the first time at the January 19, 1978, hearing, by inserting that defense in the pretrial stipulation, and by ore tenus motion, which was denied as not being timely made.

      . See footnote 3, supra.

      . The empioyer/carrier’s original pretrial stipulation, made on January 4, 1978, in which they claimed September 12, 1977, as the date of maximum medical improvement, indicates a contrary intention.

      . Fifteen percent accepted on January 31, 1978.

      . The claimant’s request for hearing gave notice of the claim for permanent partial disability well in advance of the January 19, 1978, hearing. It is significant also that the claimant suffered a compound depressed skull fracture, surgically repaired, described by Dr. Johns as a “major injury,” with bone being driven into the brain, leaving a hole in claimant’s skull about the size of a half dollar. In Dr. Johns’ opinion such an injury, where the skull is torn and the brain is damaged, customarily warrants a 15% disability rating. Claimant appeared, fortunately, not to be among the 15% of people with that type injury who suffers seizures, although the doctor stated that he would still be considered to have some disability, and would be more susceptible to another head injury than a person without such a defect.


author: BERANEK, Judge.

text:
    In re ESTATE of Evelio Ortega GRILLO, Deceased.
    No. 80-961.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Rehearing Denied March 3, 1981.
    Richard A. Kupfer, Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant, Rosa V. Ortega, personal representative of the Estate of Evelio Ortega Grillo.
    Marjorie D. Gadarian, Jones & Foster, P. A., West Palm Beach, for appellee, General Motors Corp.
   BERANEK, Judge.

This appeal questions an order of the probate division which requires the personal representative of an estate to satisfy a certain cost judgment previously entered against the estate in a wrongful death action.

Mr. Grillo died on July 12, 1973, as the result of a truck accident. He was survived by a widow and three minor children. The widow was appointed administratrix of the estate.

In November, 1973, the widow, as personal representative, filed a wrongful death action against South Bay Equipment Company (the local dealer from which the truck was purchased) and General Motors Corporation (the manufacturer of the truck). This litigation has not been terminated and the estate proceedings remain open pending final conclusion of the wrongful death action.

After protracted and expensive pre-trial preparation, the wrongful death action was settled by the personal representative as against South Bay only for the sum of $89,500. The personal representative petitioned the probate court for approval of the settlement and for payment of her attorneys’ fees and her costs from the settlement. This motion was granted without regard to what the costs and fees might eventually be. The case proceeded against General Motors Corporation alone and a jury trial resulted in a defense verdict after which General Motors successfully moved to tax costs of $8,382.31 against the estate.

It is clear that the estate has no assets other than the proceeds of the settlement. After obtaining the cost judgment against the estate, General Motors Corporation filed a motion in the probate division to have the judgment considered a Class 1 priority under Section 733.707, Florida Statutes (1979). The personal representative objected and filed a petition for authorization to distribute the proceeds of the settlement. The personal representative asserted her attorneys’ fees were $9,709.35 and that the costs were $44,726.53, leaving approximately $35,000. She sought distribution of $20,-000 to the surviving spouse, $5,000 each to the three children, and nothing to the estate. The probate division granted the motion of General Motors Corporation requiring the personal representative to satisfy the cost judgment. No ruling was made on the petition of the personal representative to authorize distribution.

The personal representative argues on appeal that GMC’s cost judgment is not an obligation of the estate of Class 1 priority under Section 733.707, Florida Statutes (1979). Instead, she maintains the cost judgment is no more than a general debt of the estate thus not entitled to first priority. Section 733.707, Florida Statutes (1979), provides in part:

733.707 Order of payment of expenses and obligations.—
(1) The personal representative shall pay the expenses of the administration and obligations of the estate in the following order:
(a) Class 1 — Costs, expenses of administration, and compensation of personal representatives and their attorneys’ fees.

The question presented here is whether a cost judgment entered against the estate in a wrongful death action initiated by the estate is a “cost” or “expense of administration” entitled to Class 1 priority.

We have located no Florida authority on the issue and scant authority elsewhere, although numerous States provide for priority payment of costs of administration by statute as does the Uniform Probate Code, Section 3-805. It appears the State of New York has decided the precise question presented here in several lower court cases. The New York courts hold that a judgment for costs entered against an administrator in a suit initiated by the administrator is entitled to priority of payment as a cost of administration. In Re Williams’ Estate, 143 Misc. 527, 257 N.Y.S. 859 (Sur.Ct.1932), and In Re Groom’s Estate, 85 N.Y.S.2d 862 (Sur. Ct.1948). As Williams, supra, reasons, a judgment for costs such as here is not a debt against the estate rather it is an obligation created by the legal act of the personal representative in his effort to increase the assets of the estate. It is thus a cost or expense of administration.

We construe the General Motors cost judgment to be a “cost” within Section 733.-707(l)(a), thus entitled to Class 1 priority. We deal only with those portions of the case brought before us on appeal and make no ruling on the petition for distribution, which is yet to be decided.

We conclude that costs taxed against an estate in the unsuccessful prosecution of a wrongful death action are within Class 1 of the aforementioned statute and that the order below is, therefore, proper and is hereby affirmed.

AFFIRMED.

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

      . The original contract between the personal representative and counsel called for a fee of 33'/3 per cent, but plaintiffs counsel substantially reduced this percentage in view of the low settlement and the high costs.

      . These costs were expended by plaintiffs counsel in the prosecution of the successful claim against South Bay and the unsuccessful claim against General Motors Corporation.

      . Mr. Ortega died in 1973. The priority of payment was then contained within Section 733.20, Florida Statutes (1973). Although the wording of priority classes has been substantially revised, the wording of Class 1 contained within Section 733.20(1 )(a), Florida Statutes (1973), is identical to that of Class 1 contained within Section 733.707(1 )(a), Florida Statutes (1979).


author: WENTWORTH, Judge.

text:
    ELLER AND COMPANY, INC., and Midland Insurance Co., Appellants, v. Ralph Huey MORGAN and Central Truck Lines, Inc., Appellees.
    No. TT-93.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 25, 1981.
    Carle A. Felton, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellants.
    Tom C. Meers, Philip A. Webb, III, and L. Vincent Burrell, Jacksonville, for appellees.
   WENTWORTH, Judge.

Appellant Eller and Company loaded marble on Central’s truck in Tampa for shipment to Custom Art Furniture in Jacksonville. Custom’s employee Morgan was hurt when the marble fell on him during unloading ten days later, and he sued Eller and Central. After Central paid $125,000 to Morgan in settlement of this claim, Eller filed a third party complaint against Central for indemnity. Eller appeals the resulting judgment in favor of Morgan for $150,000 (a $275,000 jury award less the $125,000 set-off paid Morgan by Central) and also appeals the denial of indemnity against Central. Morgan cross-appeals the set-off. We affirm.

Eller argues the court erred (1) in denying motion for directed verdict in favor of Eller and against Morgan; (2) in permitting response to a hypothetical question; (3) in denying motion for directed verdict on the indemnity claim against Central; and (4) in refusing a requested jury instruction relating to indemnity.

Upon review of the record we find no error as to the first and second stated issues. The load remained in the truck until delivery and at the time of the accident the crate which fell on Morgan was still secured. Although there was conflicting evidence as to responsibility for and execution of loading procedures, the motion by Eller for directed verdict on Morgan’s claim was properly denied based on reasonable inferences from evidence against Eller necessarily taken as true for purposes of such motion. Coca-Cola Bottling Co. v. Clark, 299 So.2d 78 (Fla. 1st DCA 1974); Acme Electric, Inc. v. Travis, 218 So.2d 788 (Fla. 1st DCA 1969). The objection to the hypothetical question, relating to proper loading precluding the accident, was based on alleged lack of facts in evidence to support the question. The record evidence supports the ruling on the objection.

As to point three, we conclude the motions for directed verdict and for judgment notwithstanding the verdict on the indemnity claim were properly denied, based on our study of the evidence in light of provisions of § 392.9, Federal Motor Carrier’s Safety Regulations, and the National Motor Freight Classification tariff introduced and relied on by the parties. Upon the conflicting evidence presented by the parties as to the manner and responsibility for, loading and transport, neither provision is so definitive as to compel a conclusion on the issues as a matter of law.

Eller’s final contention concerns the rejection of a requested jury instruction on the indemnity claim. Our review of the court’s instructions on this claim indicates a clear and correct recitation of the law. No abuse of discretion is shown in the ruling on this point.

Morgan’s cross-appeal challenges the trial court’s application of the following statute to diminish the amount of Morgan’s verdict against Eller by the amount of Morgan’s settlement with Central prior to trial, since Morgan’s claim was against both Eller and Central:

768.31 Contribution among tort-feasors.—
(5) RELEASE ... When a release . .. is given in good faith to one of two or more persons liable in tort for the same injury ... (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

Eller defends the set-off based on the fact that, prior to the trial in this action, both Eller and Central Truck were defendants in the claims of Morgan. The Morgans settled with Central Truck for $125,000. Thus, Central Truck was discharged from any liability to the Morgans, and, by virtue of Florida Statutes § 768.31(5)(b), from any liability to Eller for contribution. Seaboard v. Gordan, 328 So.2d 206 (Fla. 1st DCA 1976). However, under § 768.31(5)(a), any verdict which Morgan received against El-ler is reduced by the amount of the settlement with Central Truck. It should be noted that the settlement did not bar El-ler’s claim for indemnity against Central Truck and it was Eller’s indemnity claim on which the jury denied recovery, so there was no need for the jury to apportion the degree of fault. The release was timely brought to the court’s attention prior to trial and all parties agreed that the release should not be made known to the jury.

We conclude the trial court was correct in its order on this question:

It is the contention of plaintiff Morgan that any such reduction would amount to a contribution among tortfeasors. By virtue of the jury’s verdict in defendant Eller’s case against Central, Eller was found to be actively guilty of negligence and there can be no contribution among active tortfeasors. Plaintiff Morgan further contends that no evidence of the $125,000 was introduced as evidence, so therefore the Court has no authority to offset.
As background, as part of a pretrial compliance, the $125,000 release was made known to the Court. Counsel for all three parties agreed that in order to insulate the jury from any possible influence that this release might have, it would not be made known to the jury. The case would be bifurcated. All testimony in the trial of plaintiff Morgan against defendant Eller would be considered by the same jury in the trial of the case of Eller against third party defendant Central. It was also the Court’s understanding based upon the agreement of the parties, that following a verdict and depending upon the verdict, there would be a supplemental hearing before the Court to determine other matters affecting the judgment, .... The possible reduction per F.S. 768.31(5) was not discussed specifically, but the Court is of the opinion that it was not excluded by the pre-trial understanding.
The language of Section 5 is very plain and clear. This section mandates that defendant Eller be given credit for the full $125,000 consideration paid by defendant Central to plaintiff Morgan to reduce the jury verdict of $275,000.

The judgment is accordingly affirmed. The appellee Morgan’s motion to strike appellant’s letter transmitting a record excerpt, after argument in this cause, is denied.

MILLS, Chief Judge, and McCORD, J., Concur.


text:
    Barbara Lou McINTOSH, Appellant, v. Thomas F. McINTOSH, Appellee.
    No. UU-31.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 25, 1981.

      William R. Slaughter, II, Slaughter & Slaughter, Live Oak, for appellant.
    Winston W. Jacobo, P. A., Live Oak, for appellee.
   PER CURIAM.

The wife appeals a final judgment of dissolution awarding the husband a special equity in 80 acres of land, deeded to the parties by the husband’s parents, on which rests the marital home built by the husband. We find that the award was erroneous and remand the case for reconsideration.

In 1970, the husband’s parents transferred 80 acres to the husband and wife jointly, reserving life estates for themselves. The deed was duly executed and recorded. Over a two-year period the husband physically built a home on 10 of the 80 acres; the wife helped draw the floor plans. Throughout the 26-year marriage the wife remained the homemaker and did not contribute financially to the construction or maintenance of the home. According to the husband, the reason for initially taking title jointly was for survivorship purposes. Regarding the transfer of the 80 acres, the husband’s mother testified: “She was his wife, and naturally, she’d be around too, you know, but as for her getting the property by herself, no.”

Record title is the starting point for determining a property division between spouses in dissolution cases. Ball v. Ball, 335 So.2d 5, 7 (Fla.1976). However, a spouse may establish in the realty a special equity which “is a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties.” Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). Nonetheless, there is a qualification: When property held as a tenancy by the entirety is improved from funds generated by a working spouse while the other spouse performs the job of homemaker, a special equity in such property does not necessarily arise.

In Duncan, the court determined the issue of what spousal contributions established a special equity. In that case the efforts of the husband in constructing improvements on property did not constitute a special equity although the husband participated in the construction by laying bricks, digging trenches, preparing blueprints, hiring the carpenter and bricklaying contractors, overseeing the work, buying and hauling building materials to the job site and spending his personal money on the home. The supreme court concluded that the property was part of the accumulated marital assets and was acquired by the husband and wife with funds earned during the course of their marriage.

Between the working spouse and a homemaker, it is the normal duty of the working spouse to provide a marital home. Here, the husband chose to physically build the home and was free to do so because his wife maintained the household and performed child-rearing responsibilities. Thus, there is insufficient evidence of a special contribution by the husband justifying an imposition of a special equity on the wife’s one-half of the marital homestead and remaining acreage. Additionally, the wife’s economic status is not such that the award to the husband can be justified as lump sum alimony. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980).

Recognizing that final judgments in dissolution eases encompass awards which are interdependent, we reverse and remand for reconsideration of the final judgment in light of this opinion, Duncan v. Duncan and Canakaris v. Canakaris.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.

      . We do not decide how nonretroactivity of Ball might require reversal here because this issue was not raised. See generally, Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980).


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

text:
    Milton MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. UU-299.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 27, 1981.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David Gaul-din, Asst. Atty. Gen., Tallahassee, for appel-lee.
   ROBERT P. SMITH, Jr., Judge.

We reverse Marshall’s conviction for burglary because the State elicited from a police officer testimony that Marshall stood on his Fifth Amendment privilege against self-incrimination and refused to answer the officers’ on-scene custodial interrogation. The officer testified:

When the officers that apprehended him handcuffed him and brought him to my car, he was given his Miranda Warnings verbally and he did not want to talk to any of us at the time. He was placed in the car. We took him to the station ....

Marshall’s motion for mistrial was denied, evidently on the ground that since Marshall made a voluntary exculpatory statement some 20 hours later, which the State later proved, Marshall’s initial silence was also provable. We disagree.

In Clark v. State, 363 So.2d 331, 333 (Fla. 1978), the Florida Supreme Court summarized the constitutional standard which is applicable here:

The Supreme Court of the United States, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), construed this right [against self-incrimination] to mean that the prosecution may not use at trial the fact that the defendant claimed his privilege to remain silent in the face of accusation. Indisputably, evidence of post-arrest silence is improper because it violates the defendant’s right against self-incrimination. If properly preserved for appeal through objection, the admission of such testimony constitutes reversible error.

In Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 97-98 (1976), the Supreme Court elaborated its reasons for condemning such evidence as was elicited in this case about Marshall’s election to exercise his Miranda rights:

Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.... Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

In the case before us, Marshall was arrested at 4:40 a. m. outside the restaurant where he had been employed. Officer So-tuyo testified that he observed Marshall through a broken window inside the restaurant, getting ready to open a cigarette machine with a screwdriver in his hand. Marshall denied all this, and testified at trial that he was arrested outside the restaurant where he had gone to resolve with his employer a $20 shortage in his paycheck. Marshall gave a similar explanation to police at the jail, when finally Marshall did talk to them some 20 hours after his arrest.

Precisely because evidence of Marshall’s silence when taken into custody was “insolubly ambiguous,” suggesting either that he had not yet formulated his trumped-up story or that he simply chose to exercise the right of silence the police told him he had, the State’s proof of Marshall’s initial silence must be regarded not as probative in the sense first suggested, but as a penalty for the exercise of his constitutional right to be silent.

In Lofton v. Wainwright, 620 F.2d 74 (5th Cir. 1980), the Court of Appeals decided a case involving a sequence of custodial events which was the reverse of those here. The court held that Lofton’s Fifth Amendment rights were not improperly compromised by the State’s proof that he ended his voluntary custodial statement to police by saying he did not want to say anything more until he had talked to a lawyer. The State adduced evidence of the entire colloquy to impeach an alibi offered by Lofton at the trial but not advanced during his custodial statement. Assuming for present purposes the correctness of Lof-ton, we think it stands for the proposition that the accused’s voluntary statement while in custody may be adduced at trial by the State, and the defendant testifying to an alibi may be closely questioned why his custodial statement did not include the alibi. The Lofton court stated, 620 F.2d at 77:

In pursuing the point about what was not said during the police questioning, it was necessary, of course, for the prosecutor to bring out all that was said, including Lofton’s final comment — that he would say nothing further without first talking to a lawyer.

Assuming the correctness of the last conclusion, we think it is quite another matter for the State to have elicited here Marshall’s initial silence, for no reason but to suggest that Marshall, if he had a legitimate explanation, should have given it then.

We likewise reject the State’s assertion that the error was harmless because the evidence of Marshall’s guilt was overwhelming. Even assuming the evidence was of that character — in which assumption we must entirely disregard Marshall’s testimony — we are bound by Florida Supreme Court decisions that when the accused’s custodial silence is improperly proved, and a motion for mistrial is made, reversal follows “without consideration of the doctrine of harmless error.” Bennett v. State, 316 So.2d 41, 44 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976).

REVERSED.

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


text:
    Cheryl BARNEY, Appellant, v. NATIONAL AIRLINES, INC., etc., Appellee.
    No. 79-2278.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 23, 1981.
    Bailey & Dawes and Sara Soto, Miami, for appellant.
    Steel, Hector & Davis and John M. Bark-ett, Miami, for appellee.
    Before HUBBART, C.J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of International Association of Machinists, AFL-CIO v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963) and Andrews v. Louisville & Nashville Railroad Company, 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).


text:
    CITY OF MIAMI, a Florida Municipal Corporation, Appellant, v. Leonard L. GATES et al., Appellees.
    No. 80-15.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 23, 1981.

      George F. Knox, Jr., City Atty. and Ronald J. Cohen, Asst. City Atty., Paul, Landy,' Beiley & Harper and Lawrence R. Metsch and Robert M. Sondak, Miami, for appellant.
    Paul & Thomson and Parker D. Thomson and Sanford L. Bohrer and Kenneth W. Lipman and Saturino E. Lucio, II, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The City of Miami seeks review of a non-final order granting summary judgment on liability against it on Counts III and IV of a class action complaint in equity brought on behalf of past and present fire and police employees who are beneficiaries of the city’s pension fund. We affirm as to Count IV, and affirm in part and reverse in part as to Count III.

The action below, which was commenced in 1977, concerned several distinct allegations that the city had improperly diverted ad valorem tax revenues which had been specifically authorized and assessed for the pension system. Count III involved the claim that, between 1958 and 1967, the city had used such funds for the payment of the judgments against it which were affirmed in City of Miami v. Carter, 105 So.2d 5 (Fla.1958) and City of Miami v. Hall, 105 So.2d 499 (Fla. 3d DCA 1958). Count IV contended that, within the preceding three years, the city had used these revenues to meet its statutory obligations to pay workmen’s compensation benefits. After the denial of a motion to dismiss was affirmed in City of Miami v. Gates, 352 So.2d 542 (Fla. 3d DCA 1977), cert. denied, 361 So.2d 831 (Fla.1978), over the appellate contention that the action was barred by laches which appeared on the face of the complaint, the city raised the defense in its answer. Subsequently, the plaintiffs moved for summary judgment on Counts III and IV, supported by evidentiary material as to the merits of the alleged misuse of funds. The trial judge granted the motion, stating in the order now under review:

1. By Ordinance No. 2230, the City of Miami established a pension system for its employees, such system presently having separate funds for its police and fire employees (the “Pension System”) and its other employees.
2. During the fiscal years 1959 through 1976, inclusive, the City of Miami raised a portion of the money necessary to fund the Pension System pursuant to authority granted the City by Chapter 1[8]689, Florida Laws, 1937 (the ‘Two Mill Tax Authorization Act’) and Chapter 24696, Florida Laws, 1947 (the ‘Four Mill Tax Authorization Act’).
3. In its annual budget ordinances for the fiscal years set forth above, of which the Court takes judicial notice, the City of Miami stated certain millages were to be taxed for pension purposes.
4. The City did so tax and collect, such monies, but only a portion of such monies was paid into the Pension System, the remainder being used for other, non-pension related purposes.
5. Between the years 1959-1969 monies were deposited by the City in an account it entitled ‘Special Tax Levy Pension Fund,’ City Account Number 219.03, but were not spent for pension purposes, and were instead spent for the purpose of paying legal judgments that had been rendered against the City in the cases of Carter v. City of Miami, Case No. 183911 (Dade Co.1957) and Hall v. City of Miami, Case No. 194298-K (Dade Co.1958).
6. Between the years 1973 and 1975 monies raised pursuant to the Four Mill Tax Authorization Act and deposited by the City in the ‘Special Tax Levy Pension Fund’ account were not spent for pension purposes, but were spent for the purpose of reimbursing the City for payments it was obligated to make to City employees pursuant to Florida Workmen’s Compensation Law.
As a matter of law, that money raised by the City for a specific purpose must be spent for that purpose only and thus money raised for pension purposes must be spent for pension purposes only. Therefore, the Court concludes money raised by the City for pension purposes but spent to pay legal judgments and Workmen’s Compensation obligations were improperly diverted from the Pension System, into which such money should have been deposited.
IT IS THEREBY ORDERED that Plaintiff’s Amended Motion for Summary Judgment is granted and summary judgment is hereby entered on liability in favor of Plaintiffs and against Defendant City of Miami with respect to the matters set forth in Counts III and IV of the Complaint as amended, the Court reserving jurisdiction with respect to the amount of damages to be paid into the Pension System.

The lower court’s resolution of the issues treated in the order below was entirely correct. It is clear (a) that the taxes in question were explicitly assessed by the city for the benefit of the employees’ pension fund in accordance with the specific authorization of the legislature, see, Ex parte Simms, 40 Fla. 432, 25 So. 280 (1898); (b) that these tax funds therefore could be used for that precise purpose and for none other, and (c) that, insofar as they were employed to satisfy the pre-existing Carter and Hall judgments and to pay the city’s workmen’s compensation requirements, the proceeds were plainly and improperly not so used. Voorhees v. City of Miami, 145 Fla. 402, 199 So. 313 (1940); see, City of Tampa v. Birdsong Motors, Inc., 261 So.2d 1 (Fla. 1972); City of Miami v. Carter, supra; City of Pensacola v. Fillingim, 46 So.2d 876 (Fla. 1950); City of Miami v. Kayfetz, 158 Fla. 758, 30 So.2d 521 (1947); Chamberlain v. City of Tampa, 40 Fla. 74, 23 So. 572 (1898). The city’s contention as to the latter point is apparently that since its employees are the ultimate recipients of both classes of payments, funds earmarked for their independent pension fund may be utilized to make them. This claim amounts to the suggestion that, while one may not rob Peter to pay Paul, it is permissible to take from Paul himself in order to do so. It need hardly be stated that we thoroughly disagree with such a proposition.

The determination below that the city’s use of the funds in question was improper is therefore affirmed. As to Count III, however, we reverse as to the laches defense raised in the answer. As we implied in our earlier decision in this case, laches may indeed be asserted as a defense to an action such as this. City of Miami v. Carter, supra. When the order was entered, however, the affirmative defense stood essentially unrebutted by any adequate factual showing. The plaintiffs certainly did not carry their required burden affirmatively and conclusively to demonstrate the absence of a genuine issue which would negate the defense as a matter of law, so as to justify a summary judgment on the question. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978), and cases cited. Therefore, as to Count III only, the order below is reversed and the cause remanded for appropriate disposition of the laches issue.

Affirmed in part, reversed in part.

      . Although the order did not dispose of all the liability issues in the case, the counts involved are separate and distinct from those which remain pending, see Mendez v. West Flagler Family Ass’n. Inc., 303 So.2d 1 (Fla.1974) so as to permit review at this time under Fla.R. App.P. 9.130(a)(3)(C)(iv).

      . Ironically enough, these cases involved a similar misuse by the city of excise taxes which had been legislatively authorized only for additional pension funds for policemen and firemen.

      . We cited City of Miami v. Carter, supra, in which, at 105 So.2d 14, the supreme court upheld the chancellor’s factual determination after trial that laches had not been established.

      . None of the numerous other affirmative defenses is presently in issue. Moreover, it is conceded on this appeal that laches is not involved as to the claim contained in Count IV.

      . Both of the pertinent statutes, Ch. 18689, Laws of Fla. (1937) and Ch. 24696, Laws of Fla. (1947) authorize the city to “establish a fund or funds for the relief or pension” of employees and grant it the right to raise taxes “for such purpose.” Each of the city’s annual taxing ordinances accordingly authorized a “tax [of a given millage] to provide for the requirements of the Pension Fund of the City.”

      . Accord, City of St. Petersburg v. Norris, 335 So.2d 333 (Fla.2d DCA 1976), cert. denied, 344 So.2d 325 (Fla. 1977). As Carter and Norris did implicitly, we expressly reject the appel-lees’ contention that the fiduciary status of the city with respect to the use of tax monies, described in Oven v. Ausley, 106 Fla. 455, 143 So. 588 (1932), may be properly analogized to that of the trustee of an express trust, so as to preclude the applicability of the laches doctrine. Cf., Anderson v. Northrop, 30 Fla. 612, 12 So. 318 (1892).

      . The only reference to the facts touching on this issue in the plaintiffs supporting affidavits was, at best, a tangential one.

      . See note 4, supra.

      . The trial judge has not yet considered the various factual and legal contentions concerning laches, particularly as to the validity and effect of § 95.11(6), Fla.Stat. (1977), which have been briefed and argued in this court. It is therefore inappropriate to engage in any extensive discussion of these issues. See, City of Coral Gables v. Puiggros, 376 So.2d 281 (Fla. 3d DCA 1979). We do, however, point out — by way of guidance for the further proceedings our opinion requires — that § 95.11(6) refers only to the “time provided for legal actions concerning the same subject matted’ [e. s.j of the cause in question. If, as may well be the case, the present equitable proceeding is not equivalent to any action at law treated in other limitations provisions, § 95.11(6) would have no effect at all on the laches defense. Moreover, even if otherwise applicable, § 95.11(6) does not purport to affect that element of the laches doctrine which requires an unreasonable delay, without satisfactory explanation, in commencing the action after the plaintiff has been put on notice of his rights. See, 21 Fla.Jur. Limitations of Actions, §§ 95-96 (1958); but cf., Smith v. Branch, 391 So.2d 797 (Fla. 2d DCA 1980).