author: SCHEB, Chief Judge.

text:
    FIRST GUARANTY CORPORATION, a Minnesota corporation, Joseph E. Campion, Peter J. Campion, Joseph J. Omerza and Arthur K. Raudio, Appellants, v. PALMER BANK AND TRUST COMPANY OF FORT MYERS, N.A., a Florida corporation, Appellee.
    No. 80-1884.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 28, 1981.

      Steven G. Schember of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellants.
    H. Stephen Frank, Fort Myers, for appel-lee.
   SCHEB, Chief Judge.

The issue presented in this case is whether a note and mortgage which was not signed by the appellants, First Guaranty Corporation and its principals, together with certain other signed and unsigned documents satisfied the requirements of the statute of frauds. The trial court found that the documents, taken as a whole, did satisfy the statute. Therefore, the court concluded the appellants were liable, as guarantors, for a deficiency judgment on foreclosure by the appellee Palmer Bank and Trust Company of Fort Myers, N.A. We disagree and reverse.

Palmer Bank and Trust Company sued to foreclose a note and mortgage and to obtain a deficiency judgment against the appellants and two other codefendants should the proceeds of the sale of the secured real property be insufficient. Appellant, First Guaranty Corporation, is a Minnesota corporation which agreed to provide capital necessary for real estate development to Edward C. Hillstrom and Neil 0. Larson who, along with appellants, were codefend-ants in the suit. At trial testimony revealed that, while the appellants did agree to act as financiers for Hillstrom and Larson, they did not sign the note and mortgage; instead, these documents were signed only by Hillstrom and Larson “as trustees under that unrecorded trust of May 30, 1974.” Nevertheless, the court found the appellants as well as Hillstrom and Larson liable for a deficiency judgment of $161,-340.26.

Appellants argue that because they did not sign the note and mortgage, the statute of frauds precludes their liability for a deficiency. Appellee, on the other hand, points to three agreements which it claims can be considered in conjunction with the note and mortgage to satisfy the statute of frauds: (1) an unsigned land trust agreement, (2) a joint venture agreement signed by the appellants and Hillstrom and Larson, and (3) five separate guaranty agreements each signed by one of the appellants. They contend that these agreements, being part of a total loan construction package, sufficiently demonstrated the appellants’ involvement in the ongoing real estate transaction and manifested their intent to guarantee the Bank’s loan to Hillstrom and Larson.

The statute of frauds requires a written contract guaranteeing the debt of another to be signed by the person to be charged. § 725.01, Fla.Stat. (1979). Moreover, to comply with the statute, the writing must contain the essential terms of the transaction. However, several writings, only one of which is signed, may be aggregated to satisfy the statute, Bader Brothers Transfer & Storage, Inc. v. Campbell, 299 So.2d 114 (Fla. 3d DCA 1974), provided the signed writing expressly or implicitly refers to the unsigned document. Meek v. Briggs, 80 Fla. 487, 86 So. 271 (1920); Socarras v. Claughton Hotels, Inc., 374 So.2d 1057 (Fla. 3d DCA 1979); Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972); 15 Fla. Jur. Statute of Frauds, § 11 (1964). An implied reference may be established by either the fact that the documents relate to the same subject matter or by physical annexation. Simmons v. Tobin, 89 Fla. 321, 104 So. 583 (1929). Moreover, parol evidence is, in certain instances, admissible to clarify the writing. Jackson v. Parker, 153 Fla. 622,15 So.2d 451 (1943); Northwestern Bank v. Cortner, 275 So.2d 317 (Fla. 2d DCA 1973).

Since the trial court did not articulate the basis on which it concluded that the appellants were liable, we now review each of the agreements which appellee alleges satisfies the statute.

I.LAND TRUST AGREEMENT

The Bank alleged in its foreclosure complaint that an unsigned land trust agreement dated May 3,1974, was the same agreement referred to by Hillstrom and Larson where they signed the Bank’s mortgage as “trustees under that unrecorded trust of May 30, 1974.” They argue this trust agreement sets forth the relationship between the parties and establishes that the appellants intended to guarantee the loan represented by the note and mortgage signed by Hillstrom and Larson. However, since the agreement was not signed, it cannot supplement the note and mortgage to satisfy the statute.

II.JOINT VENTURE AGREEMENT

This agreement dated May 9, 1974, is the only agreement signed by the appellants as well as Hillstrom and Larson. It defines the relationship of the parties with respect to the purchase and development of real estate, one parcel of which is the realty secured by the mortgage. Initially, the Bank argues that the joint venture agreement, together with the note and mortgage, satisfies the statute of frauds. As noted, the court could properly have considered the note and mortgage along with the joint venture agreement if the agreement expressly or implicitly referred to the note and mortgage. However, since no reference is made to the mortgage itself or to any obligation owing to Palmer Bank or to any other financial institution, the mortgage document cannot be interrelated with the joint venture agreement to satisfy the statute of frauds.

In addition, the appellee Bank maintains that the joint venture agreement establishes that Hillstrom and Larson were acting as appellants’ agents. Therefore, the Bank concludes that the appellants were bound by the signatures of Hillstrom and Larson on the note and mortgage. While it generally precludes introduction of testimony of prior or contemporaneous agreements, the parol evidence rule permits a court to receive testimony for the purpose of determining whether an agency relationship exists with an undisclosed principal. Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976). At trial the Bank contended that codefend-ant Larson acted on behalf of the appellants, First Guaranty and its four principals, and that it would not have made the loan absent this understanding. That contention is unavailing, however, since paragraph 6 of that agreement provides:

It is further agreed that the duties of each party are subject to the approval and control of the other and that the parties hereto are not parties (sic) but joint adventurers in which neither can bind the other to third parties ....

III.GUARANTY AGREEMENTS

Five guaranty agreements were submitted to the court to establish that the appellants could be charged as guarantors on the note and mortgage. The body of each of these printed form agreements contained three blanks. The first would specify the name of the borrower, the second, the amount of the liability guaranteed, and the third, the date the documents were signed. First Guaranty Corporation was typed in as being the name of the borrower in the forms signed by the four individual appellants, but the other blanks were not filled in. On the form signed by First Guaranty Corporation, all of the spaces were left blank.

Over the objection of appellants, the trial court permitted the introduction of parol evidence to determine the parties’ intent. Conflicting evidence was submitted concerning the agreements’ purpose. The ap-pellee contends that they were intended by the parties to guarantee their loan on the note and mortgage; while the appellants assert that they were submitted as part of an application to obtain a construction loan unrelated to the note and mortgage.

It is well settled that parol evidence may not be introduced to vary the terms of a written agreement. Schwartz v. Zaconick, 68 So.2d 173 (Fla.1954); Atkins v. Bianchi, 162 So.2d 694 (Fla. 1st DCA 1964). Thus, with respect to the forms signed by the four individual appellants, the court erred in admitting parol evidence in direct conflict with the written insertion that the debt to be guaranteed was a loan to First Guaranty Corporation, not Hillstrom and Larson.

On the other hand, the guaranty agreement signed by First Guaranty Corporation was admittedly ambiguous because all of the spaces were left blank. Therefore, further refinements of the parol evidence rule must be considered.

Where a document is ambiguous, the trial court may admit parol evidence to determine the parties’ intent if the ambiguity is latent. Whitfield v. Webb, 100 Fla. 1619, 131 So. 786 (1931); Hunt v. First National Bank, 381 So.2d 1194 (Fla. 2d DCA 1980); Drisdom v. Guarantee Trust Life Insurance Co., 371 So.2d 690 (Fla. 3d DCA 1979); City of Hollywood v. Zinkil, 283 So.2d 581 (Fla. 4th DCA 1973). A latent ambiguity exists where a document is rendered ambiguous by some collateral matter. Where, however, the court, to supply the essential information, would have to rewrite the contract for the parties, the ambiguity is patent and parol evidence is inadmissible. Ace Supply Co. v. Terra Nova Electric, Inc., 288 So.2d 544 (Fla. 1st DCA 1974); Patterson v. Taylor, 123 So.2d 389 (Fla. 3d DCA 1960).

The guaranty agreement executed by First Guaranty Corporation was a shell form signed in blank. The omissions in the agreement rendered it patently ambiguous. Therefore, the court erred in receiving testimony. Connelly v. Smith, 97 So.2d 865 (Fla. 3d DCA 1957).

Since appellants did not sign the note and mortgage and none of the agreements, when aggregated, satisfy the statute of frauds, the trial court erred in determining the appellants were liable for the deficiency judgment on foreclosure.

Accordingly, we reverse and remand to the trial court with directions to vacate the deficiency judgment against appellants.

GRIMES and RYDER, JJ., concur.


source: Caselaw Access Project

author: BARKDULL, Judge.

license: Public Domain

text:
    VOLKSWAGEN INSURANCE COMPANY, Continental Insurance Company, and James E. Fulton, Jr., M. D., Appellants, v. DUNG BA NGUYEN, Appellee.
    Nos. 79-2330, 80-60 and 80-202.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Nov. 12, 1981.

      Batchelor, Brodnax, Guthrie & Primm and Robert A. Freyer, Corlett, Merritt, Kil-lian & Sikes, Daniels & Hicks and Mark Hicks, Smathers & Thompson and George Volsky and Jose R. Garcia-Pedrosa, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart and Stephen A. Stieglitz, Miami, for appellants.
    Podhurst, Orseck & Parks and Joel D. Eaton, Rossman & Baumberger, Miami, for appellee.
    Lee, Schulte, Murphy & Coe, Miami, for Holyoke Mut. Ins. Co. In Salem as amicus curiae.

      Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   BARKDULL, Judge.

The plaintiff, Dung Ba Nguyen (hereinafter referred to as Ming) was injured as a result of a freak accident.

At the time of the accident, Ming was employed by AHC Pharmaceutical (hereinafter referred to as AHC). This company produced medications; it is wholly owned by Dr. James E. Fulton, Jr. and his wife. Fulton and his wife are also the sole shareholders of Florida Growers Nursery (hereinafter referred to as Fla. Growers). Fulton also owns James E. Fulton, Jr., M.D., P.A.

On Friday, October 21, 1977, Dr. Fulton’s secretary asked Ming to work Sunday, October 23. Ming was requested to move certain items from AHC’s prior address to its then location; he was also to help Fulton move furniture from his residence on Key Biscayne to Fla. Growers for storage because the doctor was preparing to move to California. Ming arrived at AHC on Sunday, the 23rd, where he was met by Fulton and another AHC employee, Charles Franklin. The three men went across the street to a vacant lot, where a “stake” truck belonging to Fla. Growers had been parked for about six months. It wouldn’t start so they had to “fix it”. Ming installed a battery and Franklin then unsuccessfully attempted to start the engine. The men decided that the truck was either out of gas or it had water in the gas tank. Fulton sent Ming back to AHC to get a can of gasoline. Upon his return, Ming poured gas in the tank and gave Fulton a small cup of gas. Franklin attempted to start the truck while Fulton poured some gas in the carburetor. After about the third or fourth attempt to start the truck by pouring gas into the carburetor, the gas burst into flames and the small cup of gas Fulton was holding caught fire. Fulton immediately threw the cup which struck Ming in the chest, resulting in burns to Ming.

This action was commenced by Ming, claiming damages for personal injuries from Fla. Growers, Fulton and Continental Insurance Company (hereinafter referred to as Continental). In the second amended complaint, it was alleged Fulton negligently threw burning gasoline on Ming while he (Fulton) was pouring gas into the carburetor of a trucked owned by Fla. Growers. The complaint alleged Continental provided liability insurance coverage for Fulton. Fulton answered and filed a crossclaim against Continental, claiming insurance coverage for the accident under a homeowner’s policy issued to him and his wife, covering their Key Biscayne home. Fulton, further, filed a third party complaint against Volkswagen Insurance Company (hereinafter referred to as VICO), claiming coverage under his automobile policy insuring his private automobile. VICO answered the third party complaint, alleging no coverage on the grounds that the accident did not arise out of the maintenance and use of an automobile and that, if so, coverage was excluded because the truck was available to Fulton for his regular use and was not in VICO’s policy, and that the accident occurred while Ming was employed or engaged in a business. Fulton, additionally, filed an amended crossclaim against Continental for coverage for the accident under a Special Multi-Peril policy (hereinafter referred to as SMP). Continental denied coverage under both of its policies. During the proceedings, a notice of lien was filed by Cosmopolitan Insurance Company, who paid workmen’s compensation benefits to Ming for the accident. Fulton, VICO, and Continental each moved for summary judgment on the insurance coverage issues.

The trial court held that both Continental’s homeowner’s policy and its SMP provided coverage for this accident. He also held that VICO had coverage under its automobile policy. He denied Continental’s and VICO’s motions. A declaratory judgment for coverage was entered in favor of Fulton relative to the Continental policies and in favor of Fulton on the VICO policy.

The claim of Ming proceeded to trial and, pursuant to a jury verdict, final judgment was entered awarding him damages in the amount of $350,000.00 against Fulton and Continental.

Motions for rehearing and for new trial were filed by Continental, asserting, inter alia, that newly discovered evidence revealed that the SMP policy had been can-celled prior to the date of the accident. The court denied the motions for rehearing and for new trial, and these appeals followed.

This is a consolidation of the following three appeals:

1. Notice of appeal filed by VICO in Case No. 79-2330 was directed to the declaratory judgment against it as a third party defendant, relating to insurance coverage under Fulton’s automobile policy.

2. Notice of appeal filed by Fulton in Case No. 80-60, which was directed to the final judgment in favor of Ming for $350,-000.00 and against defendants, Fulton and Continental, and the order denying defendant’s motion for judgment in accordance with motion for directed verdict and motion for new trial.

3. Notice of appeal filed by Continental in Case No. 80-202, which was directed to the final judgment in favor of Ming and against the defendants, Fulton and Continental, and the declaratory judgment relating to insurance coverage.

No point on appeal is made by any of the defendants as to the liability of Fulton, although a point is made as to the damages being excessive. The other points preserved relate to the question of coverage under the several insurance policies involved.

We find no error in denying the motion for new trial upon the ground that the jury award was excessive. See: Talcott v. Hall, 224 So.2d 420 (Fla.3d DCA 1969); Seaboard Coast Line Railroad Company v. McKelvey, 259 So.2d 777 (Fla.3d DCA 1972), affirmed 270 So.2d 705 (Fla.1973); Bould v. Touchette, 349 So.2d 1181 (Fla.1977).

VICO POLICY

We find no coverage under this policy for the following reasons:

The VICO policy contains a clear exclusion that no coverage is provided to “non owned” automobiles if it is furnished or available for the insured’s regular use, as follows:

“9. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.”

The purpose of the exclusion and the reason why it has been found valid is that an insured cannot insure one vehicle and then have his policy cover all other vehicles which are available to him and in which he has an interest.

Fulton, in the third party complaint, alleged coverage under VICO’s “non owned automobile” provision. The purpose of such provision is to cover the insured while “engaged in infrequent and casual use of an automobile other than the one described in the policy”. Henigson v. Davis, 305 So.2d 86 (Fla.4th DCA 1974). However, no coverage would be afforded to Fulton relative to any automobile or vehicle if it was owned by him or furnished or available for his regular use.

The 1962 truck had been owned by Fulton and transferred to Fla. Growers. The corporation was inactive in 1977 and Fulton was the only person with the keys to the truck. He had sole and complete control over the truck and testified that it was available for his use at any time. Fulton periodically started the truck and kept it because he still owns a ranch and might have some use for the truck. The only reason title to the truck had not been changed from Fla. Growers back to Fulton was that he did not want to pay the transfer fee and he simply had not gotten around to it.

In the recent case of Fidelity & Casualty Co. of New York v. Fonseca, 358 So.2d 569 (Fla.3d DCA 1978), cert. denied 365 So.2d 711 (Fla.1978), the court held that where the defendant (wife) was driving her husband’s car no coverage was provided under the wife’s policy since the husband’s car was not “non owned” as it was furnished for her regular use.

Fulton urges that the truck had been sitting for six months and for this reason could not qualify as being furnished or available for “regular use”. This argument overlooks the provision of the policy and the exclusion which is applicable if a non owned vehicle is available or provided for regular use it is excluded. In Fonseca, supra, the court noted that a vehicle did not qualify as “non owned” if it was potentially available for use on a regular basis, whether or not the vehicle was actually used. Fulton could have used the truck any time he wanted to; the truck was available to Fulton and only to Fulton. See, also: Insurance Company of North America v. Ready, 240 So.2d 311 (Fla.3d DCA 1970), where no coverage was provided because the vehicle driven by the insured was owned by his wife and was furnished for his regular use.

In Duprey v. United Services Automobile Assoc., 254 So.2d 57 (Fla. 1st DCA 1971), the insured was involved in an accident while driving her brother’s automobile. The insured automobile had been used by the insured’s husband to drive to Alabama for six weeks, returning home on weekends. The insured wife used her brother’s car for five or six weeks and she had almost unrestricted use of the brother’s automobile. The appellate court, in affirming the summary judgment for the insurer, held that the undisputed facts demonstrated that the brother’s automobile had been available to the insured for her regular use.

In the present ease, on the date of the accident, Fla. Growers was inactive and had no employees; the only survivors of that corporation were Fulton and his wife. Fulton was the only person who had keys to the truck and who could give permission for it to be driven or operated.

VICO issued its policy insuring Fulton’s private passenger vehicles garaged at his house. Even if the vehicle was “non owned” it was still excluded under VICO’s Exclusion No. 7, relative to using a vehicle while engaged in a business or occupation, which reads as follows:

“7. For any person maintaining or using any vehicle while that person is employed or otherwise engaged in any business or occupation not described in Exclusion 6. This exclusion does not apply to the maintenance or use of a pick-up, sedan delivery or panel truck that you own.”

At the time of the accident, Fulton and Ming were engaged in the business or occupation of AHC and in the job of moving furniture that Fulton owned individually. Fulton and Ming cannot argue that the accident was not “business” related since Ming has successfully filed a workmen’s compensation claim and was paid compensation benefits; he was also being paid by his employer, AHC, to work overtime.

The case of Battle v. Coleman, 336 So.2d 140 (Fla.1st DCA 1976) supports VICO’s position relative to the business exclusion. The insured was a member of a band and was driving a van used by the band and which was equally owned by the band members. The van was titled in the name of a friend of the leader of the band. The court held that both the “used in the insureds business or occupation” and “furnished for regular use” exclusions were valid as the van, at the time of the accident, was being driven by the insured who regularly drove the van while engaged in his business or occupation. The court, at page 141, stated:

“It would be grossly unreasonable to think that either the insured or the insurer, upon the issuance of the liability insurance policy covering Coleman’s private automobile, contemplated that such coverage extended to the vehicles equitably owned and operated by Coleman and his fellow band members in pursuit of their business.”

CONTINENTAL’S HOMEOWNER’S POLICY

We find no coverage under this policy for the following reasons:

This policy provides coverage for personal liability to third parties. The policy contains an exclusion which specifically precludes coverage for the “maintenance”, “operation” or “use” of a motor vehicle. The exclusion reads as follow:

This policy does not apply:
... a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
... (2) any motor vehicle owned or operated by, or rented or loaned to any Insured. . .” (emphases supplied)

The attempt to start the truck by pouring gas into the carburetor, which resulted in the ignition of the gas, involved the “maintenance” of the vehicle within the terms of this exclusion.

The term “maintenance” has recently been so interpreted by the Fourth District Court of Appeal in connection with a homeowner’s policy exclusion similar to Continental’s. Indiana Insurance Co. v. Kip Winston, 377 So.2d 718 (Fla.4th DCA 1979). There, the plaintiff assisted the defendants in removing the hood of a car to modify it to accommodate an air scoop. The hinges remained attached to the car and they were depressed by defendants in the position they would have been if the hood were closed. Plaintiff leaned on the vehicle and suddenly one hinge released, striking him in the eye. Plaintiff sued the automobile carrier, which covered “maintenance” of the vehicle, and the homeowner’s insurer, which excluded “maintenance” of the automobile. In finding that the exclusion applied, the court stated that “... we do not believe an ambiguity exists here”. The court further held that:

“Thus, as a general proposition, it can be said that but for the maintenance of the hood hinge, an integral part of the automobile involved herein, the injury would not have occurred.
Finally, while we acknowledge that the injured party in this case was not himself actively engaged in the maintenance of the car at the time of the injury, we still believe his injury arose from a condition created during the maintenance of the vehicle. The term ‘maintenance’ has been defined as the labor of keeping something in a state of repair or efficiency. See Truck Ins. Exchange v. Aetna Cas. & Sur. Co., 13 Wash.App. 775, 538 P.2d 529 (1975) and cases cited therein. Appleman, in his treatises, indicates that the term maintenance would seem to include acts of either commission or omission relative to the external or mechanical condition of a vehicle. 6B Appleman, Insurance Law and Practice, Sec. 4315, p. 339. We find that the control and subsequent placement of the hinge played an inseparable role in the installation of the air scoop, whose installation can be defined as the maintenance of the automobile (i. e., it keeps the vehicle in a state of efficiency).”

Here, as in Winston, supra, but for the maintenance of the carburetor, the injury to Ming would not have occurred. In addition, it was not necessary for Ming to participate in the actual pouring of the gas into the carburetor for the exclusion to apply. The section of Appleman, cited by Winston, also provides that:

“ ‘Maintenance’ covers all acts which come within its ordinary scope and meaning. ... Similarly, negligence in cleaning the automobile or in negligent use of the carburetor would be covered under this rule.”
7 Appleman, Insurance Law and Practice § 4315 (emphasis supplied)

Since the term “maintenance” was held to be unambiguous, authorities using that term with reference to an automobile policy’s insuring clause are also persuasive.

If pouring gas into a carburetor involves its maintenance for purposes of an insuring clause, the same definition would exist for an exclusion because the term is not ambiguous. Winston, supra. Accordingly, since the pouring of gas in the carburetor was done for the purpose of starting the truck, resulting injuries suffered by Ming arose out of the maintenance of the vehicle.

The attempt to start the truck constitutes a “use” of the vehicle. In this connection, see: National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla.3d DCA 1971). There, a dog bit the plaintiff while being transported in an automobile. The automobile liability carrier appealed a summary judgment against it which found coverage for an accident under its insuring agreement containing the language “... arising out of the ownership, maintenance or use of the automobile”. In addition, the trial court granted a summary judgment in favor of the insurer, which issued a homeowner’s policy excluding “maintenance”, “operation” or “use” of a vehicle. In affirming the trial court’s orders, we reasoned that:

“ ‘Use’ extends to any activity involved in the utilization of the covered vehicle in the manner intended or contemplated by the insured. St Paul Fire & Marine Ins. Co. v. Hartford Acc. & Indem. Co., 244 Cal.App.2d 826, 53 Cal.Rptr. 650.
Appellant contends that there is a distinction between the construction of basic coverage provisions which obtains in its automobile liability policy, and exclusions or exceptions to coverage in Gulf’s homeowner’s policy, and a stricter rule of construction applied when coverage is excluded.
We accept appellant’s premise that exclusionary clauses are narrowly construed against the insurer but reject the attempted application to this case, observing that while rules of construction are applied where there is doubt or ambiguity, plain language requires no construction.
We conclude that the injury involved in this case arose out of the use of the automobile and within the coverage afforded by appellant’s liability policy. Thus it follows that Gulf’s policy does not afford coverage.”

If a dog bite suffered inside a car involves a “use” of the car excluded by a homeowner’s policy, there is further justification for holding that the act of attempting to start the truck by putting gas into the carburetor is a “use” of the vehicle within the exclusion. In this regard, see also Atkins v. Bellfonte Insurance Co., 342 So.2d 837 (Fla.Sd DCA 1977). There, a child was struck by an automobile owned by a school. The school allegedly was negligent in allowing the minor to escape from the school and in improperly handling him in returning to the school. Under these allegations, the trial court dismissed the school’s insurer, whose policy contained an exclusion for the “maintenance”, “operation” or “use” of an automobile. We affirmed, holding that:

“.. . plaintiff’s damages resulted from the use of a motor vehicle. Not only was the plaintiff’s damage a primary consequence of the School’s use of the motor vehicle, but also it could not have occurred without the use of the School’s motor vehicle.”

In the present case, the gas would not have been ignited and thrown at Ming without the use of the vehicle. The Fourth District Court of Appeal, in National In demnity Co. v. Corbo, supra, also held that the term “use” is not ambiguous. Therefore, authorities interpreting the term in the context of an insuring clause are again persuasive.

CONTINENTAL’S SMP POLICY

Further, we do not find coverage under this policy, issued to Fulton, P.A., for the following reasons:

The insuring agreement is found in Section II, Coverage C, which provides, in part, as follows:

“. . . caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises ...”

The accident which occurred in this case did not involve ownership, maintenance or use of the premises of Fulton’s P.A. (the named insured) and it was not incidental to the business of Fulton’s P.A. Instead, it was incidental to AHC’s business and Fulton’s private purposes.

In Peirson v. American Hardware Mutual Insurance Co., 249 N.C. 580, 107 S.E.2d 137 (1959), an insured sued its insurer under a “Garage Liability Policy” to recover medical expenses paid by him for injuries suffered by the insured’s wife in an automobile accident. The policy was issued to a retail hardware business and to a retail farm equipment business. The automobile involved in the accident was owned by the insured and used for personal and business transactions. At the time of the accident, the car was being used for personal purposes. The policy contained an insuring clause which provided coverage for the ownership, maintenance or use of the premises for the purpose of a service station or garage and all operations “. .. necessary or incidental thereto... ”. In finding that there was no coverage, the court stated that:

“Incidental, obviously, means depending upon or appertaining to something else as primary. . . . Incidental, in my view, means incident to the main purpose of the main business.
“. .. the definition of incidental in Black’s Law Dictionary: Depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose.
“Since plaintiff’s automobile was not used principally in the business of repairing, servicing, etc., for which protection is provided by the policy and the mercantile business operated by plaintiff as an individual is neither necessary nor incidental to the business of repairing, servicing, and storing protected by the policy; it follows that, upon established facts, no liability rests on defendant.”

The moving of materials for AHC and furniture for Fulton are not incidental to the business of Fulton’s P.A. There is no coverage. This was issued to James E. Fulton, Jr., P.A. Dr. Fulton’s professional association was not sued in this case. Under the policy definition of “Persons insured”, the following appears:

“Each of the following is an insured under this insurance to the extent set forth below:
(c) If the named insured is designated in the Declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, member of the board of trustees, directors or governors or stockholders thereof while acting within the scope of his duties as such;...”

Accordingly, Fulton would be a named insured as an officer of the P.A. “. . . while acting within the scope of his duties as such;.. . In the present case, Fulton was not performing duties for the professional association at the time of the accident. Instead, he was starting a truck owned by Fla. Growers, which was going to be used to transport personal items as well as materials belonging to AHC. There is no coverage under the SMP policy.

Ming contends this case is controlled by Daleo v. Bert & Betty Bayfront 66 Marine, 273 So.2d 113 (Fla.3d DCA 1973), quashed on other grounds in 282 So.2d 169 (Fla. 1973). We have considered this opinion at length and cannot distinguish it on the facts. We therefore recede from this opinion and decision by holding, as indicated, that the injury to Ming did arise out of the “maintenance” or “use” of a motor vehicle. We realize that the Daleo opinion dealt with the “operation” as distinguished from “maintenance” or “use”, although these terms were contained in the same exclusion discussed in that opinion. We do not think that this is a significant difference which would make this case distinguishable on the facts. Therefore, as indicated, we recede from said decision.

In appeal No. 79 — 2330, we reverse the declaratory judgment finding coverage against VICO, with directions to discharge VICO from any liability.

In appeal No. 80-60, we affirm the final judgment in favor of Ming for $350,000.00 against the defendant, Fulton, and reverse as to Continental because of our holding in Case No. 80-202.

In appeal No. 80-202, we reverse the declaratory judgment finding insurance coverage by Continental, with directions to discharge Continental from all liability under both its homeowner’s policy and its Special Multi-Peril policy.

Affirmed in part, reversed in part, and remanded with directions.

      . Cosmopolitan was the compensation carrier for AHC.

      . The cause did not proceed against Fla. Growers as the owner of the truck. This party was dismissed by plaintiff prior to trial.

      . We find no error in the trial court denying this motion for new trial, as it was well within his discretion, the motion coming after trial and attempting to allege a new affirmative defense. See: Maryland Casualty Company v. Murphy, 342 So.2d 1051 (Fla. 3d DCA 1977).

      . See and compare: Seaboard Fire and Marine Ins. Co. v. Gibbs, 392 F.2d 793 (4th Cir.1967); Wasilko v. Home Mutual Casualty Company, 210 Pa.Super. 322, 232 A.2d 60 (Pa.1967).

      . A “stake” truck is not a “pick-up, sedan delivery, or panel truck”.

      .See: McRae v. Snelling, 303 So.2d 670 (Fla.4th DCA 1974); Employers' Liability Assurance Corporation v. Owens, 78 So.2d 104 (Fla. 1955).

      . See and compare: Chase v. Dunbar, 185 So.2d 563 (La.App.1966); United Mutual Fire Insurance Co. v. Jamestown Mutual Insurance Co., 242 App.Div. 420, 275 N.Y.S. 47 (1934); 7 Appleman, Insurance Law and Practice, § 4315.

      . Liberty Mutual Ins. Co. v. O’Rourke, 122 N.J. Super. 68, 298 A.2d 725 (1973); United Services Automobile Association v. United States Fire Insurance Co., 36 Cal.App.3d 765, 111 Cal.Rptr. 595 (1974).

      . See and compare: Liberty Mutual Ins. Co. v. O’Rourke, 122 N.J.Super. 68, 298 A.2d 725 (1973); United Services Automobile Association v. United States Fire Insurance Co., 36 Cal.App.3d 765, 111 Cal.Rptr. 595 (1974).

      . Even if Fulton were deemed to be an insured under the policy, coverage is precluded by the following exclusion:
      “This insurance does not apply.

      (b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
      (1) any automobile or aircraft owned or operated by or rented or loaned to any insured. .." (emphasis supplied)
      In the present case, the truck was loaned to Dr. Fulton by Fla. Growers. In addition, as noted earlier in this opinion, the accident arose out of the maintenance or use of a vehicle.

      . This was a two-to-one decision. In shepard-izing this case, we have found that it has been cited several times for the proposition that ambiguities in an insurance policy are to be resolved in favor of the insured and against the insurer. However, it has never been cited for the proposition that the meaning of the word “operation” contained in the exclusions of an insurance policy was ambiguous and therefore coverage was to be afforded the insured.


author: BERANEK, Judge.

text:
    James HILL and South Florida Aircraft Sales and Leasing, Inc., Appellants, v. WALKER’S CAY AIR TERMINAL, INC., f/k/a Hansa Jet, Appellee.
    No. 80-1464.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Nov. 10, 1981.

      Mark R. Boyd and Gilbert E. Theissen of Walsh, Theissen & Boyd, P. A., Fort Laud-erdale, for appellants.
    Pyszka & Kessler, Fort Lauderdale, and Larry Klein, West Palm Beach, for appel-lee.
   BERANEK, Judge.

James Hill and South Florida Aircraft Sales and Leasing, Inc., owned an airplane which was damaged when it crashed while landing at Walker’s Cay, an island in the Bahamas. The owners of the airplane had allowed Walker’s Cay Air Terminal, Inc., to use the plane to fly food from Fort Lauder-dale to Walker’s Cay. The terms of the agreement are in dispute. The plane was flown by a free lance pilot named Richard Johnsen, who was not a regular employee of either the owners of the plane or Walker’s Cay. After the crash, Hill and South Florida Aircraft Sales sued Walker’s Cay Air Terminal, Inc., for damage to the plane. A jury found in favor of Walker’s Cay on the claim and concluded Walker’s Cay was not responsible. At issue during the trial was the status of the pilot and whether he was acting as an agent of the owners or on behalf of Walker’s Cay.

We note the suit was not tried on a theory of bailment. Instead, the theory of recovery was that Johnsen was an agent of Walker’s Cay when he negligently crashed the plane. Johnsen was not a party to the suit as it went to trial. One of the defenses asserted by Walker’s Cay was that Johnsen was an independent contractor rather than an employee and that Walker’s Cay thus was not responsible. In accordance with this theory, the trial court instructed the jury that an employer is not responsible for the negligence of an independent contractor. We are not certain that labeling the pilot an independent contractor should absolve Walker’s Cay from liability if this independent contractor negligently crashed the plane; however, this is not questioned on appeal. Instead, appellants assert the trial court erred in refusing to instruct the jury as to the ultra-hazardous work exception to the rule of non-liability for independent contractors. See Florida Power & Light Company v. Price, 170 So.2d 293 (Fla. 1964); Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla.3d DCA 1978); and Florida Standard Jury Instruction (Civ.) 3.3(c), Ultra-hazardous work (exception to non-liability for negligence of independent contractor).

Under the circumstances of this case, we conclude the court erred in denying the appellants’ requested instruction on ultra-hazardous work. Whether the activity was ultra-hazardous was a factual question for the jury. Here, the parties agree that under normal circumstances Walker’s Cay would not be liable if Johnsen was serving as an independent contractor. We do not rule on the correctness of this appellate position but merely conclude that if it is to be the law of the case, then the court should have also instructed on the ultra-hazardous work exception as requested by appellants.

The cause is thus reversed and remanded for a new trial.

DOWNEY, J., and OWEN, WILLIAM G, Jr., Associate Judge, concur.


author: NESBITT, Judge.

text:
    Shirley KICKASOLA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1775.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Rehearing Denied Oct. 28, 1981.
    Bennett H. Brummer, Public Defender and Lance R. Stelzer, Sp. Asst. Public Defender, for appellee.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   NESBITT, Judge.

The defendant appeals her judgment of conviction for possession with intent to sell methaqualudes contrary to Section 893.-13(1), Florida Statutes (1979) [Count I]; and actual or constructive possession of me-thaqualudes contrary to Section 893.-13(l)(e), Florida Statutes (1979) [Count II].

As to Count I, which charged the defendant with possession with intent to sell, Section 893.13(l)(a), Florida Statutes (1979) provides in pertinent part:

Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to seil, manufacture, or deliver, a controiied substance, [emphasis supplied]

Count I did not charge the defendant with the mere sale of methaqualudes.

Likewise, in Count II, the defendant was charged pursuant to Section 893.13(l)(e), Florida Statutes (1979), which in pertinent part provides:

It is unlawful for any person to be in actual or constructive possession of a controlled substance .... [emphasis supplied]

In both counts, possession is an essential element of the offense charged.

The defendant contends that the evidence is insufficient as to this essential element and therefore her conviction should be reversed. We agree.

The defendant was a visitor to the residence of a co-defendant when an undercover policeman and confidential informant arrived at the home to purchase methaqua-ludes. The agent testified that when they were met at the door by the defendant, the informant asked for “the guy by the name of Chips who was supposed to sell me qua-ludes.” The agent was escorted to the co-defendant’s bedroom by the defendant who, after introducing the agent to the co-defendant, left the room. An agreement was reached whereby the undercover agent would purchase 300 methaqualudes from the co-defendant. The co-defendant got up to obtain a set of keys and tried several of them before opening the tool box in which the methaqualudes were located. After a sample of the methaqualudes was delivered to the agent for inspection, the defendant returned to the bedroom. As she watched the rest of the transaction, she inquired of the undercover policeman:

Is that all you’re going to buy, 300 ludes? Why don’t you buy them all?

The state contends that as a result of these actions the defendant maintained constructive possession of the methaqualudes. One of the leading cases which establishes the minimum criteria to support a conviction for possession of a controlled substance is Spataro v. State, 179 So.2d 873 (Fla.2d DCA 1965) where the court stated:

The accused has “constructive possession” of a chattel where he has knowledge of its presence coupled with the ability to maintain control over it or reduce it to his physical possession, even though he does not have actual personal dominion, [emphasis supplied]

179 So.2d at 877. In Frank v. State, 199 So.2d 117 (Fla.1st DCA 1967), the court stated:

If the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drugs’ presence on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the drugs’ presence on the premises.

199 So.2d at 120.

Because proof of possession in this case rested exclusively upon circumstantial evidence, that proof must not only be consistent with guilt but also inconsistent with any reasonable hypothesis of innocence. Peek v. State, 395 So.2d 492 (Fla.1980). Evidence which furnishes nothing stronger than a suspicion, even though it tends to justify the suspicion that the defendant committed the crime, is insufficient to sustain a conviction. Davis v. State, 90 So.2d 629 (Fla.1966). As demonstrated by the facts as set forth in the instant case, the evidence of defendant’s ability to maintain control over the contraband is too ambiguous, when gauged by the circumstantial evidence rule, to demonstrate constructive possession of the methaqualudes. The case is much like Taylor v. State, 319 So.2d 114 (Fla.2d DCA 1975) where the court found that proximity to the contraband, while consistent with the hypothesis that defendant had an ability to control it, was subject to the equally reasonable hypothesis of innocence. Here, the only additional evidence favorable to the state was the statement by the defendant when she returned to the bedroom, “Is that all you’re going to buy, 300 ludes? Why don’t you buy them all?” The defendant’s offer to sell the methaqua-ludes was entirely too ambiguous to reflect any dominion and control over them. We are not called upon to determine whether her offer to sell would have been sufficient to sustain a conviction as an aider and abettor, pursuant to Section 777.011, Florida Statutes (1979) as the defendant was not charged with the sale of methaqualudes. However, the law is clear that one is not guilty of possession by virtue of aiding and abetting a sale. Daudt v. State, 368 So.2d 52 (Fla.2d DCA 1979). See also, Stephenson v. State, 371 So.2d 554 (Fla.2d DCA 1979).

There was no showing that the defendant had free access to the bedroom where the methaqualudes were located or that she had access to either the tool box in which the contraband was located or the key to open it.

In this case, possession of contraband was a material element of the charges. The circumstantial evidence presented by the state was insufficient to establish the defendant’s constructive possession of the me-thaqualudes. Consequently, the defendant’s judgment of conviction is reversed and remanded with directions to discharge her from custody.

Reversed and remanded.


author: PER CURIAM.

text:
    Raymond E. McCONNELL, Appellant, v. STATE of Florida, Appellee.
    No. 79-830.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Richard L. Jorandby, Public Defender, Douglas N. Duncan, Legal Intern, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment herein is reversed on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980), and the cause is remanded for a new trial.

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


author: HURLEY, Judge.

text:
    NORTH AMERICAN PHILIPS CORPORATION, INC., Appellant, v. Bryan G. BOLES, Appellee.
    No. 79-1519.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Rehearing Denied Nov. 10, 1981.
    L. Louis Mrachek of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellant.
    Donald J. Freeman of Beverly & Freeman, West Palm Beach, for appellee.
   HURLEY, Judge.

The suit below was an action to enforce a stock option agreement. After a bench trial, the court ruled for the plaintiff, finding that “Boles properly exercised his stock option ... by complying with all conditions precedent ..., or the conditions precedent were waived . . .. ” Appellant/defendant contends that the trial was infected with reversible error when the court overruled appellant’s objection and admitted testimony relating to waiver of the conditions precedent, an issue which appellant suggests was not framed by the pleadings. We agree and, consequently, reverse.

Boles filed a two count complaint asking for damages or specific performance of the stock option agreement. The defendant answered and asserted three affirmative defenses, one of which was that Boles had not fulfilled certain conditions precedent. Boles, in turn, filed a pleading styled, “Reply to Affirmative Defenses,” which denied the affirmative defenses.

At trial, Boles introduced a letter from his attorney addressed to defendant’s predecessor-corporation wherein he sought to exercise the stock option agreement. Unquestionably, the letter does not satisfy all of the conditions precedent required by the agreement, however, Boles took the position that strict compliance had been waived due to certain action by the defendant corporation. Defense counsel objected to this line of testimony on the ground that it was irrelevant to the issues framed by the pleadings. The court overruled the objection and ultimately entered a verdict for the plaintiff.

Rule 1.100(a), Fla.R.Civ.P., provides in pertinent part:

If an answer . . . contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance. (Emphasis supplied.)

The Supreme Court traced the evolution of Rule 1.100(a), Fla.R.Civ.P., in Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla. 1975), and, after an extensive review of a commentary by one of the draftsmen, the court held that matters constituting an avoidance of an affirmative defense “must be set forth in a reply pleading.. .. ” Id. at 661. The rationale for this requirement is that “[t]his is necessary in order to lay a predicate for such proofs so that the parties may prepare accordingly.” Id. Indeed, the committee note to the 1972 amendment which added the provision in question to Rule 1.100(a) explains that “[t]he change makes a reply mandatory when a party seeks to avoid an affirmative defense.... ” 30 Fla.Stat.Ann. 29 (Supp.1981). See American Salvage and Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla.3d DCA 1974).

Long ago we abandoned rigid pleading requirements in favor of simplified rules which comport with due process. The case at bar, however, illustrates the fatal danger of not satisfying the rule’s minimal requirements. By failing to specially plead avoidance and by only interposing a denial, the plaintiff allowed pre-trial preparation to center on the stock option agreement and those steps which the plaintiff took to seek its enforcement. Yet, with the introduction of the testimony at issue, the focus of the trial suddenly shifted to the conduct of the defendant .. . what it had said or done to excuse plaintiff’s performance of the conditions precedent. In truth, this was a blind issue which veered into the midst of the trial without warning and without an opportunity to negate. Its prejudice to the defendant is evident since it formed the basis of the court’s verdict. Thus, we hold that the admission of this testimony over objection is so antithetical to basic notions of fairness as to constitute reversible error.

Since the foregoing is dispositive of the case, we do not reach the issue of the competency of the plaintiff’s testimony regarding a Mrs. Gunderson. Though the court initially sustained defense counsel’s objection, it receded from its ruling with the following remarks:

Well, now, we will be here for about two weeks if we don’t get down to the point. Your objection is I think technically correct. I don’t think it is important. His understanding why he didn’t get his option exercised is what the answer obviously will be. I think he is entitled to say what it is.

(Tr.17). It is now clear that the objected-to testimony is crucial to the case and, at retrial, it will be incumbent upon the court to make an initial determination as to its competency.

Accordingly, the cause is reversed and remanded for a new trial.

MOORE and BERANEK, JJ., concur.


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    CITY OF NORTH MIAMI BEACH, Joined by Intervenors City of Sweetwater and Town of North Bay Village, Appellants, v. METRO DADE COUNTY, a political subdivision of the State of Florida, and Joyce Dieffenderfer as Supervisor of Elections of Metropolitan Dade County, Florida, Appellees.
    No. 80-2415.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 12, 1981.
    Sidney B. Shapiro, City Atty., North Miami Beach, Joseph H. Weil, Miami, Walter S. Pesetsky, North Miami Beach, for appellants.
    Robert A. Ginsburg, County Atty., and James K. Kracht, Asst. County Atty., for appellees.

      Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BARKDULL, Judge.

Plaintiff in the trial court, City of North Miami Beach, and intervenors, City of Sweetwater and Town of North Bay Village, appeal from an amended final judgment entered in favor of Metropolitan Dade County, which held that an ordinance creating a special taxing district countywide for fire and rescue services was valid, and thereby denied certain injunctive relief sought. The amended judgment read, in part, as follows:

“This cause came on to be heard at final hearing on plaintiffs’ complaint for in-junctive relief and a declaration of the rights of the plaintiff City of North Miami Beach. Argument having been heard and documentary evidence having been considered, this Court hereby makes the following finding of fact and conclusions of law:
1. Section 1(e) of the Dade County Home Rule Amendment provides the underlying constitutional power for the creation of special taxing districts within Dade County. The Dade County Charter Section 1.01(A)(11) implements this constitutional power and provides that the Board of County Commissioners, as the legislative and governing body of Dade County, shall have the power to establish special purpose districts which may provide essential facilities and services, including fire protection services.
2. Pursuant to this constitutional and charter authority, the Dade County Commission, after second reading on September 2, 1980, adopted Ordinance No. 80-86 creating Article II of Chapter 18 of the Dade County Code. This ordinance became effective after overwhelming approval by the registered voters of Dade County, including the voters of plaintiff City of North Miami Beach, voting at the special referendum election held on September 9, 1980.
3. Ordinance No. 80-86 creates a countywide Metro-Dade Fire and Rescue Service District as a means to ensure that all residents within the County fairly contribute toward the cost of fire and rescue service they receive. The District will provide a fair, equitable and uniform mechanism for the delivery and funding of fire and rescue service throughout Dade County.
4. Prior to the enactment of Ordinance No. 80-86, the County was providing fire and rescue service for the unincorporated area of Dade County and 20 municipalities within the County which had determined that it would be more economical, effective and beneficial to utilize the County’s fire and rescue service. Five municipalities were providing their own fire protection and rescue service.
5. Ordinance No. 80-86 was enacted after and in response to an extensive analysis and review of the provision of fire and rescue service within Dade County by Price, Waterhouse & Co. As a result of its study, Price, Waterhouse & Co., concluded that dual taxation existed with respect to fire protection and rescue service. It specifically found that the five cities providing their own fire and rescue service, representing 40% of the County’s population and containing 37% of the assessed value of property in the County, were paying 10% of the costs of operating the County’s fire protection and rescue service while receiving no benefits therefrom. The 20 municipalities not providing their own fire and rescue service (including plaintiff City of North Miami Beach), representing 12% of the County’s population and containing 13% of the assessed value of property in the County, were paying only 3% of the costs of operating the County’s fire protection and rescue service while receiving 20% of said service. The unincorporated area of Dade County, representing 48% of the County’s population and containing 50% of the assessed value of property in the County, was paying 87% of the costs of operating the County’s fire protection and rescue service, while receiving 80% of said service. This study was commissioned in response to the petition of three municipalities and the Dade County League of Cities, Inc., filed with the Dade County Commission pursuant to § 125.-01(6), Fla.Stats., and identifying fire and rescue service as an area of dual taxation.
6. Pursuant to the provision of Ordinance No. 80-86 any municipality which does not wish to receive service from the District may provide an alternate means of delivering fire and rescue service to its residents and remove itself from the District.
7. Pursuant to the provisions of Ordinance No. 80-86 the Metro-Dade Fire and Rescue Service District is to be governed solely by the provisions of Article II of Chapter 18 of the Dade County Code.
8. Prior to the enactment of Ordinance No. 80-86, plaintiff City of North Miami Beach had transferred its fire department to and was receiving fire protection and rescue service from Dade County pursuant to an agreement with the County wherein the County agreed to provide fire protection and rescue service to the City of North Miami Beach.
9. Section 18 of this agreement states: ‘The County will not establish a special taxing district for fire services provided to the City or any portion thereof.’ This section must be interpreted and applied in accordance with public policy to promote the protection of the public welfare and to ensure compliance with constitutional and statutory requirements. This Court is of the opinion and here finds that this section of the Agreement does not prevent and is not in conflict with Ordinance No. 80-86 which created the countywide Metro-Dade Fire and Rescue Service District. Section 18 only prevents the County from taking over fire and rescue service from the plaintiff City of North Miami Beach and then established a special taxing district solely encompassing the City to provide such service and defray the costs therefor.
10. If this Court were to interpret Section 18 of the Agreement so as to prohibit the defendant County from establishing this countywide district to remedy the constitutionally prohibited situation of dual taxation, such interpretation would be unlawful and void as the County is precluded from contracting away its power to tax.
11. Recognizing the significance and importance of the resolution of the issues raised in this litigation to those municipalities providing their own fire and rescue service as well as to those municipalities which have utilized County service, the Court hereby authorizes and accepts the intervention in this action of all municipalities present and further finds that the interests of the municipalities of Dade County were fully and adequately represented by those municipalities present at the final hearing in this cause.”

We find no error and affirm. Metro-Dade County, pursuant to Article VIII, Section 11, Constitution of the State of Florida (1885), carried forward under the Constitution of 1968, Article VIII, Section 6(e), had the power to adopt a charter which provided for uniform emergency fire and rescue service. This it did in the Metro Home Rule Charter, Article 1, Section 101(a)(ll). The procedure employed to enact the ordinance was appropriate. We find no violation of the contracts with the several municipalities because the contracts were subject to the interpretation given by the trial court that the prohibition contained therein related only to a taxing district, which would have encompassed only the contracting municipality or a portion thereof. The ordinance, as adopted, encompassed the entire County and therefore we find it did not violate the express provisions of the contract. However, if the contract provisions relating to no taxing districts should be construed as prohibiting any and all special taxing districts, including the respective municipalities, then such an agreement or covenant on the part of County officials would be ultra vires and of no force and effect.

It has long been held that a governing unit, be it county or municipality, may not contract away its right to tax for government purposes. In Lykes Brothers, Inc. v. City of Plant City, 354 So.2d 878 (Fla.1978), the Florida Supreme Court stated:

“As to whether a city’s tax exoneration contract is valid, our decisions uniformly hold that municipal contracts promising not to impose taxes, or granting tax exemptions, are ultra vires and void in absence of specific legislative authority. See, e. g., Tampa Shipbuilding & Engineering Co. v. City of Tampa, 102 Fla. 549, 136 So. 458 (1931), and City of Tampa v. Kaunitz, 39 Fla. 683, 23 So. 416 (1898).”

Compare: City of Safety Harbor v. City of Clearwater, 330 So.2d 840 (Fla.2d DCA 1976).

Therefore, for the reasons above stated, the amended final judgment here under review be and the same is hereby affirmed.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my view, the creation of a special taxing district for fire fighting services was in unequivocal and unexcused violation of the county’s agreements with the appellant municipalities, by which it was bound, see Interair Services, Inc. v. Insurance Co. of North America, 375 So.2d 317 (Fla.2d DCA 1979), and which — because they did not provide for exemptions from general ad valo-rem taxation, but only from the imposition of a special assessment in return for valuable consideration which has already been transferred — were valid and enforceable. Coit v. City of Grand Rapids, 115 Mich. 493, 73 N.W. 811 (1898); see, Spoerl v. Pennsauken Tp., 14 N.J. 186, 101 A.2d 855, 857 (1954), and cases collected. I would therefore reverse the judgment below.

      . North Bay Village and City of Sweetwater were permitted to intervene because they had also turned their fire departments over to the County under similar agreements.

      . Upon a motion for clarification, the trial judge reserved the right of the municipalities to bring breach of contract actions in words and figures as follows: “.. . this Court rules that it is not the intention of the Amended Final Judgment to preclude the plaintiffs and/or Interve-nors from subsequently asserting any claim they might have for breach of contract, provided such allegations are properly pleaded and proved.”


author: HENDRY, Judge.

text:
    Gena W. KIRBY, Appellant, v. John McKinley KIRBY, Appellee.
    No. 80-2308.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 12, 1981.

      Gena W. Kirby, in pro. per.
    John McKinley Kirby, in pro. per.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

In this action for past due child support payments, plaintiff Gena Kirby, appellant herein, challenges an order denying her a judgment for arrearages based on her failure to comply with visitation orders.

The parties separated in 1975 while both were North Carolina residents. By order of May 1, 1975, the North Carolina Superior Court awarded appellant support for the parties’ three minor children then in her custody. Thereafter, appellee moved to Florida. On October 29, 1975, the North Carolina court entered judgment for monies past due on the previous order. In February, 1976, appellant successfully registered the two foreign support orders in the Dade County Circuit Court under section 88.351 of the Uniform Reciprocal Enforcement of Support Act (URESA). On June 21,1977, a final judgment of dissolution of marriage was entered in the circuit court and all proceedings on any orders or judgments previously entered by the court were stayed pending a hearing. The dissolution decree ordered appellee to pay child support in the amount of $100 per month. A succession of motions have been filed by the parties in the past few years, culminating in the order which is the subject of this appeal. On November 20, 1980, the circuit court directed appellee to pay appellant $475 per month for child support, and discharged arrearages accumulated prior to September 1, 1980 in the sum of $3,300 because appellee was denied visitation with the children.

Appellant contends that the trial court abused its discretion in setting aside the arrearages, arguing that enforcement proceedings for support under URESA may not adjudicate visitation rights or other issues. Citing Grosse v. Grosse, 347 So.2d 1099 (Fla. 2d DCA 1977), and Vecellio v. Vecellio, 313 So.2d 61 (Fla. 4th DCA 1975), appellant argues that the only matter susceptible of adjudication in a URESA action is the duty of support. Were this a pure URESA action we would be inclined to agree with appellant’s position. However, visitation rights are properly considered in a post-decretal child custody and support proceeding in conjunction with dissolution of marriage. Ray v. Pentlicki, 375 So.2d 875 (Fla. 2d DCA 1979).

In the instant case, the URESA and dissolution actions have been consolidated to avoid any variance in orders entered, and to effectuate the purposes of both Chapter 61 and Chapter 88. See Ray v. Pentlicki, supra. The remedies provided by the URESA statute are in addition to and entirely separate from and independent of any remedies existing under other applicable provisions of law. § 88.012, Fla.Stat. (1979). Thus, the trial judge simply exercised the full range of authority available to him in determining the relative rights and obligations of the parties. The court’s finding, moreover, that appellant wilfully refused to comply with its order directing her to allow the children to visit with their father (which finding is amply supported by the record), is an extraordinary circumstance justifying the discharge of the past due amounts. Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977). See also Panganiban v. Panganiban, 396 So.2d 1156 (Fla. 2d DCA 1981).

We conclude that the trial court acted within its continuing power to modify the final judgment of dissolution in dismissing the arrearages as a result of appellant’s willful refusal to comply with visitation orders. Accordingly, the order under review is affirmed.

Affirmed.

      . Both parties have represented themselves on this appeal.

      . A circuit court has continuing jurisdiction under § 61.13, Florida Statutes (1979), to modify an award of child support in a final judgment of dissolution of marriage.


author: BASKIN, Judge.

text:
    Lois E. FODEN, Petitioner, v. Aida Reyes STAMBAUGH and Industrial Fire and Casualty Insurance Company and Ford Motor Company, Respondents.
    No. 80-393.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 12, 1981.
    Joe N. Unger, Miami, for petitioner.
    Goodhart & Rosner, Jeanne Heyward, Dixon, Dixon, Hurst, Nicklaus & Webb, Miami, for respondents.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   BASKIN, Judge.

We grant certiorari and quash the order compelling petitioner to execute settlement documents entered by the trial court upon our holding that the record fails to support the trial court’s finding that petitioner authorized settlement. Travelers Insurance Co. v. Horton, 366 So.2d 1204 (Fla. 3d DCA 1979); 22nd Avenue Drugs, Inc. v. Maisonneuve Investments, Inc., 313 So.2d 112 (Fla. 3d DCA), cert. dismissed, 321 So.2d 558 (Fla. 1975); State Department of Transportation v. Plunske, 267 So.2d 337 (Fla. 4th DCA 1972).

Remanded for further proceedings.


author: ORFINGER, Judge.

text:
    STATE of Florida, Appellant, v. Robert Walter BARNARD, Appellee.
    No. 80-755.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Rehearing Denied Oct. 29, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellant.
    S. G. Green, Orlando, for appellee.
   ORFINGER, Judge.

Appellee was charged with two counts of resisting arrest with violence under section 843.01, Florida Statutes (1979). The trial court granted appellee’s motion to dismiss under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, on the ground that neither deputy sheriff involved in the arrest was “in the lawful performance of [his] duty at the time of the incident.” The State appeals. The issue on appeal is whether the finding by the trial court that the deputies were not in the lawful performance of their duties is sufficient here to sustain the dismissal of the charges of resisting arrest with violence. We reverse.

The sworn motion sets forth a factual recitation upon which appellee bases his contention that the attempted arrest of ap-pellee was illegal because it was made in appellee’s home and without a warrant, relying on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Ap-pellee’s motion also recited facts which ap-pellee says clearly shows that there was no resistance with violence. The State traversed the factual recitations so we face only the question of law, viz: does a war-rantless felony arrest in a defendant’s home justify the use of force to resist such arrest?

The correct rule on the subject has been stated in Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978):

Thus, after July 1, 1975, section 843.01 must be read in pari materia with section 776.051; the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.

Id. at 1326.

The officers were in uniform when the arrest was made. They had received an official complaint that appellee had threatened persons with a firearm; thus they had probable cause to believe that appellee had committed a felony. They first talked to appellee outside his home and advised him that he was under arrest and he turned and ran into his home. The officers followed and the incident giving rise to these charges took place.

Since appellee was not justified in using force against the uniformed officers whom he knew to be law enforcement officers who had come to arrest him, Payton, does not control the result here. Although ap-pellee also asserted in his motion that there was no violence, these facts were traversed by the State, so the court cold not grant the motion on that ground. State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981).

The order granting the motion and discharging defendant is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . Appellee asserts, in effect, that since the arrest without a warrant was illegal, the officers were therefore not in the lawful performance of their duties.

      . § 776.051(1), Fia.Stat. (1979):
      A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.


text:
    Richard Oneal KRANTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1005.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Rehearing Denied Nov. 16, 1981.

      Bennett H. Brummer, Public Defender and James D. Keegan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The defendant challenges his conviction of an aggravated assault by the use of a metal pipe, committed upon one Earl Cour-teau; and the second degree murder of Charles Richard Bogart by stabbing with a knife.

Two issues are raised by this appeal. The defendant contends that, as a minimum, he is entitled to a new trial with respect to both counts because the trial court failed to compel the attendance of a material defense witness. Secondly, he contends that the adjudication of second degree murder should be reversed because the state destroyed the alleged murder weapon.

The defendant became involved in an altercation with the first victim who died of a knife wound to the stomach. A second victim was allegedly struck by the defendant with a pipe as he attempted to intercede in the quarrel. There were three witnesses to the incident; none saw the actual infliction of the stab wound although they did see the defendant strike a blow to the defendant’s stomach. A two to three inch knife was seized by the police after the defendant’s arrest. A laboratory analysis showed that the knife contained no blood. Later that knife was destroyed by police order and consequently was not available for introduction into evidence.

The murder victim’s wife was subpoenaed as a defense witness. She appeared during the first day of trial but after that day she told defense counsel that she was committing herself to a hospital. The defense counsel’s repeated requests that the court compel the attendance of this witness at trial were refused. The same witness had given a written statement prior to trial indicating that, shortly after and near the scene of the altercation, she observed the police officers pick up a larger, heavier knife with blood on it.

The defendant contends that this second knife was the murder weapon. In support of this position, he argues that a question was raised about the likelihood that the knife found on his person would have been able to penetrate the victim’s sternum. Furthermore, defendant argues that the absence of blood on the alleged murder weapon and the presence of blood on the knife seen by the victim’s wife support his position that the murder was committed by someone other than the defendant wielding this second knife. Absent the live testimony of this witness and the knife found on the defendant, the defense cannot exploit these possibilities.

The failure of the trial court to compel the attendance of the murder victim’s wife necessarily mandates reversal of the defendant’s conviction on both counts and minimally entitles him to a new trial with respect to the charge of aggravated assault. The defendant has a constitutional right to compulsory process of witnesses to produce testimony which is admissible in the cause for which he is on trial. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Green v. State, 377 So.2d 193 (Fla.3d DCA 1979), approved, 395 So.2d 532 (Fla.1981).

With respect to the defendant’s claim concerning the destruction of the alleged murder weapon, a balancing test is used in order to determine the sanction to be imposed for destruction of the alleged murder weapon. State v. Sobel, 363 So.2d 324 (Fla.1978). The materiality of the evidence as defined by United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), as well as the prejudice to the defendant must be considered. It may be, in some cases, that dismissal is the appropriate result, while in others conviction of a lesser offense is mandated. See, State v. Herrera, 365 So.2d 399 (Fla.3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979). The burden is on the state to demonstrate the absence of prejudice and the materiality of the alleged murder weapon. State v. Sobel, supra.

Clearly, the testimony of the non-attending witness, with respect to the second knife, is integrally related to the alleged murder weapon, which was destroyed. Inasmuch as her deposition has not been taken, nor has her testimony been submitted to cross-examination, it remains to be seen what the full force and effect of her statement will be. Until such time, it would be difficult to assay the result of the balancing test.

Accordingly, the defendant’s adjudications are both reversed and remanded with directions, and at a minimum, for a new trial with respect to the charge of aggravated assault.

      . The defendant was charged in Count I of the information with an aggravated battery. He was convicted of the lesser included offense of aggravated assault. It is well settled law that the conviction of a lesser included offense is an acquittal of the higher offense and therefore retrial for aggravated battery is prohibited under the principles of double jeopardy. Bradley v. State, 378 So.2d 870 (Fla.2d DCA 1979).


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

text:
    Dante DINO, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 79-1137.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Rehearing Denied Nov. 16, 1981.

      Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Defendant challenges his conviction for first degree murder on the ground that the state failed to prove premeditation. Consequently, he urges us to reduce his conviction either to a lesser degree of homicide or to manslaughter. He also argues that the court erred in refusing to suppress his pretrial statement. He maintains this judicial error must result in reversal of his conviction. We disagree and affirm.

The events surrounding the shooting of Willie Knight signaled disaster. Defendant, a financial backer and coach for a neighborhood boys’ baseball league, often invited the members of the team to his home after the games. His wife provided snacks and soft drinks for the boys. Willie Knight was one of defendant Dino’s favorites and spent a great deal of time in the Dino home, accepted as part of the family.

During a baseball game earlier in the evening of the shooting, however, defendant took Willie Knight out of the game because he had been misbehaving. He told Willie Knight that he would “never see another baseball in his life.” After the game, the team went to defendant Dino’s house. Pizzas were ordered and the boys wiled away the time by examining defendant’s unloaded guns. When Willie Knight rode up on his bicycle to join the group, defendant Dino pointed a gun at him; Willie Knight ignored the gesture and entered. Later, when another boy arrived at the house, defendant Dino pointed an empty .357 magnum at his head and jokingly accused him of being a burglar, remarking “you can get shot that way.” While waiting for Mrs. Dino to return to the house with the pizza, Willie Knight stated that he was going to scare her. Dino told Willie Knight that he would kill him if he did. Knight disregarded the warning and hid, making a noise when Mrs. Dino arrived but failing to frighten her. Shortly thereafter, while everyone was laughing and having a good time, Mrs. Dino went into the kitchen to prepare the pizza. The boys continued to inspect the guns. Defendant Dino walked back into his bedroom and returned to the dining room with a .38 caliber pistol. He walked up to Willie Knight and pointed the pistol at the boy’s temple. Without uttering a word, he fired a single shot at a distance of one to three inches from Willie Knight’s head. After the shooting, defendant Dino shouted to his wife to call an ambulance. One witness testified that Dino said to the boys, “You did not see nothing”, but another witness denied the statement had been made.

When Opa Locka police officers arrived at the Dino home, Dino told Officer Love that while he had been showing the boys his unloaded magnum, Knight picked up a loaded .38, which discharged when he tried to take it away from Knight. It was this statement, later repeated to Detective Majors, which Dino unsuccessfully sought to suppress.

When Detective Majors arrived, Dino was speaking to his attorney on the telephone. The attorney asked Detective Majors to postpone questioning, but Detective Majors replied that delaying the interview would delay the investigation. He invited the attorney to accompany Dino to the police station, but the attorney did not wish to go to the station at that time. Detective Majors informed the attorney that defendant Dino was not a suspect and that if during the interview defendant Dino began to incriminate himself, he would halt the questioning and contact the attorney. Mr. and Mrs. Dino then went to the police station to answer questions.

Detective Majors began to interview Dino. Although Dino had consumed four or five valium tablets during the preceding two hours, Detective Majors felt that Dino was alert and sufficiently attentive to answer questions. During the questioning, defendant Dino repeated his statement that the loaded .38 discharged as he reached to take it from Willie Knight. Because defendant Dino appeared to become drowsy and inattentive, Detective Majors ended the interview and permitted him to return home.

In a pretrial Motion to Suppress, defendant Dino challenged the voluntariness of the statement he had made to Detective Majors asserting that at the time he made the statement he was disoriented by the valium and insane. He also maintained that he had been deprived of his right to counsel. The trial court denied the motion, finding that Dino was neither insane nor psychotic when he made the statement.

In order to find that defendant Dino shot Willie Knight with premeditation, we must determine whether, at the time of the killing, he had a settled and fixed purpose to take Willie Knight’s life. McCutchen v. State, 96 So.2d 152 (Fla. 1957). Premeditation may be established by circumstantial evidence. Phippen v. State, 389 So.2d 991 (Fla. 1980); Tedder v. State, 322 So.2d 908 (Fla. 1975); Spinkellink v. State, 313 So.2d 666 (Fla. 1975); Perez v. State, 371 So.2d 714 (Fla. 2d DCA 1979).

While we cannot discern a motive for defendant Dino to have killed Willie Knight, lack of motive does not negate premeditation. Daniels v. State, 108 So.2d 755 (Fla. 1959).

An intent to kill need not be conceived at any particular time before the commission of the act for it to constitute premeditation. McCutchen v. State, supra; O’Bryan v. State, 300 So.2d 323 (Fla. 1st DCA 1974). Premeditation may be inferred from evidence of the nature of the weapon, the manner in which the homicide is committed, and the manner in which the wounds were inflicted. O’Bryan v. State, supra; Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA), cert. denied, 277 So.2d 287 (Fla. 1973).

Eyewitness testimony disclosed that prior to the shooting Dino left the room, walked down a hall, returned with a .38 caliber weapon, and silently strode directly to the victim. From a distance of no more than three inches, he pointed the weapon at Willie Knight and fired.

The circumstances are inconsistent with any reasonable hypothesis of innocence as to the existence of premeditation. Hall v. State, 403 So.2d 1319 (Fla. 1981). Unlike the situation in Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981), this record contains evidence that defendant’s actions were designed to effect death. In arriving at our conclusion that evidence supports a verdict of premeditation, we do not consider defendant’s earlier remarks which could reasonably be construed as having been made in jest. We refer to Dino’s comments that Willie Knight would never see another baseball and that he would be killed if he frightened Mrs. Dino.

Addressing defendant’s challenge to the court’s refusal to suppress his statement, we note that the trial court ruled that defendant was not insane or psychotic at the time he made the statement. Although the court failed to make a specific finding that the statement was made voluntarily, the court’s ruling encompassed that finding. See Peterson v. State, 382 So.2d 701 (Fla. 1980); Finley v. State, 378 So.2d 842 (Fla. 1st DCA 1979). We find no error on the question of voluntariness.

We find no violation of constitutional rights in the officer’s conducting an interview with defendant in the absence of his attorney under the circumstances presented. The attorney agreed that the interview could be conducted, and Detective Majors’ promise that he would terminate the interview prior to receiving incriminating statements was not violated; Dino’s statement was exculpatory.

For these reasons, we find no error and confirm the conviction and sentence.

DANIEL S. PEARSON, Judge,

dissenting.

I fully recognize that there is no constitutional requirement that the trial court recite on the record that it finds a statement to be voluntary before admitting it in evidence. Peterson v. State, 382 So.2d 701 (Fla. 1980). See Antone v. State, 382 So.2d 1205 (Fla. 1980); Williams v. State, 397 So.2d 1044 (Fla. 4th DCA 1981). But while Peterson dispenses with formality, it does not and cannot alter, and indeed reiterates, the constitutional requirement of Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), that the record “disclose with unmistakable clarity that the trial judge found that the statement was voluntary.” 382 So.2d at 702. Because this constitutional requirement was not met in the present case, I respectfully dissent.

Dino’s motion to suppress was grounded, inter alia, on two distinct and separate contentions of involuntariness: first, that the statement was taken at a time when Dino was under the influence of drugs; and second, that the statement was taken at a time when Dino was insane. Testimony was introduced at the suppression hearing in support of and against both contentions.

An independent review of the record shows but a single dialogue to which one can refer in deciding whether the trial court understood and fulfilled its responsibility to determine the admission of the challenged evidence.

“THE COURT: Let me make a ruling on that motion to suppress too. Briefly the facts in support of the motion and ruling, Dr. Segete’s first observation of the defendant, she attributed to his bizarre conduct to be consistent with severe drug withdrawal.
“At first she notes he was not psychotic, but severely disturbed. She added that the thought of being in jail was very disturbing, and that the decompensation began to start in front of her eyes. “So with these types of observations by Dr. Segete, they add little as to the determination as to the defendant’s competency at the time he made the statements, and these statements were, as I understand it, some eight to ten hours earlier, is that correct, from the evidence that he saw Dr. Segete or Dr. Segete saw him several hours after the statements were taken?
“[PROSECUTOR]: I don’t think she saw him that first day Judge.
“[DEFENSE COUNSEL]: Yes. She saw him — he was in Jackson Memorial Hospital on February the 22nd.
“Of course, Your Honor, you must also remember the report of Dr. Reiehenberg who told you on two occasions this man was insane.
“THE COURT: When did Dr. Segete see him in relation for the first time?
“[PROSECUTOR]: She said when he came into the jail.
“[PROSECUTOR]: I think he was booked in on the 22nd.
“THE COURT: So this would have to be at least 12 hours later, at least 12. So, based on the observations of Detective Major and the conduct of the defendant described by his wife, it would be my finding that he was, at the time of making the statements, not insane or psychotic. I will deny the motion to suppress the statements.” (emphasis supplied).

Thus, the record does show a finding that the defendant was not insane or psychotic when the statement was given. The majority’s statement that this record finding encompasses a finding of voluntariness is correct to the extent it means voluntariness on the insanity issue. This type of record finding is, in my view, exactly what is contemplated by the “unmistakable clarity” test. See Daizi v. State, 396 So.2d 1160 (Fla. 3d DCA 1981) (“unmistakable clarity” test satisfied by record indication that the trial court gave credence to testimony which showed voluntariness). But the problem here is that while the record demonstrates with unmistakable clarity that the statement was voluntary in that the defendant was not insane when it was taken, it does not demonstrate with that same unmistakable clarity that the statement was voluntary in that the defendant was not drug intoxicated when it was taken. The finding that the defendant was not insane or psychotic simply does not “encompass” a finding that Dino was not drug intoxicated or a finding that the statement was voluntary in this latter sense. Indeed, the trial court, in rejecting the defendant’s claim of insanity, and as a reason for such rejection, stated that Dr. Segete attributed the defendant’s bizarre conduct some twelve hours after the statement “to be consistent with severe drug withdrawal.”

The unmistakable clarity test is not satisfied by the trial court conducting a volun-tariness hearing and announcing at the conclusion that the motion to suppress the statement or confession is denied. If mere hearing and denial were enough to show that the trial court understood and fulfilled its responsibility to determine the admission of the challenged evidence, there would be no reason for an unmistakable clarity test, and the rule of Peterson would simply be that the record must show that a hearing was held and the challenged evidence admitted. But that is not, and constitutionally cannot be, the Peterson rule. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), which is binding in state court proceedings, requires a clear cut determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, it is constitutionally required that “his conclusion that the confession is voluntary ... appear from the record with unmistakable clarity.” Sims v. Georgia, supra, 385 U.S. at 544, 87 S.Ct. at 643, 17 L.Ed.2d at 598. A search of the record in the present case reveals no conclusion of the trial court whatsoever, much less a conclusion which appears with unmistakable clarity, that Dino’s statement was voluntary as against the challenge that it was given under the influence of drugs.

Since I cannot say that the introduction of defendant’s statement was harmless, I would reverse and remand for a new trial to be preceded, if the defendant so requests, by a determination of whether the defendant’s statement was involuntary because given under the influence of drugs.

      . The defendant’s “Motion to Suppress Statement Taken by Police” reads, in pertinent part:
      “2. That prior [to the taking of the statement] the Defendant had informed Detective Major that he had taken a substantial number of Valium pills; that the questioning of the Defendant had to be discontinued because the Defendant became obviously affected by the aforesaid drug.

      “4. That the Defendant proffers to show that the Defendant was insane at the giving of the aforesaid statement.”
      That the defendant’s will was affected by the ingestion of drugs is, of course, a basis for attacking the voluntariness of a confession. Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979). See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . On the issue of whether Dino was under the influence of drugs the defendant introduced evidence that, inter alia, (1) Dino’s wife told the police he was in no condition to talk to them; (2) the police told Dino’s wife to take away the Valium from Dino, “because he was taking so many”; (3) Dino’s speech was slurred and incoherent; (4) Dino told Detective Major that he had taken twenty to twenty-five milligrams of Valium within the short time after the shooting; (5) Dino showed signs of being impaired by the drugs; and (6) Dino kept falling asleep during the interview by the police. What conclusion should have been drawn from this and counter evidence was a function of the trial judge, as fact-finder at the suppression hearing. My point is simply that some conclusion was required.

      .The majority calls Dino’s statement “exculpatory.” According to Detective Major, Dino told him that when he returned from his bedroom Willie Knight was holding the loaded gun, and as Dino reached to take it away, it discharged. Because Dino’s defense was insanity, the statement became highly incriminating. The psychiatrists called by the defense were compelled to admit that a rational “exculpatory” explanation within hours of the shooting pointed towards sanity. Moreover, the statement, shown to be false by the testimony of other witnesses, became an admission to show consciousness of guilt, see Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980). I do not, however, believe that because the statement later undermined Dino’s insanity defense that Detective Major violated the agreement with defense counsel to cease the interview when the defendant “started to incriminate himself.” By even consenting to allow his client to be interviewed, under the condition defense counsel imposed, he ran the risk of precisely what happened — an exculpatory statement which proves to be incriminating, and Major’s testimony about the defendant’s responsiveness and demeanor which undercut the insanity defense. I note that Dino’s trial and appellate counsel did not represent him at the time he gave the statement to Detective Major.

      .Under Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431 (1972); Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964); and Jackson v. Denno, supra, Dino would only be entitled to a fair determination of whether his statement was voluntary in light of his claim that it was drug induced, not a new trial. If the statement were determined to be voluntary, the statement would have been properly admitted, and his conviction would stand; if determined to be involuntary, then a new trial will be required. However, under the combined holdings of Land v. State, 293 So.2d 704 (Fla. 1974), and Greene v. State, 351 So.2d 941 (Fla. 1977), a new trial is required where the trial court, although conducting a hearing, does not make a voluntariness determination in a case, as the present one, tried after Jackson v. Denno was decided. Compare, however, LaRoche v. Wainwright, 599 F.2d 722, 725 n. 2 (5th Cir. 1979) (“Though there are policy reasons, as evidenced by the Florida rule, for granting a new trial when Denno error occurs well after the requisite standards have been made known, a contrary rule in a case like this certainly has no constitutional deficiency. There has been no lapse in due process if the statement is shown at some point to have been voluntarily made.”).


text:
    H. K. CORPORATION d/b/a National Hotel, Inc., Appellant, v. ESTATE OF George W. MILLER and Helen Miller, individually, Appellees.
    No. 80-1309.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.

      Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Scott D. Sheftall, Miami, for appellees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment entered upon a jury verdict in favor of the plaintiffs (appellees herein) for personal injuries sustained by plaintiffs’ decedent in a diving accident is affirmed upon a holding that (1) the trial court correctly denied the defendant’s motion for directed verdict at the close of plaintiffs’ case on the issue of liability. This issue was properly submitted for determination as there was sufficient evidence in the record for the jury to conclude, as it ultimately did, that the decedent’s injuries were proximately caused by the defendant’s negligence, Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla.3d DCA 1977); (2) the testimony of plaintiffs’ expert witness was properly admitted into evidence on the basis that (a) the sufficiency of the facts required to form an opinion must normally be decided by the expert himself and any deficiency relates to the weight rather than the admissibility of the expert’s opinion, and (b) defendant presented no testimony or evidence to refute the adequacy of the underlying data. Quinn v. Millard, 358 So.2d 1378 (Fla.3d DCA 1978); (3) the administrative regulation at issue, first promulgated in 1962 pursuant to section 514.02, Florida Statutes (1961) and renumbered without change in 1969, was applied prospectively to defendant’s diving facilities as they existed in 1974, when the decedent’s mishap occurred; (4) the trial court properly instructed the jury that the hotel’s violation of the regulation (which requires public swimming pools to have a minimum water depth for diving boards commensurate with the height of the board) was negligence per se as this rule obligated the hotel to protect a particular class of persons (swimming pool divers), from a particular type of harm (hitting the bottom of the pool), deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973); Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla.3d DCA 1978); Cf. Schulte v. Gold, 360 So.2d 428 (Fla.3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla.1979) (statute requiring public lodging and food service establishments to be properly plumbed, lighted, heated, cooled and ventilated was designed to protect public in general); Kelly v. Koppers Co., Inc., 293 So.2d 763 (Fla.3d DCA), cert. denied, 302 So.2d 415 (Fla.1974) (statute requiring floors and walls of pools to be light in color was promulgated for purposes of sanitation, health and cleanliness, not the protection of a class of persons).

Affirmed.