text:
    MJZ CORPORATION and Michael J. Zappone, Appellants, v. GULFSTREAM FIRST BANK & TRUST, N. A., Appellee.
    No. 81-1425.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.

      James R. Eddy of James R. Eddy & Associates, P. A., Pompano Beach, for appellants.
    Lewis M. Petzold of Tylander, deClaire & Sliney, Chartered, Boca Raton, for appellee.
   HURLEY, Judge.

The issue on appeal is whether a bank or its former customer is liable for checks which the bank honored after notice that the account had been closed. We hold that closure of the account terminated the contractual relationship between the bank and its customer and, thus, we find that the bank is liable for the checks in question. For this reason, we reverse the judgment below.

Michael J. Zappone was president of MJZ Corporation, an entity which operated the Bayou Restaurant in Boca Raton, Florida. Mr. Zappone sold the restaurant in October 1979. At that time, he gave the new owner two signed but undated checks which were blank as to the amount. These checks were on MJZ’s corporate account.

MJZ maintained its corporate checking account at the Gulfstream First Bank & Trust. On April 2, 1980, Mr. Zappone closed this account. However, unbeknown to Mr. Zappone, the bank had a policy of continuing to honor checks on closed accounts for thirty days after closure. The bank followed this practice as a convenience to customers who might otherwise be embarrassed by “bounced checks.”

Later in April, the two checks previously signed by Mr. Zappone were presented to the bank in the amount of $6,998.22 and $11,000.00, respectively. Although the account had been closed, the bank honored both checks and looked to Mr. Zappone for reimbursement. Mr. Zappone refused, claiming that the bank had no authority to honor checks on a closed account.

After a non-jury trial, at which all material facts were stipulated, the trial court ruled in the bank’s favor. The court found that Michael J. Zappone, personally and in ]ijs corporate capacity, was liable to the bank for the full amount of both checks.

In its brief and at trial, the bank has argued that Article IV of Florida’s Uniform Commercial Code, Section 674.101, et seq., Florida Statutes (1981), applies. Section 674.401(1), Florida Statutes (1981), states the following: “As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft.” This language, the bank asserts, authorized the creation of an $18,000 overdraft in Mr. Zappone’s account. Mr. Zappone, on the other hand, has consistently argued that when a customer closes his account, his relationship with the bank terminates. Since he was no longer a “customer” when both checks were presented for payment and because the bank had due notice of this fact, it lacked authority to pay checks and create an overdraft.

We begin our analysis by noting that the relationship between a bank and its depositing customer is contractual. McCrory Stores Corp. v. Tunnicliffe, 104 Fla. 683, 140 So. 806 (1932). The delivery of money to a bank implies an “agreement on the part of the bank that the deposit will be paid out on the order of the depositor or returned to him upon demand.” Id. at 807. Deposits are either general or special. A general deposit is credited to the depositor to be drawn upon by him in the usual course of banking business. Id. Absent some agreement demonstrating otherwise, a bank deposit is presumed to be general. Id. The contractual relationship established between bank and depositor is one of debtor to creditor. Mallett v. Tunnicliffe, 102 Fla. 809, 136 So. 346 (1931).

In the instant case, there was no proof that the MJZ corporate account was anything but a general account. Thus, a contractual debtor/creditor relationship existed between the corporation and the bank. When Mr. Zappone closed the account, the remaining funds were ‘returned to him upon demand.’ This terminated the contractual relationship between the corporation and the bank; the corporation ceased to be the bank’s customer. We find the bank’s reliance on the Uniform Commercial Code to be unavailing. The Code speaks to the duties and obligations of viable banking relationships. It provides no support for the bank’s post-termination action in this case. In short, the bank had no authority to create an overdraft on a closed account. It acted as a volunteer and now is without legal basis to recoup its loss from its former customer.

At this juncture, we must caution against an overly broad reading of this decision. We do not hold that banks cannot maintain a thirty day ‘open account after closure’ policy. Rather, we hold that such a policy, without notice to the customer, cannot bind the customer. Furthermore, in the absence of any special agreement known to the customer, closure of an account terminates the contractual relationship. General principles of law, not the provisions of the Uniform Commercial Code, govern the legal relationships thereafter.

We now turn to the second issue on this appeal which is whether Mr. Zap-pone was personally liable on a check written on his corporate account. The bank has properly stated the law in observing that when one signs checks in a corporate capacity, that capacity must be indicated to avoid personal liability. Section 673.403(2), Florida Statutes (1981). Section 673.403(2)(b) states that an authorized representative who signs an instrument without indicating his representative capacity is personally obligated “[ejxcept as otherwise established between the immediate parties.” In this case, the bank’s signature cards for the corporate account indicated that Mr. Zap-pone was authorized to sign as president of MJZ Corporation. The account was in the name of the corporation. Thus, we hold that Mr. Zappone’s representative capacity was “otherwise established” between the parties. Consequently, we reverse the judgment below both as to the liability on the checks and as to the finding of Mr. Zappone’s personal liability.

REVERSED.

DELL, J., concurs.

HERSEY, J., concurs in result only.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    Theodore S. KEEHN and First Realty Equity Investment Corporation, Appellants, v. JOSEPH C. MACKEY AND COMPANY, Appellee.
    No. 81-1762.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.

      Dewey A. F. Ries, Fort Lauderdale, for appellants.
    Michael M. Westerman of Goodman, Pleeter & Webber, Hollywood, for appellee.
   GLICKSTEIN, Judge.

In 1977 appellee brought an action on a note in circuit court against appellants. In December, 1979, the Secretary of State issued to appellee a certificate of involuntary dissolution for failure to file its annual report or pay the filing fee therefor. On July 16, 1981, appellants moved to dismiss appellee’s complaint alleging appellee was no longer a viable corporation because it had been issued the foregoing certificate; plainly this was an attack on appellee’s capacity to sue. Ultimately appellants’ motion was unsuccessful and prompted this appeal which appellees, asserting absence of jurisdiction, have moved to dismiss.

We agree with appellee; this appeal cannot be considered reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which permits an appeal of a non-final order determining jurisdiction over the person, because it involves a non-final order on the capacity to sue. See National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 417 So.2d 655, 657 (Fla.1982) (the supreme court said: “[Interlocutory orders relating to the right of plaintiffs to maintain an action generally do not determine the court’s jurisdiction over the plaintiffs.” Id.).

Nor is there an appropriate underlying basis on which to consider this appeal as a petition for writ of certiorari authorized by Florida Rule of Appellate Procedure 9.040(c). While that rule imposes upon this court the requirement of treating the cause as if the proper rather than improper remedy had been sought, we do not feel constrained to do so in the absence of all the conditions stated in State ex rel. Bludworth v. Kapner, 394 So.2d 541, 542 (Fla. 4th DCA 1981):

Certiorari is a discretionary common law writ which, in the absence of an adequate remedy by appeal, a court may issue to review an order or judgment that is unauthorized or violates the essential requirements of controlling law. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).

In the present case these conditions do not exist; therefore we dismiss the appeal. However, we perceive a legislative gap which warrants attention and which we address with the understanding that our lack of jurisdiction limits us to discussion only. Nothing in section 607.297, Florida Statutes (1981) expressly resolves a situation like the present one where an action is pending at the time of dissolution rather than being brought thereafter. Only by concluding the Legislature must have intended the continuation of actions pending on behalf and in the name of a corporation when it is involuntarily dissolved by the Secretary of State, do we agree with appellee that the foregoing statute was the proper dispositive basis for denial of appellants’ motion to dismiss. Unlike the present version of the statute, its predecessor, section 608.30(3), Florida Statutes (1973), bridged the gap by saying that the trustees of a dissolved corporation

shall have power to prosecute and defend, as trustees of the corporation, all suits in progress at the time of dissolution or expiration or thereafter arising as may be necessary for closing the affairs of the corporation ....

We believe the gap in the present statute is simply the result of oversight, not design. Section 607.301, Florida Statutes (1981), which spells out the duties and responsibilities of those acting as trustees for a dissolved corporation, does not provide for bringing or defending actions. Were the legislative gap not filled, there would be no authority for continuing actions pending by or against corporations subsequently dissolved involuntarily by the Secretary of State. Such anomaly plainly was not intended by the Legislature. However, because we must dismiss this appeal because of the lack of this court’s jurisdiction, we are limited to discussion of this subject and are precluded from any holding in regard thereto.

APPEAL DISMISSED.

HURLEY and DELL, JJ., concur.

      . “Capacity to sue” is an absence of legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to “standing” which requires an entity have sufficient interest in the outcome of litigation to warrant the court’s consideration of its position. Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So.2d 1066 (Fla. 2d DCA), pet. for rev. denied, 389 So.2d 1108 (Fla.1980). Appellants also argued in their motion to dismiss that it was impossible for appellee to re-incorporate since one of the appellants controlled the appellee’s corporate “name.” While this appears to be another apparent attack on appellee’s capacity to sue, this point is not argued on appeal.
      Florida Rule of Civil Procedure 1.120(a) provides:
      Capacity. It is not necessary to aver the capacity of a party to sue or to be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.
      This court said in Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463, 466 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla.1976):
      The “specific negative averment” referred to in Rule 1.120 may be reflected in a responsive pleading (answer) or presumably in what might be described as a “speaking motion” whether denominated as a motion to dismiss, a motion to drop improperly joined parties, or a motion to strike.
      The Second District Court of Appeal held, in a case in which the defect did not appear on the face of the complaint, that appellant’s motion to dismiss was insufficient as a specific negative averment. Seminole Tribe of Florida, Inc. v. Courson, 183 So.2d 569 (Fla. 2d DCA 1966).
      A complaint’s facial defect can be attacked appropriately for lack of capacity to sue pursuant to Federal Rule of Civil Procedure 9(a) (upon which Florida Rule 1.120(a) was patterned identically) by a motion to dismiss which can be justified under Federal Rule of Civil Procedure 12(b)(6), i.e., failure to state a claim upon which relief can be granted. Klebanow v. New York Produce Exchange, 344 F.2d 294 (2d Cir. 1965). See also 2A J. Moore & J. Lucas, Moore’s Federal Practice ¶¶ 12.07-.08 (2d ed. 1982), and 5 C. Wright & A. Miller, Federal Practice and Procedure §§ 1292-1295, 1360 (1969 & Supp. 1981).

      . Section 607.297 provides:
      Survival of remedy after dissolution. — The dissolution of a corporation either:
      (1) By the issuance of a certificate of dissolution by the Department of State;
      (2) By a decree of court; or
      (3) By expiration of its period of duration shall not take away or impair any remedy available to or against such corporation or its directors, officers, or shareholders for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within 3 years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. If such corporation was dissolved by the expiration of its period of duration, such corporation may amend its articles of incorporation at any time during such period of 3 years so as to extend its period of duration.
      (Emphasis supplied.)


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Willie LEAK, Appellee.
    No. 82-450.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The trial court’s order discharging the defendant because of the State’s alleged violation of the speedy trial rule is reversed on the authority of State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: ANSTEAD, Judge. GLICKSTEIN, Judge,

text:
    BROWARD COUNTY, a political subdivision of the State of Florida, Petitioner, v. Zebedee WRIGHT, Esquire, Respondent.
    No. 82-955.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Harry A. Stewart, Gen. Counsel for Bro-ward County, and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for petitioner.
    Zebedee W. Wright, Fort Lauderdale, pro se.
   ANSTEAD, Judge.

By order of the trial court, respondent Zebedee W. Wright was appointed special public defender to represent George Franklin against a charge of first degree murder. Following trial, respondent submitted a petition for compensation, and filed an affidavit in support thereof requesting a fee of $20,000. The trial court, without an eviden-tiary hearing, entered an order that $10,000 in fees be awarded to respondent by petitioner Broward County. Because this amount exceeded the $3,500 fee authorized for defense of capital cases by Section 925.-036(2)(d), Florida Statutes, petitioner has filed a petition for writ of certiorari seeking to have the order quashed. The parties agree that the order at issue is reviewable in this fashion. Dade County v. Strauss, 246 So.2d 137 (Fla. 3d DCA 1971), cert. denied 253 So.2d 864 (Fla.1971), cert. denied 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1972).

In Metropolitan Dade County v. Bridges, 402 So .2d 411, at 412 (Fla.1981), our Supreme Court adhered to the dictates of several earlier cases and explicitly held that Section 925.036 was constitutional, that its language was mandatory and that a trial court could not award attorneys’ fees in excess of the statutory limits.

Accordingly, we quash the order and direct the trial court to enter a fee award consistent with the Supreme Court’s holding in Bridges.

WALDEN, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially:

The only reason I concur specially is because of the following sentence in the note to the majority’s opinion in this case, which refers to the plurality opinion in Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981):

The court thus hinted at the possibility that, in the demonstrably extreme case, an award of attorneys’ fees in excess of the statutory maximum might be mandated.

I am not convinced that the plurality expressed the foregoing when it said:

Unless it is demonstrated that the maximum amounts designated for representation in criminal cases by section 925.036 are so unreasonably insufficient as to make it impossible for the courts to appoint competent counsel to represent indigent defendants, we cannot say that section 925.036 violates the sixth amendment right to counsel. In the present case, the defendant represented by Ross was not denied his sixth amendment right to representation by section 925.036, nor is it contended that he was denied such right.

Id. at 414-15. Were I convinced, my following remarks would be inappropriate.

As I hopefully view the plurality opinion, it is less explicit but consistent with the specially concurring opinion of Justice Sundberg (with which Justice England concurred) who said with respect to any future constitutional attack to be mounted against the subject statute:

such a showing would have to relate to lawyers or types of cases as a class and should not be entertained on an individual lawyer or individual case basis as was done by the trial court in the instant case.

Id. at 415-16. The method suggested by Justice Sundberg not only would seem appropriate to the holding in Bridges that the statute is mandatory, not discretionary, but also consistent with a legislative approach that has resulted in amendments to the statute in question wherein the maximum fees have been recently increased. I have great confidence that the attorneys in Florida are mindful of the oath they took as admittees, which provides in part:

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed

and that any attempted showing would arise out of the impossibility of securing effective counsel.

      . The court did leave the door open slightly for a possible future constitutional attack upon the statute:
      Unless it is demonstrated that the maximum amounts designated for representation in criminal cases by section 925.036 are so unreasonably insufficient as to make it impossible for the courts to appoint competent counsel to represent indigent defendants, we cannot say that section 925.036 violates the sixth amendment right to counsel.

        Id. at 414-15. Several members of the court also expressed the view that under certain circumstances the statutory limit should not apply. The court thus hinted at the possibility that, in the demonstrably extreme case, an award of attorneys’ fees in excess of the statutory maximum might be mandated. Such has been held to be the case with statutorily authorized witness fees. Rose v. Palm Beach County, 361 So.2d 135 (Fla.1978). This case of course involves attorneys’ fees rather than witness fees. In any case, the trial court here made no finding that its award of attorneys’ fees in excess of the statutory maximum was mandated by demonstrably extreme circumstances and the respondent advanced no such contention in his petition for compensation.
      The court indicated in Bridges that its decision was predicated, at least in part, upon a lawyer’s professional responsibility to represent the poor even when little or no compensation is provided for his services. In short, an attorney who undertakes the representation of indigent criminal defendants in Florida should be on notice that he may not be compensated for his services to the extent that the value of such services exceeds the statutory limits. In effect, this overall scheme constitutes a form of pro bono publico service by the bar for the poor in criminal proceedings.


text:
    Bennett S. COHN and Jan Cohn, Petitioners, v. The ZONING BOARD OF APPEALS OF the CITY OF LAKE WORTH, Florida, Respondent.
    No. 82-1701.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Bennett S. Cohn of Law Offices of Bennett S. Cohn, Lake Worth, for petitioners.
    No appearance required on behalf of respondent.
   PER CURIAM.

The petition for writ of certiorari seeks to have us review the denial of a variance by the City of Lake Worth Zoning Board of Appeals.

Petitioner erroneously contends that jurisdiction is conferred on this court by Section 120.68(2), Florida Statutes (1981). That statute applies to review actions of countiers and municipalities only to the extent that “they are expressly made subject to this act by general or special law or existing judicial decisions.” Section 120.-52(l)(c), Florida Statutes (1981). We find no such paramount authority.

Accordingly, the appropriate forum for review in this instance is the circuit court. This is authorized by Section 23-33(9) of the Zoning Code of the City of Lake Worth, Florida, and mandated by judicial opinion. See State v. Furen, 118 So.2d 6 (Fla.1960); City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981).

We therefore deny the petition for certio-rari and transfer these proceedings to the Circuit Court in and for the Fifteenth Judicial Circuit, Palm Beach County, Florida. Florida Rule of Appellate Procedure 9.040(b); Damyn v. Strickland, 392 So.2d 598 (Fla. 1st DCA 1981).

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: SHAW, Judge. ROBERT SMITH, C.J.,

text:
    Patricia D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AH-467.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1982.
    Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   SHAW, Judge.

Williams appeals the trial court’s denial of her motion to suppress the warrantless recording of certain telephone conversations emanating from her home, the fruits thereof, and the testimony of the police informant who participated in the conversations. Upon denial of her suppression motion, Williams pled nolo contendere but reserved her right to appeal the denial of the suppression motion.

Williams engaged in a series of conversations concerning trafficking in marijuana with a police informant who had consented to the warrantless recording of the conversations. Certain of these conversations took place by telephone while Williams was within her home; others were conducted person-to-person outside the Williams home. Some, but not all, of the telephone conversations were recorded by telephone monitors; the person-to-person conversations were recorded using a “body bug.”

Article I, section 12, Florida Constitution provides in pertinent part for the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means [.] ” In State v. Sarmiento, 397 So.2d 643 (Fla. 1981), the defendant and undercover agent were in the defendant’s home when their conversation was transmitted outside the home by means of a “body bug” to police officers who monitored and recorded the conversation. The court held that the undercover agent could testify as to the contents of the conversation, but the police officers who monitored and recorded the conversation from outside the home could not testify as to the conversation, nor could the recording be introduced. Our reading of Sarmiento and of article I, section 12 is that they protect the person within the home and that this protection is not predicated on the physical location of the person who consents to the recording of the conversation. It matters not whether the consenting party is outside of the home, nor whether the means used to penetrate the privacy of the home is a “body bug,” as in Sarmiento, or a telephone, as here. A “body bug” and a telephone are electronic devices which, by transmitting the human voice beyond the confines of the home, provide the means to intrude into the home. Both fall within the phrase “by any means” in article I, section 12. In our view, Sar-miento is dispositive of all the issues posed here: the warrantless recordings of the telephone conversations from within the home must be suppressed; the warrantless recordings of the person-to-person conversations outside the home may be admitted; the police informant may testify as to the contents of all the conversations; and the fruits of all the conversations may be admitted.

Appellee urges that Hill v. State, 422 So.2d 816 (Fla.1982) supports the trial court’s denial of the motion to suppress the warrantless telephone conversations. We disagree. In Hill, the defendant and the undercover agent were both in the backyard of the defendant’s home when their conversation was monitored and recorded by police officers elsewhere. The court upheld the introduction of the recording and the testimony of the police officers. In our view, the significant distinction between Hill and Sarmiento is the location of the defendant. In Hill the court simply refused to extend the article I, section 12 “right of the people to be secure in their . . . houses .. . against the unreasonable interception of private communications by any means” to a person “beyond the four walls of the home.” Id. at 818. See also Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981), where this Court refused to extend this protection to a motel room. Thus, we do not understand Hill to say that persons within their homes lose the protection of article I, section 12 because other parties to a communication are outside the home.

Our understanding of Sarmiento and Hill is reinforced by our reading of Morningstar v. State, 405 So.2d 778 (Fla. 4th DCA 1981) and Morningstar v. State (Fla.1982) [1982 FLW 442] (hereafter Morningstar I and II respectively). In Morningstar I, the defendant’s conversations with police informants, both telephonic and person-to-person, took place while the defendant was in his office at his place of business. The telephonic conversations were recorded by telephone monitors while the person-to-person conversations were transmitted by a “body bug” to a recorder outside the building. The court interpreted Sarmiento “as rendering inadmissible a communication obtained in a manner otherwise permissible under Section 934.03(2)(c), Florida Statutes (1979) only where that communication emanates from the defendant’s home.” The court also certified the following question as being of great public importance:

Does Article I, Section 12 of the Florida Constitution prohibit reliance upon Section 934.03(2)(c), Florida Statutes (1979) as to the interception of a private communication emanating from a location other than the defendant’s “home”?

In Morningstar II, the Supreme Court answered in the negative, stating that Sar-miento held that “the defendant’s home was an area specifically protected by Florida’s constitution [article I, section 12][,]” but “[t]hat constitutional protection of the home, recognized in Sarmiento, does not extend to the defendant’s office or place of business.” Id. at 442. While these quoted words are too cryptic to be utterly dis-positive here, it seems clear that implicit in the certified question, and thus in the answer, is the assumption that phone conversations emanating from the home are protected by article I, section 12. Indeed, if such phone conversations are not so protected, it would have been pointless to ask or to answer a question as to whether phone conversations from an office or a place of business were protected. In our view, Morningstar II follows Hili in refusing to extend the Sarmiento and article I, section 12 protection beyond the confines of the home but does not remove or limit the protections afforded within the home.

One other consideration influences our view and deserves comment. The voters of Florida will be presented with a constitutional amendment to article I, section 12, in the November 1982 elections which, if adopted, will effectively nullify Sarmiento. If the voters’ will is to nullify Sarmiento, then it will not matter what this Court says here. However, if this proposed amendment is rejected by the voters, then it becomes of great importance that the courts not recede from Sarmiento even as the voters themselves endorse Sarmiento.

We recognize and certify that our decision here conflicts with those in State v. Vanyo, 417 So.2d 1104 (Fla. 4th DCA 1982).

REVERSED and REMANDED.

ERVIN, J., concurs.

ROBERT P. SMITH, Jr., C.J., concurs and dissents with opinion.

ROBERT SMITH, C.J.,

concurring and dissenting.

I concur in the court’s disposition of issues relating to conversations held in person outside the defendant’s home. But I do not read the cited decisions of the Supreme Court as protecting telephone conversations, between the defendant at her home and another elsewhere, from electronic interception elsewhere either by listening in or by recording. As long as the defendant’s home and expectation of privacy there is not physically compromised, by a body bug as in State v. Sarmiento, 397 So.2d 643 (Fla.1981), or by other means amounting to an unknown intrusion upon or within the home, I think the Court has declared conversations there, intended by the defendant to be transmitted elsewhere by telephone, beyond the protection of Article I, Section 12, of the Constitution. Hill v. State, 422 So.2d 816 (Fla.1982); State v. Vanyo, 417 So.2d 1104 (Fla. 4th DCA 1982).


author: PER CURIAM. ANSTEAD, Judge,

text:
    STATE of Florida, Appellant, v. Michael Jerome PASSIFUME, Appellee.
    No. 81-1412.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Sharon B. Jacobs, of Simon, Schindler & Hurst, P.A., Miami, for appellee.
   PER CURIAM.

AFFIRMED.

HURLEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

This is an appeal by the state from an order of dismissal entered by the court when the state appeared at trial unprepared to prosecute. I agree that the trial court acted within its discretion in dismissing the action for failure of the state to prosecute.

It is apparent on the face of the record that the state was not prepared to proceed when this case was called for trial. The prosecutor made this clear in her statements to the trial court and, given the circumstances of the prior delays attributable to the state and the trial court’s denial of the state’s request for a further delay in locating its witnesses, the trial court had little choice but to dismiss the case. What else is the trial court to do when the state acknowledges that it is not ready for trial? I simply cannot agree with the argument of the state that: “In the instant case, the judge could have begun to hear one of the other cases which was set for that day as the assistant state attorney suggested, or he could have continued the case due to the absence of the State’s witnesses.”

In addition, it should be noted that the trial court dismissed the case without prejudice to the refiling of another information, a remedy far less drastic than granting a defense motion for directed verdict that would have been appropriate if sought after the state was unable to present any evidence at trial. This case is distinguishable from our recent decision in State v. Evans, 418 So.2d 459 (Fla. 4th DCA 1982), because here, unlike Evans, it is clear that the state was unprepared to prosecute.


text:
    GREAT SOUTHERN LIFE INSURANCE COMPANY, Appellant, v. EMPLOYEE FRINGE BENEFITS, INC., and the State Exchange Bank, Appellees.
    No. YY-411.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    James C. Rinaman and Gerald W. Wee-don, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    C. Harris Dittmar and William R. Dorsey, Jr., Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellee Employee Fringe Benefits, Inc.

      Frederick L. Koberlein, Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee The State Exchange Bank.
   PER CURIAM.

This controversy involves the validity of an agreement for rescission of certain “key man” life insurance policies. Employee Fringe Benefits (Employee), owner and beneficiary of the rescinded policies, sued Great Southern Life Insurance Company (Great Southern) for recovery on the policies. Great Southern defended on the grounds that the policies had been rescinded by agreement between it and Employee, for a valuable consideration, that all claims under the policies had been satisfied by payment, and that Employee had released Great Southern from all further liability on the policies. Great Southern and Employee both urged in the trial court that the controversy was ripe for determination on motion for summary judgment. Accordingly, the trial court rejected Great Southern’s defenses and granted summary judgment in favor of Employee for recovery of the full face amount of the policies, based upon the court’s determination that the rescission agreement was voidable for mutual mistake of fact. We affirm the trial court’s decision.

Ronald B. Garelick, Forrest Jefferson Harris, Jr., and Gary Holmes became associated together in a land development project through a corporation known as Hidden Hills North Development Company, which was wholly owned by Garelick. Garelick’s contribution to the project consisted of a loan of $70,000.00 to the corporation, which was borrowed from The State Exchange Bank in Lake City. Garelick obtained key man insurance from Great Southern covering the lives of the principals in the corporation in the following amounts: a $400,-000.00 and a $100,000.00 policy on the life of Harris; a $200,000.00 policy on the life of Holmes; and a $100,000.00 policy on Garel-ick. Hidden Hills was the original owner and beneficiary of all the policies; but this was later changed by assignment of all the policies to Employee Fringe Benefits, appel-lee herein, which was an insurance agency owned by Garelick.

On April 23, 1977, Harris was reported as missing, and an investigation into his disappearance was commenced by law enforcement agencies, including the FBI. On July 7, 1977, Great Southern learned that Harris was missing. Great Southern’s claims manager contacted Garelick noting that the incontestability period for the Harris policies might run as early as August 8, 1977, and that Great Southern might have to file an action against Employee contesting the policies before that time. Garelick agreed to travel to Houston to discuss the policies with officers of Great Southern.

Garelick and his representatives met with Great Southern representatives in Houston on August 1 and 2, 1977. On August 2, 1977, Employee, through its president, Gar-elick, and Great Southern entered into an agreement under which the policies on the life of Harris were rescinded. Employee was paid $26,147.00 for the rescission of the Harris policies. The agreement, which was drafted by Great Southern, contains no reference to the possibility that Harris might have been dead on that date, and contains no language from which it can be inferred that Employee intended to release Great Southern from accrued liability on the policies if, in fact, it later developed that Harris was in fact dead. On August 3, 1977, Harris’ body was found. The parties stipulated that Harris was indeed dead prior to the time the rescission agreement was executed. By a strange quirk of fate, on August 4, 1977, Garelick, while piloting his own aircraft, crashed, sustaining injuries which resulted in his death on August 5, 1977.

The trial judge found that the agreement for rescission of the Harris policies was entitled to be avoided by Employee on the ground of mutual mistake of fact, based upon the undisputed facts showing that at the time the rescission agreement was executed, neither party knew that Harris was already dead and that the contingent liability - of Great Southern to pay the face amount of the policies was no longer contingent, but had become absolute. We conclude that the trial judge ruled correctly.

In support of the trial judge’s decision, appellee refers to the basic rule that in order for an agreement to rescind or cancel an insurance policy to have binding effect, each party must act with knowledge of the material facts. See, 17 Couch on Insurance 2d, § 67:205, at 520. Appellee further refers us to a number of cases from other jurisdictions holding that a beneficiary who has surrendered interests under an insurance policy in ignorance of material facts has the right to avoid the contract relieving the insurer of accrued liabilities on the policy. These cases are: Gavin v. North Carolina Mutual Insurance Co., 265 S.C. 206, 217 S.E.2d 591 (1975); Traders’ Insurance Co. v. Aachen & Munich Fire Insurance Co., 150 Cal. 370, 89 P. 109 (1907); Board of Trustees of the Unitarian Church v. Nationwide Life Insurance Co., 88 N.J.Super. 136, 211 A.2d 204 (1965); Seidman v. New York Life Insurance Co., 162 Misc. 560, 296 N.Y.S. 55 (Sup.Ct.1937), affirmed without opinion, 253 App.Div. 804, 2 N.Y.S.2d 634, aff’d, 279 N.Y. 620, 17 N.E.2d 680 (1938); Riegel v. American Life Insurance Co., 153 Pa. 134, 25 A. 1070 (1893); and Boyd v. Aetna Life Insurance Co., 310 Ill.App. 547, 35 N.E.2d 99 (1941). Although only two of these cases, i.e., Board of Trustees and Riegel, involve the prior death of the insured as the unknown material fact, as we read them all stand for the proposition that an insurer cannot avoid liability on a policy when the owner or beneficiary has been led to accept less than amounts already accrued under the terms and conditions of the policy, while ignorant of facts which would give rise to full recovery under the policy.

The court in Traders’ rejected the insured’s argument that the cancellation agreement was binding because it released and surrendered all liability, past as well as future, and also rejected the argument that the insured party should not be entitled to avoid the release or cancellation of liability because of knowledge that a loss “might have occurred.” On the latter point, the court said:

We see no reason why the intent to surrender an accrued claim, the existence of which was not known, should be imputed to the plaintiff in the absence of an express understanding to that effect; and there is nothing here to evidence such understanding. 89 P. at 111.

Great Southern’s arguments in similar vein here were also properly rejected by the trial court.

Great Southern makes much of facts which, it urges, show that the parties contemplated the death of Harris as one of the material alternative factual circumstances governing their mutual determination to proceed with the cancellation of the policies. Great Southern relies on the principle that mistakes which the contracting parties had in mind as possibilities, and as to the existence of which they took the risk, cannot be the basis for avoiding a transaction. 13 Williston on Contracts, § 1543, p. 75; 3 Pomeroy, Equity Jurisprudence, 5th Ed., § 855; Restatement of the Law of Restitution, § 11. Great Southern also relies upon Sears v. Grand Lodge A.O.U.W. of New York, 163 N.Y. 374, 57 N.E. 618 (1900), and Kowalke v. Milwaukee Electric Railway & Light Co., 103 Wis. 472, 79 N.W. 762 (1899). In our view the facts of the case before us can be more closely analogized to the cases cited by Employee, rather than the Sears and Kowalke cases.

As to the argument that Employee’s knowledge of the fact that Harris’ prior death was one of the possibilities, we think the answer to this contention was given by the court in Traders’, as previously noted. There are, of course, circumstances under which the rule relied upon by Great Southern would be applicable. We do not find that to be the case here, however. Even if we assumed that the evidence referred to by Great Southern would be sufficient to give rise to factual inferences supporting Great Southern’s defense on this theory, we do not find that the existence of such factual inferences would compel a different result in this case. We think that the inferences are equally as strong, if not stronger, that both parties regarded the policies as executory contracts involving promises to pay on conditions not yet fulfilled. Appel-lee-Employee appropriately points out that there was no discussion to the effect that Employee knowingly assumed the risk of Harris’ death at the time it executed the rescission of the policies, and further, the agreement, which was prepared by Great Southern, is totally silent concerning the parties contemplation of such a possibility. Under these circumstances the mere possibility that the parties might have subjectively, at some time subsequent to Harris’ disappearance, reflected on or expressed the possibility that he might be dead does not compel a finding that the rescission agreement later executed was predicated on such a possibility, nor that the parties mutually intended that Employee would forego any accrued claims that might already have arisen by reason of his death.

We find no merit in Great Southern’s argument that a different result than the one reached by the trial judge is required because a rescission of the policies, unlike a cancellation, voids the policies ab initio. We find it makes no difference here, because the mutual mistake was sufficient to avoid the agreement, regardless of whether it should be viewed a cancellation, or a rescission ab initio.

Finally, since the claims of appellee-The State Exchange Bank have not been ruled upon by the trial judge, no issues with. respect to its claims are presented for our consideration.

The judgment appealed from is AFFIRMED.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . A Jacksonville newspaper published an article on the disappearance of Harris which focused on his possible knowledge of mob activities, his fear that his life was in danger for that reason, and various details concerning investigations by law enforcement authorities.

      . Great Southern notes in this connection that Harris had been missing for three and one-half months under suspicious circumstances; the newspaper account (see footnote 1); the homicide investigation; deposition testimony of Great Southern’s claims manager, Washburn, that Garelick told him in July that he felt Harris was either in FBI custody, or dead; and testimony by Garelick’s attorney that he discussed with Garelick the effect of the five year presumption of death statute, which, according to Great Southern, related to Harris’ death.

      . Garelick’s attorney testified that the rescission of the policies was initiated by Great Southern. There was also testimony that Gar-elick was concerned about possible damage to his business reputation if his holding the policies on Harris’ life should be publicized, had stated that he wished he never had the policies, and was also concerned about protecting his business relationship with Great Southern. The attorney also denied that he and Garelick ever discussed the possibility that Harris was dead.


author: ERVIN, Judge.

text:
    JOSEPH BUCHECK CONSTRUCTION CORPORATION, a Florida corporation, Appellant, v. W.E. MUSIC, Saco Development, Inc., a Texas corporation, and the First National Bank of Live Oak, a national banking corporation, Appellees.
    No. AD-486.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.

      Thomas W. Brown and Eddie M. Anderson of Brannon, Brown, Norris, Yocelle, Haley, Brown & Robinson, P.A., Lake City, for appellant.
    Ernest A. Sellers and Andrew Decker, III, of Airth, Sellers & Lewis, Live Oak, for First Nat. Bank of Live Oak and W.E. Music, appellees.
    Winston W. Jacobo, Live Oak, for Saco Development, Inc., appellee.
   ERVIN, Judge.

We determine this appeal to have been timely and properly noticed and affirm in part the lower court’s judgment, based upon a jury special verdict, that the appellant was not a third-party beneficiary of a certain conveyancing agreement, relating to a “cost-plus” contract, between Bucheck and Suwannee County Mall Ltd. We reverse the judgment and remand the case for new trial, however, as it pertains to the issue of whether the parties to a joint venture agreement intended for appellant to be a third-party beneficiary of that agreement. Although a number of issues were presented on appeal, only two of them warrant discussion.

This case involves two actions which were consolidated for trial. These actions stem from an agreement between the appellant, Joseph Bucheck Construction Corp. (Bu-check) and the Suwannee County Mall, Ltd., consummated on December 29,1975, for the purpose of completing construction of the mall. Bucheck agreed to complete construction for $51,900. By February, 1976, it became apparent to Bucheck that additional funds would be necessary to complete the work. Bucheck contacted Leslie Rogers, one of the principals of the Suwannee County Mall partnership, and a new cost-plus contract was consummated on February 26, 1976 to replace the former 1975 agreement. There is conflicting evidence as to whether the bank or the other principals of the mall partnership were ever made aware of this new agreement. Because of an ever deepening economic crisis, Bucheck in April 1976 filed liens in the county’s official records for $119,161.81.

On May 20, 1976 the Suwannee County Mall, Ltd., conveyed title of the mall to Saco Development. Saco included all of the Suwannee County Mall, Ltd. principals with the exception of Rogers. Part of the conveyance agreement provided that Saco would assume “the” construction agreement. It was unclear whether this clause referred to the original 1975 agreement or the newer cost-plus contract. Bucheck maintained the conveying agreement pertained to the cost-plus agreement, but the principals of Saco countered that Rogers had never informed them of the cost-plus agreement that he had executed. Consequently, being unaware of the later agreement, the Saco principals assert that they intended to refer to the original 1975 contract for $51,900.

I.

In the first action, Bucheck filed suit against Saco, claiming that it was a third-party beneficiary of the conveyancing agreement clause, which stated that Saco would assume all liability for “the” construction contract. The question was whether the original 1975 or the cost-plus contract was intended as “the” construction contract. Aside from the conflicting testimony as to whether the Suwannee County Mall principals, who later became principals of Saco, were aware of the cost-plus contract, Bucheck presented evidence of its lien for $119,161.81, arguing that the lien was filed based on the existence of the cost-plus contract; that the lien was filed prior to the time Saco took title to the mall; that, as a result, the Saco principals were on notice as to the cost-plus contract or, at the minimum, on inquiry notice. By special verdict, the jury determined that Saco did not intend to assume the cost-plus contract. Appellant contends that the lower court should have instructed the jury that, as a matter of law, the Saco principals were aware of the cost-plus agreement.

We find no error. Appellant’s argument confuses two principles — knowledge and intent. “Knowledge” means acquaintance with a fact, the act or state of understanding. On the other hand, “intent” means purposing. People v. Henry, 23 Cal.App.2d 155, 72 P.2d 915, 921 (1937). If one knows of something, that doesn’t mean that he or she intends something.

To be sure, knowledge of a factual circumstance may influence the intent behind a subsequent act. This view is implicit in the general rule of contract construction that circumstances surrounding the parties’ execution of a contract should always be considered in ascertaining intent. 11 Fla. Jur.2d Contracts § 110 nn. 14-15 (1979). However, whether a party intends something merely because he or she has knowledge of a fact is no more than a question of intent. In this instance the jury determined that issue against the appellant.

Bucheck’s contention that the Saco principals were at least on inquiry notice of the cost-plus contract by virtue of the lien fails for another reason. Section 713.08(5), Florida Statutes (1981), states that recordation of a claim of lien constitutes constructive notice of the contents and effect of the lien. See also, 22 Fla.Jur. Mechanics Liens § 31 (Supp.1982). Constructive notice is a legal inference that is imputed to one not having actual notice. Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (1932); 23 Fla.Jur. Notice & Notices § 4 (1959). It is a fiction that is imputed by the law primarily for the promotion of sound policy. 66 C.J.S. Notice § 6 (1950); Schoedel v. State Bank of Newburg, 245 Wis. 74, 13 N.W.2d 534, 535 (1944). It is not actual knowledge of a fact. 66 C.J.S. Notice § 6 n. 90(2) (1950). Constructive notice would merely impute knowledge of the lien. It would not impute knowledge of the facts giving rise to the lien or even put one on inquiry notice.

The position advocated by the appellant— that the Saco principals knew of the cost-plus contract by virtue of the recorded lien — is one of implied actual notice. Actual notice may of course be either express or implied. Sapp, 141 So. at 127; Hagan v. Sabal Palms, Inc., 186 So.2d 302, 313 (Fla. 2d DCA 1966), cert. denied, 192 So.2d 489 (Fla.1966). It is conceivable that the recorded lien might have presented implied actual notice, because the same fact may sometimes constitute constructive notice and implied actual notice. First Federal Savings & Loan Association of Miami v. Fisher, 60 So.2d 496, 499 (Fla.1952). However, the distinction between constructive and implied actual notice is crucial and rests on the factual inferences accompanying implied actual notice. Bueheck’s argument that the Saco principals had the ability to gain the truth or facts behind the lien and had a duty to do so forms the underpinnings of the concept of implied actual notice. While the Florida Supreme Court in Sapp, a 1932 opinion, stated that a trial court could draw this factual inference as a matter of law when equitable to do so, the more modern view is to leave the task of drawing factual inferences to the trier of fact, assuming that there are sufficient facts to require a further inquiry. McDonald v. McGowan, 402 So.2d 1197, 1200 (Fla. 5th DCA 1981), rev. dismissed sub nom., Alimon v. McDonald, 411 So.2d 380 (Fla.1981); see also 66 C.J.S. Notice § 6 n. 8 (1950). The jury rejected any implied actual notice by its verdict, and we affirm.

II.

The second action stems from occurrences after Saco Development took title to the mall on May 20, 1976. To bolster its financial position, Saco consummated a joint venture agreement with the bank’s nominee, W.E. Music, on June 17, 1978. The agreement provided that the parties would share in “all valid liens or debts due” at the mall.

Bucheck brought an action against Saco, the bank and its alleged nominee, W.E. Music, contending that it was a third-party beneficiary of the joint venture agreement by virtue of the clause that Saco and Music would share in “all valid liens or debts due.” Appellees generally denied this. Approximately a week before trial the appellees sought leave to amend their answer to Bu-check’s complaint by asserting that the venture agreement had been rescinded and that Bucheck had never manifested an acceptance of the joint venture agreement prior to its rescission. Although the court denied the request for leave to amend, we are unable to discern the reason, because there is apparently no record transcript of this hearing.

At a pre-trial conference the day of trial, Bucheck’s counsel requested the court to prevent the appellees from introducing any evidence of the termination of the agreement, except in support of the general denial of the existence of the contract as having been created to benefit Bucheck, as a third-party beneficiary. The court did not respond at this point. During the trial, counsel for the bank questioned Joseph Bucheck of Bucheck Construction, whether or not he was aware that the joint venture had been terminated when he first learned of its existence. Bucheck stated that he did not know if it had been terminated. No objection was made to this question. Later, a deposition of one of the Saco principals was read to the jury in which the witness stated that as far as he was concerned the joint-venture agreement had been terminated. After the deposition had been read to the jury, appellant’s counsel noted to the court that he was under the impression that he had a continuing objection as to all questions concerning affirmative defenses to the contract. The court in somewhat cryptic language appeared to approve trying the issue based on the defense of termination of the joint venture agreement, to which Bu-check’s counsel responded by demanding that the best evidence of the termination of the joint venture should be required. This evidence, a termination/hold harmless agreement, was apparently never produced.

In his closing argument, the bank’s counsel argued to the jury that termination of the joint venture would deprive Bucheck of any rights in the agreement. Subsequently, the jury was charged that the parties may effectively rescind, vary or abrogate their contract as they desire at any time prior to a manifestation of acceptance, adoption or action in reliance by a third-party beneficiary. We are unable to determine in the record any objection to this instruction. Upon the agreement of the parties, a special verdict form was submitted to the jury posing the narrow question: “Was JOSEPH BUCHECK CONSTRUCTION CORPORATION an intended beneficiary under the Joint Venture Agreement dated June 17,1976? YES_NO -” The jury returned the verdict forms, marked in the negative.

A host of legal problems springs from the foregoing factual synopsis and the arguments of the parties. One week before trial the lower court disallowed appellee’s request to amend its answer by alleging that Bucheck could not argue a third-party beneficiary theory due to termination of the joint venture agreement. Termination in this case was in the nature of rescission of the joint venture agreement. At least one federal court has held that rescission is an affirmative defense. Bagwell v. Susman, 165 F.2d 412, 415 (6th Cir. 1947); cf. Mobil Oil Corp. v. V.S.H. Realty, Inc., 408 So.2d 585, 586 (Fla. 5th DCA 1981). While we have found no Florida cases expressly stating that rescission is an affirmative defense, it appears that rescission falls within the general definition of that which is included within the nature of an affirmative defense:

Otherwise stated, it is any matter which avoids the action, and which the plaintiff is not bound to prove in the first instance in support of it, but which under the rules of evidence the defendant must affirmatively establish. A defense that concedes that the plaintiff once had a good cause of action, but insists that it no longer exists, involves new matter. If what is alleged amounts to a denial, it is not new matter; nor is it new matter if the facts alleged might have been proved under a denial.

61A Am.Jur.2d Pleading § 153 (1981) (footnotes omitted). As an affirmative defense, it is waived unless pleaded. Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203, 206 (Fla. 4th DCA 1973); Fla.R.Civ.P. 1.110(d); see generally, 25 Fla.Jur. Pleadings § 77 (1959).

An exception to this rule is that an affirmative defense, tried by express or implied consent of the parties, is to be treated as if it had been raised in the pleadings. Garrett v. Oak Hall Club, 118 So.2d 633, 635 (Fla.1960); Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 366 So.2d 90, 93 (Fla. 1st DCA 1979), cert. denied, 376 So.2d 75 (Fla.1979). Appellee argues that by virtue of the question posed to Joseph Bucheck without objection and the recital of comments by the deposition witness, this case falls within the exception to the rules in Garrett and Massey-Ferguson. We think not.

The appellant had succeeded only a week before trial in obtaining a denial of the appellees’ attempts at pleading rescission as an affirmative defense. The appellant’s counsel carefully placed the court and appellees’ attorneys on notice immediately prior to trial that it would view any reference to the termination of the joint venture as prejudicial and objectionable. Appellant made an unequivocal objection on the record after the deposition reference to termination of the joint venture. There was no express or implied consent to present evidence of this issue to the jury.

Having held that it was error to have permitted the introduction into evidence of termination of the joint venture agreements, we must determine whether the error was of such magnitude as to require reversal. “The test to be applied by the appellate court in determining whether prejudicial error has been committed is whether, but for the error complained of, a different result would have been reached at the trial.” Wallace v. Rashkow, 270 So.2d 743, 745 (Fla. 3d DCA 1972); accord, Sanlando Utility Corp. v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982). Our review of the record convinces us that without these errors a different result might have occurred.

It is true that the jury was not asked specifically in the special verdict interrogatory to consider whether the joint venture had been rescinded. The interrogatory expressly asked only that the jury ascertain whether the appellant was an intended third-party beneficiary of the joint venture agreement. However, the presentation of evidence pertaining to the rescission of this agreement over objection was clearly poisonous when considered against the facts: (1) that the Bank’s attorney argued to the jury in summation that rescission would deprive Bucheck of any rights under the joint venture agreement; (2) that appellant only a week before trial had been assured that the affirmative defense of rescission would not be tried, while at trial the affirmative defense became an issue that the appellant was apparently unprepared to counter; (3) that the rescission was referred to more than once in testimony, and (4) the best evidence of the rescission was apparently never introduced into evidence.

Therefore, it was prejudicial to have permitted the testimony concerning termination of the joint venture agreement into evidence. We reverse the final judgment on this point only and remand for retrial. In doing so, however, we consider it appropriate to observe that it appears from the record we have before us that the issue of rescission of the third party agreement was relevant — assuming that the admission into evidence of the rescission would not violate the best evidence rule — and that it would have furthered the cause of justice by trying this issue. It is unclear precisely why leave to amend was not granted, especially in view of the fact that Florida Rule of Civil Procedure 1.190(a), relating to the amendment of pleadings, provides: “Leave of court shall be given freely when justice so requires.” See also Singh v. Tolz, 380 So.2d 1326, 1329 (Fla. 4th DCA 1980). Generally, a court will permit an amendment in favor of resolving a case on its merits. New River Yachting Center v. Bacchiocchi, 407 So.2d 607, 609 (Fla. 4th DCA 1981). Nonetheless, we are cognizant of the fact that leave to amend vests a certain degree of discretion in the trial bench. Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So.2d 679, 680 (Fla. 1st DCA 1982); see also Thomas v. Sports Car Club of America, Inc., 386 So.2d 272, 274 (Fla. 4th DCA 1980) (no abuse of discretion in denying leave to amend to allege matters in avoidance of a release due to lengthy pre-trial opportunity to amend).

Therefore, the final judgment is reversed and remanded for a new trial with regard to the action on the joint venture agreement. The lower court is directed to consider permitting amendment of the pleadings to include the affirmative defense of rescission to Bucheck’s allegations.

AFFIRMED in part, REVERSED in part, and remanded for further consistent proceedings.

McCORD and SHAW, JJ., concur.

      . No issue of authority to find Rogers’ co-principals on imputed notice was raised below or will be addressed by this opinion.

      . If the joint venture agreement had been rescinded, it appears that such act would surely have been in writing. Further, the extent and time of rescission would be relevant in indicating that the contents of the writing would be in question. “Where the terms or contents of a written instrument are directly involved in the issues, the instrument itself is undoubtedly the best evidence of its contents, and secondary evidence thereof cannot be admitted until the nonproduction of the original instrument has been satisfactorily accounted for.” 23 Fla. Jur.2d Evidence & Witnesses § 199 (1980); § 90.952, Florida Statutes (Supp.1978); cf. Nottingham v. Schulhof, 61 So.2d 912 (Fla.1952).

      . Because the appellant was not an express third-party beneficiary, a determination was required as to whether or not it was an intended third-party beneficiary. Assuming that the appellant was not intended as a beneficiary at the time the joint venture was consummated, the bank would have no liability, because incidental third-party beneficiaries have no right to sue on a particular contract. Hurley v. Lano International, Inc., 569 S.W.2d 602 (Tex.Civ.App.1978); Renel Construction, Inc. v. Brooklyn Cooperative Meat Distribution Center, Inc., 59 A.D.2d 391, 399 N.Y.S.2d 429 (App.Div.1977), aff’d sub nom., Depot Construction Corp. v. City of New York, 46 N.Y.2d 859, 414 N.Y.S.2d 511, 387 N.E.2d 222 (1979); 17 Am. Jur.2d Contracts § 307 (1964).

      .Assuming that Bucheck was an intended beneficiary of the joint venture agreement, Saco and Music would have been free to rescind, vary, or abrogate the agreement as they saw fit, without the assent of third party beneficiary, Bucheck, unless Bucheck had accepted, adopted or acted upon it. Mitchell v. Marklund, 238 CaI.App.2d 398, 47 Cal.Rptr. 756 (1965); 17 Am.Jur.2d Contracts § 317 (1964). Consequently, the issue of acceptance or action in reliance by Bucheck before an apparent rescission of the joint venture by Saco and Music is relevant to disposition of this case.


text:
    J.C. PENNEY COMPANY and Liberty Mutual Insurance Company, Appellants, v. Irving LEVINE, Appellee.
    No. AF-414.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Patrick J. Malone, Beisler & Wells, West Palm Beach, for appellants.
    Patrick O. Helm, Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & De Castro, West Palm Beach, and Joseph C. Segor, Miami, for appellee.
   PER CURIAM.

The deputy commissioner’s order is affirmed except for that part which excuses the late filing of Dr. Penner’s medical reports for treatment, rendered after July 11, 1980.

The claimant was treated by several doctors prior to Dr. Penner, but during the latter’s treatment it was discovered that claimant’s injuries had been caused by his industrial accident. Ordinarily, the deputy must find that there was good cause for the failure to file timely medical reports, and that the failure did not result in prejudice to the employer/carrier. Cedars of Lebanon Health Care Center, Inc. v. Summerset, 409 So.2d 185 (Fla. 1st DCA 1982); Section 440.13(1), F.S. However, where it is clear from the record on appeal that the failure to file Section 440.13(1) reports resulted from a confused legal situation or complex factual circumstances, an award of medical expenses will be affirmed in the absence of the requisite finding of good cause. Joy Footwear Corporation v. Folgueral, 409 So.2d 188 (Fla. 1st DCA 1982); Exxon Company, U.S.A. v. Rodriguez, 410 So.2d 571 (Fla. 1st DCA 1982).

Appellee properly concedes that no good cause existed for Dr. Penner’s failure to timely file reports after the compensable nature of the injury was discovered on July 11. Accordingly, the deputy’s order is reversed insofar as it requires the employer/carrier to pay for medical treatment rendered by Dr. Penner after that date for which reports were not timely filed, and in all other respects is affirmed.

AFFIRMED in part and REVERSED in part.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


author: SHAW, Judge.

text:
    Alan V. BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. AJ-265.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Melanie Ann Hines, Asst. Public Defender and Garry D. Adel, Legal Intern, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   SHAW, Judge.

Appellant appeals a judgment holding him in contempt of court for failing to provide handwriting exemplars. He urges that the trial court committed reversible error in conducting the show cause hearing in his absence. We agree and reverse.

The facts are simple. Bradley was charged with forgery and uttering a forgery. The court ordered him to provide “any and all exemplars of his handwriting as deemed necessary.” Exemplars were given but the State suspected that he was attempting to disguise his handwriting. On the State’s motion, a second order was entered which specified that the exemplars be of his true handwriting. The second exemplars were given but, again, the State suspected that Bradley was attempting to disguise his handwriting. On petition of the State, Bradley and counsel appeared in court on 29 June 1981 where the court issued a verbal show cause order as to why Bradley should not be held in contempt for failing to provide the ordered exemplars. A written show cause order was issued and hearing was set 4 August 1981. Bradley’s counsel appeared at the 4 August hearing and advised the court that he had not seen nor heard from Bradley since the 29 June 1981 court appearance. The court ruled that Bradley had waived his right to be present by his absence and, over objection of counsel, proceeded with the criminal contempt hearing. After the presentation of the State’s evidence, the court found Bradley to be in indirect criminal contempt for failing to provide handwritten exemplars as ordered. An arrest warrant directing that Bradley be held without bond was issued. He was arrested on 8 January 1982.

Criminal contempt trials “are effectively criminal in nature and persons accused of contempt are as much entitled to the basic constitutional rights as are those accused of violating criminal statutes.” Aaron v. State, 284 So.2d 673, 675 (Fla.1973). It is “error to enter an order of indirect criminal contempt without adhering to the requirements of Fla.R.Crim.P. 3.840 ...” and “... procedural due process of law demands that the proceedings be conducted in conformity with Fla.R.Crim.P. 3.840 . . . . ” Pugliese v. Pugliese, 347 So.2d 422, 426 (Fla.1977).

Florida Rules of Criminal Procedure 3.840(a)(4) and (a)(7) entitle the defendant, inter alia, to testify in his own defense and to present evidence of mitigating circumstances. There is no suggestion in the rule that proceedings may be had without the presence of the defendant. Rule 3.180(b) provides two exceptions whereby a criminal trial may proceed with the defendant absent: first, where the defendant is present at the beginning of the trial but thereafter voluntarily absents himself without leave of court; or, second, where the defendant is removed from the presence of the court because of his disruptive conduct. Neither of these two exceptions occurred in the present case, and, without Bradley present, the indirect criminal contempt proceeding was not conducted in conformity with rule 3.840.

We appreciate the anguish of the trial judge at the loss of valuable court time when a duly noticed and properly scheduled proceeding is frustrated by the failure of the defendant to appear. However, in this instance, issuance of an arrest warrant for failure to appear at the show cause hearing would have preserved both the dignity of the court and the basic constitutional rights of the defendant.

REVERSED and REMANDED for proceedings consistent with this opinion.

LARRY G. SMITH and JOANOS, JJ., concur.


author: WENTWORTH, Judge.

text:
    The CROWN HOTEL and Kent Insurance Company, Appellants, v. Philip FRIEDMAN and Division of Workers’ Compensation, Appellees.
    No. AK-425.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Rehearing Denied Nov. 2, 1982.
    Donald D. Gillis of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for appellants.

      Ronnie Klein Witlin of Witlin & Witlin, Miami, for appellees.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order which patently does not dispose of all matured issues in controversy between the parties. The date of maximum medical improvement having been set, the issue of wage loss was ripe for adjudication. The deputy commissioner’s decision to withhold determination of that issue renders the order interlocutory and non-appeal-able. Town of Palm Beach v. Watts, 7 FLW 1330, Case No. AG-291 (Fla. 1st DCA 1982).

The appeal is therefore dismissed sua sponte without prejudice to seek review of the order in the event of an appeal from a final order on the claim.

McCORD and BOOTH, JJ., concur.