author: HUBBART, Chief Judge. DANIEL S. PEARSON, Judge,

text:
    REX UTILITIES, INC. and United States Fidelity & Guaranty Co., Appellants, v. David L. GADDY, as Personal Representative of Karen Sue Gaddy, a deceased minor, for the benefit of the decedent’s estate; David L. Gaddy, individually; and Merry A. Gaddy, individually, Appellees.
    No. 79-2141.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 1, 1982.
    Steven R. Berger, Miami, for appellants.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and Charles R. Stack, Coral Gables, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central issue raised by this appeal is whether a defendant in a negligence action arising out of a motorcycle accident is entitled to introduce evidence and argue to the jury as a comparative negligence defense that the plaintiff was not wearing protective headgear at the time the accident occurred in violation of Section 316.211(1), Florida Statutes (1977), where the defendant establishes that: (1) the plaintiff was of the class the above statute was intended to protect [i.e., a motorcycle rider], and (2) the injury suffered by the plaintiff in the accident was of the type the statute was intended to prevent [i.e., a head injury]. We hold that such a defendant is not so entitled to prove and argue such a statutory violation as a comparative negligence defense because the above showing, without more, fails to establish, as required by law, that the above statutory violation by the plaintiff was a proximate cause of the plaintiff’s head injury. We, accordingly, affirm the final judgment under review.

I

The facts pertaining to the above issue are as follows. The plaintiffs’ decedent Karen Gaddy died from a severe head injury when she was thrown from a motorcycle on which she was a passenger when the motorcycle ran over a hidden trench alongside the road. Suit was brought by the estate and parents of Karen Gaddy against the defendant Rex Utilities, Inc. [and its insurer, United States Fidelity & Guaranty Co.] for negligently perpetrating this hazardous condition.

At trial, the defendants sought to introduce in evidence and later argue to the jury as a comparative negligence defense that the plaintiffs’ decedent was not wearing protective headgear when the accident occurred in violation of Section 316.211(1), Florida Statutes (1977). The only evidence adduced below on whether the above statutory violation was a proximate cause of the head injury sustained by the plaintiffs’ decedent came from the treating neurosurgeon who testified below, outside the jury’s presence, as follows:

“Q. Is there a possibility that it [wearing a helmet] would have prevented the death?
A. I have no way of knowing. In my experience I have seen patients who have been dead on arrival from head injuries with helmets on. I have seen other situations where patients came in and they have survived. It is an unpredictable thing.
* * * * * *
Q. Do you feel that a helmet would have lessened the seriousness of that blow and it could have resulted in an injury but not death?
A. Not necessarily.
Q. Can you explain that to me?
A. Yes. I can just draw a conclusion based upon my experience.
When I see a patient come into the emergency room dead on arrival with a head injury with a helmet on, the helmet is not doing anything.
The death is caused by a severe force of impact and not by a helmet. The helmet is designed to absorb just so much impact. I don’t know that this particular force would have been prevented by this helmet overcoming the effects of the force. In such cases, the helmet is rendered useless.
Q. Let us not talk about your experience. Let us talk about this case.
A. I cannot draw any conclusions in this case.”

Thereafter the trial court specifically invited the defendants to introduce further evidence on the proximate cause issue, but the defendants declined to do so. The trial court, accordingly, precluded the defendants from introducing evidence and arguing to the jury that the plaintiffs’ decedent had violated the above statute when the accident occurred and was, therefore, guilty of comparative negligence; specifically, the trial court ruled that the defendants had failed to establish, as required by law, that the statutory violation in this case was a proximate cause of the head injury sustained by the plaintiffs’ decedent.

The jury subsequently found for the plaintiffs in this cause and a final judgment was entered thereon. The defendants appeal.

II

The law is well-settled that it is “negligence per se” for a defendant in a negligence action to violate a statute “which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198, 201 (Fla.1973). Section 316.-211(1), Florida Statutes (1977), which requires motorcycle operators and riders to wear protective headgear, clearly is such an above-stated statute as its sole purpose is “to preserve the life and health of the cyclist” against head injury, State v. Eitel, 227 So.2d 489, 490-91 (Fla.1969); as such, the statute establishes “a duty to take precautions [i.e., wear protective headgear] to protect a particular class of persons [i.e., motorcycle operators and riders] from a particular injury or type of injury [i.e., a head injury].” deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d at 201. It does not follow, however, that a violation of this type of statute by itself constitutes a case of actionable negligence. “It must also be established by a plaintiff [1] that he is of the class the statute was intended to protect, [2] that he suffered injury of the type the statute was designed to prevent, and [3] that the violation of the statute was the proximate cause of his injury.” deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d at 201; see also Stanage v. Bilbo, 382 So.2d 423, 424 (Fla. 5th DCA 1980); Bryant v. Jax Liquors, 352 So.2d 542, 544 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978); Duncan v. Monark Boat Co., 330 So.2d 843, 844 (Fla. 1st DCA 1976). Moreover, this established law applies with equal force to both a plaintiff who seeks to establish a case of actionable negligence as well as a defendant, as here, who asserts a comparative negligence defense. W. Prosser, Torts 202-03 (4th ed. 1971); compare Clark v. Sumner, 72 So.2d 375 (Fla.1954).

Ill

Turning to the instant case, we have no problem in concluding that the trial court was eminently correct in precluding the defendants from introducing evidence and later arguing to the jury that the plaintiffs’ decedent was guilty of comparative negligence in this cause by. failing to wear protective headgear at the time of the subject accident in violation of Section 316.-211(1), Florida Statutes (1977), because no evidence was adduced below, as required by law, that the violation of the above statute was a proximate cause of the head injury sustained by the plaintiffs’ decedent. Indeed, the expert testimony adduced in the trial court below established that it was impossible to determine whether the failure of the plaintiffs’ decedent to wear protective headgear in any way contributed to the head injury sustained by the plaintiffs’ decedent; moreover, the defendants below declined the trial court’s specific invitation to introduce any further evidence on the proximate cause issue. As such, the trial court had no alternative but to exclude the subject evidence and argument for failure of the defendants to establish, as required by law, that the violation of the above statute was a proximate cause of the head injury sustained by the plaintiffs’ decedent.

The defendants, however, argue that they were entitled to introduce evidence and argue to the jury the above statutory violation as a comparative negligence defense upon a two-step showing that: (1) the plaintiff injured was of the class the statute was intended to protect [i.e., a motorcycle rider], and (2) the injury suffered by the plaintiff was of the type the statute was designed to prevent [i.e., a head injury]; it is urged that the proximate cause element is implicitly established as a permissible jury inference upon this two-step showing. [Appellant’s main brief, pp. 19 — 21]. Although the above two elements were absolute prerequisites under the law for admitting proof of the statutory violation herein and were, as urged, clearly established in this case, we cannot accept the defendants’ ultimate conclusion that proof of these two elements, without more, implicitly establishes the third element of proximate cause. Indeed, to accept this position is, in effect, to read out the proximate cause element altogether as established by prior decisional law in cases of this nature. We specifically decline to do so. Moreover, we are totally unconvinced that State v. Eitel, 227 So.2d 489 (Fla.1969), requires us to reach a contrary result.

We have carefully considered the remaining contentions urged by the defendants upon this appeal and find them to be without merit. The final judgment under review is, accordingly,

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

The statute sought to be argued by Rex, Section 316.211(1), Florida Statutes (1977), provides:

“No person shall operate or ride upon a motorcycle unless he is properly wearing protective headgear securely fastened upon his head which complies with standards established by the department.”

The trial court held that a party claiming a right to introduce the statute to prove negligence (here the comparative negligence of Karen Gaddy) must first show that (a) the person injured is of the class of persons the statute was designed to protect, (b) the injury suffered was of the type the statute was designed to prevent, and (e) the violation of the statute was a proximate cause of the injury. See deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973). It is undisputed that Rex satisfied the first two prongs of deJesus by showing that Karen was a helmetless rider on the motorcycle and that her death was caused by a head injury. But because the trial court determined that Rex did not show that the violation of the statute was a proximate cause of Karen’s death, it refused to allow this violation to be considered by the jury.

Rex contends that its burden to show causation is satisfied under the circumstances of the present case by the showing that Karen violated the statute and that her death resulted from a head injury. In my view, Rex’s contention is sound if, as a matter of ordinary experience, the particular omission (the failure to wear a helmet while riding upon a motorcycle) might be expected to produce the particular result (death or severe injury resulting from a blow to the head), and that result, in fact, had followed. Under such circumstances, a conclusion is permissible that the causal relation exists. W. Prosser, Law of Torts, § 41, Causation In Fact, at 242-43 (4th ed. 1971).

What, then, is a matter of ordinary experience or common knowledge which, in the stead of other evidence, provides the basis from which the causal sequence may be inferred?

“Thus it is every day experience that unlighted stairs create a danger that someone will fall. Such a condition ‘greatly multiplies the chances of accident, and is of a character naturally leading to its occurrence.’ When a fat woman tumbles down the steps, it is a reasonable conclusion that it is more likely than not that the bad lighting has played a substantial part in the fall. When a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved him; but the experience of the community permits the conclusion that the absence of the guard played a significant part in the drowning. Such questions are peculiarly for the jury; and whether proper construction of a building would have withstood an earthquake, or whether reasonable police precautions would have prevented a boy from shooting the plaintiff in the eye with an airgun, are questions on which a court can seldom rule as a matter of law. And whether the defendant’s negligence consists of the violation of some statutory safety regulation, or the breach of a plain common law duty of care, the court can scarcely overlook the fact that the injury which has in fact occurred is precisely the sort of thing that proper care on the part of the defendant would be intended to prevent, and accordingly allow a certain liberality to the jury in drawing its conclusion.” Id. at 242-43 (footnotes omitted).

And see W. Malone, Ruminations On Cause-In-Fact, 9 Stanford L.Rev. 60 (1956).

By enacting Section 316.211(1), our Legislature, in effect, determined that protective headgear “affords effective protection against a significant possibility of grave or' fatal injury.” State v. Eitel, 227 So.2d 489 (Fla.1969). Upholding the constitutionality of the identically worded predecessor statute, the Florida Supreme Court noted:

“[Djeath has come with increasing and alarming frequency to motor-cyclists in recent years. Seventy-seven per cent of the motorcycle accident deaths studied by a California physician were caused by craniocerebral injury with no potentially fatal trauma to other parts of the body. A New York legislative report, citing the rapid increase in number of motorcycle accidents, stated that 89.2% of these accidents resulted in injury or death and that almost all fatalities involved head injuries, most of which could have been avoided or ameliorated by the use of a proper helmet. An orthopedic surgeon testified in this case that he had cared for six persons injured in motorcycle crashes while wearing protective helmets. None had severe head injury. The inconvenience to the person will vary, but the danger is real and the protection reasonably adapted to its avoidance.” Id. at 491 (footnotes omitted).

Thus, the statute declares the everyday experience; and implicit in the imposition of the duty to wear a helmet is a recognition that a breach of that duty will causally contribute to severe injuries or death, assuming a head injury occurs.

Therefore, in my view, Rex should not have been required to prove any more causation than it did as a predicate to introducing the statute to show Karen’s negligence; and if the plaintiffs wanted to show that Karen’s negligence did not contribute to the severity of the injury or the death, the burden should have been theirs to make that showing. I would reverse and remand for a new trial.

      . This statute provides as follows:
      “No person shall operate or ride upon a motorcycle unless he is properly wearing protective headgear securely fastened upon his head which complies with standards estab-Iished by the department.” § 316.211(1), Fla.Stat. (1977).
      A violation of the above statute is deemed an infraction punishable by a civil penalty. §§ 316.655, 318.18, Fla.Stat. (1977).

      . The present case must be distinguished from cases where there is no duty imposed on the plaintiff. Compare, e.g., Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966) (plaintiffs failure to wear seat belts iS not contributory negligence in the absence of a law requiring their use); Rogers v. Frush, 257 Md. 233, 262 A.2d 549 (1970) (plaintiffs failure to wear motorcycle protective helmet not admissible where failure occurred three years before state enacted law requiring the wearing of such protective headgear).

      . Unlike the strict liability case, see, e.g., Sloan v. Coit International, Inc., 292 So.2d 15 (Fla. 1974); Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959), in which the causal relation between the statutory violation and the injury need not be shown, and in which, therefore, proof of lack of causation is irrelevant, the present case is simply one in which causation is an issue for the jury to decide, and the violator of the statute, having “made more difficult if not impossible the means of proving the possible damaging results of [her] own act,” should have the burden of showing non-causation. See Gardner v. National Bulk Carriers, Inc., 310 F.2d 284, 287 n. 4 (4th Cir. 1962), cert. denied, 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721 (1963).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CONSTRUCTION SYSTEMS AND ENGINEERING, INC., Appellant/Cross-Appellee, v. JENNINGS CONSTRUCTION CORPORATION, Appellee/Cross-Appellant.
    No. 81-687.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 11, 1982.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Dale F. Webner, Miami, for appellant/cross-appellee.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for appellee/cross-appellant.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Appellant Construction Systems, defendant/counterplaintiff/third-party plaintiff below, appeals a final judgment entered by the court following denial of its demand for jury trial. Appellee Jennings, plaintiff/counterdefendant below, cross-appeals from the final judgment.

Jennings and appellant were the contractor and subcontractor, respectively, for three construction projects at the Ocean Reef Club in Monroe County. Following disputes over appellant’s work performance and Jennings’ failure to pay appellant, appellant filed liens against the property for overdue payments in May, 1978. One month later, Jennings filed suit seeking damages for breach of contract, discharge of the liens and transfer of the liens to other security. Appellant answered and counterclaimed for damages for breach of contract and conversion, and filed a third-party complaint for foreclosure of liens. On Jennings’ motion, the liens were transferred to a surety bond. Despite appellant’s demand for jury trial, the court ruled that both parties initially invoked the equitable jurisdiction of the court and heard the cause non-jury. Under the final judgment, Jennings took nothing by its damage claim and appellant took nothing by its counterclaim. The final judgment also cancelled the liens and ordered the release bonds can-celled.

Although numerous other issues have been raised by both sides on this appeal, we have determined that the trial court’s denial of appellant’s constitutional right to a jury trial mandates reversal.

In actions cognizable at law, the right to trial by jury is guaranteed by our constitution. Hightower v. Bigoney, 156 So.2d 501 (Fla.1963). Where both equitable and legal claims arise in the same case, this cannot serve to deprive either party of the right to a jury trial of issues traditionally triable by jury. Padgett v. First Federal Savings & Loan Association, 378 So.2d 58 (Fla. 1st DCA 1979), and cases cited. We hold that appellant was clearly entitled to a jury trial by virtue of the compulsory counterclaim seeking monetary damages for breach of contract and that the issues involved in the complaint and counterclaim are so intertwined that a jury trial should be afforded on all issues. Napolitano v. H. L. Robertson and Associates, Inc., 311 So.2d 757 (Fla. 3d DCA 1975); Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971).

The final judgment entered by the court is reversed and this cause is remanded with directions to proceed with a jury trial on ali issues.

Reversed and remanded.


text:
    Edward B. BULLARD, Appellant, v. Altha Elaine BULLARD, Appellee.
    No. 81-1680.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 9, 1982.
    Penzell & Diamond and Barry J. Clyman, Miami, for appellant.
    Spiegel & Singer and David H. Singer, Miami, for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   MELVIN, WOODROW M. (Ret.), Associate Judge.

Appellant-husband seeks review of those portions of a final judgment of dissolution of marriage, wherein the trial judge awarded to the wife the husband’s interest in the marital residence as lump sum alimony and the award of child support. The wife cross-appealed as to the award of child support.

The parties herein were married in 1974. One child was born and survived out of this marriage. During the marriage the parties were able to purchase a home with a low cost V.A. mortgage. This marital residence is the only substantial asset of the parties. Payments on the mortgage were made by the parties from both their individual incomes, which were pooled to meet every day expenses. At the time of the divorce, both parties were employed as teachers with Masters degrees in the Dade County school system. The husband had a net weekly income of $207.00 and the wife’s net weekly income was $242.00.

As to the husband’s first point on appeal, we agree that the trial judge abused his discretion in awarding the wife the husband’s interest in the marital residence as lump sum alimony. Considering all the facts in this case, we must rule out the necessity of that award as a support type lump sum alimony. Clearly, the husband’s disposable income is less than the wife’s, before considering the award for child support, which further lessened the husband’s disposable income. Thus, the lump sum alimony award can be sustained only as an equitable division of material property. Such an award may be necessary where title to assets acquired during the marriage is held by one party and there are no special equities or where there are other assets of the marriage requiring an equitable distribution of all the marital assets. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed 307 So.2d 186 (Fla.1975). However where, as here, the marital home is the only substantial asset accumulated during the marriage, there are no special equities or is no necessity for lump sum alimony for support and the home is jointly owned, there is no necessity for application of the remedy of lump sum alimony in order to make a just and equitable distribution of the home. That result is achieved by Section 689.15, Florida Statutes (1979) which provides that “. . . in cases of estates by the entirety, the tenants, upon dissolution of marriage, shall become tenants in common.” See: Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981); Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980); Hoch v. Hoch, 380 So.2d 499 (Fla. 2d DCA 1980); Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979).

By his second point, the husband alleges the trial court erred in denying his prayer for partition. We find this point to be without merit. First of all, the husband conceded that the wife and child should be allowed exclusive possession of the marital home for at least a limited period of time. Secondly, an award of exclusive possession and use of the marital home during the minority of children is proper, because it is in the nature of maintenance and support. See: Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981); Alford v. Alford, 364 So.2d 1255 (Fla. 2d DCA 1978); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 2d DCA 1976). Such awards are so frequently ordered that they have become a generally accepted principle of the law of divorce. Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981).

Lastly, both parties challenge the award of child support, alleging both exces-siveness or inadequacy. The trial court has broad discretion in determining the amount of child support to be awarded. Davis v. Davis, 371 So.2d 591 (Fla. 2d DCA 1979); Kahn v. Kahn, 78 So.2d 367 (Fla.1955). The burden is upon the party seeking to disturb the award of child support to show that the trial judge abused that discretion. Davis v. Davis, supra; Schultz v. Schultz, 290 So.2d 146 (Fla. 2d DCA 1974). Upon reviewing the facts of this ease and the amount of the award for child support, we find that neither the husband nor the wife has carried their burden to set aside the award. Thus, the award of child support is hereby affirmed.

In light of the foregoing, that portion of the final judgment of dissolution which awarded the wife the husband’s interest in the marital home is hereby reversed. The award of child support is affirmed. The cause is remanded to the trial court for further proceedings consistent herewith. If upon remand the trial court feels it appropriate to make any provisions for payment of the mortgage, taxes, insurance, and other expenses of the property based upon the present record or upon the taking of additional evidence, it may do so.

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


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

text:
    Steven T. ADDISON, et al., Petitioners, v. Honorable Cecil BROWN, etc., Respondent.
    No. 82-314.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.
    Rehearing Denied May 19, 1982.
    Richard G. Lubin of Lubin & Hamill, P. A., West Palm Beach, for petitioners Addison, Caso and Kilgus.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

ON WRIT OF PROHIBITION

Petitioners, Addison, Caso and Kilgus, were scheduled for trial on Monday, March 8, 1982, on a charge of trafficking in marijuana. By petition filed with this court late Friday afternoon, March 5, 1982, petitioners sought a writ to prohibit the trial, alleging a violation of the speedy trial rule, Florida Rule of Criminal Procedure 3.191. While considering the inconvenience to the trial court, the state attorney’s office, witnesses and jury veniremen who had been summoned to appear, as well as the costs which were involved if the trial were postponed, this court concluded that because the allegations, if true, mandated issuance of the writ, a response from the State was necessary. The order requiring a response acted as a stay and therefore the trial was postponed. Fla.R.App.P. 9.100(f).

Upon receipt of the State’s response and documents relevant to the cause, we determined that critical information was omitted which counsel for petitioners knew, or should have known, would affect this court’s decision to order a response. The omitted information was the fact that petitioners had obtained three or more continu-anees and had specifically waived speedy trial under the rule.

To circumvent those waivers, petitioners contended that the filing of an amended information by the State rendered the first one a “nullity” therefore bringing about a “speedy trial” violation because the amended information was filed more than one hundred eighty days after the arrest. There is abundant authority to establish that this argument is frivolous. See Conner v. State, 398 So.2d 983 (Fla. 1st DCA 1981); State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980); State v. Boyd, 368 So.2d 54 (Fla. 2d DCA) appeal dismissed 372 So.2d 466 (Fla.1979); Homer v. State, 358 So.2d 1176 (Fla. 3d DCA), cert. denied, 364 So.2d 886 (Fla.1978). Therefore, the petition was denied for want of legal or factual merit.

Of more concern to this court than the outcome of this petition, was the part played by Lubin, counsel for petitioners. While an attorney always carries a duty and obligation of candor with the court, Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA 1980); Newberger v. Newberger, 311 So.2d 176 (Fla. 4th DCA 1975), this is especially important when the relief requested is urgently sought and the time insufficient to allow the opposition to present a response. What is a minor factual omission when there is time for a response becomes a major omission when ordering a response will result in a postponement of the trial. Therefore, where a last minute petition is filed it is mandatory that counsel not only act in good faith, but that the petition and the attached appendix accurately and completely reflect all factual matters which may affect this court’s decision.

In the case before us, we directed Lubin to appear before this court to show cause why he should not be held in contempt. After consideration of his testimony and review of the material presented to us, we have concluded that while Lubin has breached his duty of candor to the court, there was no deliberate effort to conceal relevant facts and therefore no contempt.

We do, however, conclude that the lack of care and candor of Lubin and his staff in preparation of a petition having no legal or factual merit warrants the imposition of sanctions pursuant to Florida Rule of Appellate Procedure 9.410. We hereby remand this matter to the Honorable Cecil Brown to assess against Richard G. Lubin, attorney for petitioner, sanctions consisting of a reasonble fee for the services of the assistant attorney general in preparing his response to the petition, plus all costs incurred by the state in summoning and paying witnesses and veniremen for the trial scheduled for March 8, 1982, if those witnesses or veniremen were not otherwise utilized.

DAUKSCH, C. J., and COWART, J., concur.

      . Petitioners alleged that because of time limitations, no copy of the lower court’s order was available. In addition, no transcript of the hearing below was included in the appendix.


text:
    The CITY OF LIVE OAK, Florida, a municipal corporation, and The Hartford Insurance Company, Appellants, v. SARGENT-SOWELL, INC.; State Farm Mutual Automobile Insurance Company; Robert W. Cross; Jerry R. Skipper and Richard Calvin Skipper, Appellees. Jerry R. SKIPPER, and Richard Calvin Skipper, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Robert W. Cross, The City of Live Oak, Florida, a municipal corporation, and The Hartford Insurance Company, Appellees.
    Nos. AC-487, AC-500.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Rehearing Denied June 7, 1982.

      Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for appellants/appellees City of Live Oak, Florida, and The Hartford Ins. Co.
    Dominic M. Caparello and Robert Scott Cox of Messer, Rhodes & Vickers, Tallahassee, for appellee Sargent-Sowell, Inc.
    Hamilton, James, Merkle & Young, West Palm Beach, for appellees/appellants Jerry R. Skipper and Richard Calvin Skipper.
    Darby, Peele, Page & Bowdoin, Lake City, for appellees State Farm Mut. Auto. Ins. Co. and Robert W. Cross.
   PER CURIAM.

This is a consolidated appeal concerning a vehicular collision which occurred at a traffic light in the City of Live Oak on 17 December 1975 between Richard Skipper and Robert Cross. The Skippers, father and son, filed suit against Cross and his insurer, the City of Live Oak and its insurer, Singer Manufacturing, and Sargent-So-well, Inc. The City cross-claimed for indemnity against the manufacturer, Singer, and the distributor, Sargent-Sowell, but later dropped Singer from its cross-claim.

At trial both Richard Skipper and Cross claimed they had a green light at the time of collision. There was evidence that the change period of the traffic light was so short and fast as to pose a traffic hazard. There was also evidence that the potential hazard posed by the light’s operations had been recognized by City residents and at least two City policemen since its installation approximately eight to nine months prior to the Skipper/Cross accident. The City maintained that it installed the light as received, relying on the representations of the distributor, Sargent-Sowell, but conceded that it, the City, had not complied with sections 316.008 and 316.131, Florida Statutes (1975), by conforming the traffic signal to uniform safety standards and by obtaining state certification and approval prior to installation.

Before the Skippers’ case went to the jury, they settled with Singer and Sargent-Sowell for $75,000 and $150,000 respectively. At the close of the evidence, on Sargent-Sowell’s motion, the trial court directed a verdict for Sargent-Sowell on the City’s cross-claim for indemnity on the ground that under Florida law there can be no indemnity between tortfeasors. The jury returned a verdict finding negligence of 25% by Richard Skipper, 25% by Cross, 50% by the City, and that the Skippers had suffered damages of $130,000. .

In accordance with section 768.31, Florida Statutes (1975), the trial court reduced the damages awarded by 25% for the negligence of Richard Skipper, and offset the remainder against the settlement of $225,-000 obtained by the Skippers from Singer and Sargent-Sowell. This ruling reduced the actual liability of Cross, the City, and their insurers, to zero. The trial court also awarded attorney’s fees and costs of $10,-818.10 against Cross, the City, and their insurers.

Several days after the jury verdict, it was discovered that certain proffered evidence, denied by the trial court out of the hearing of the jury, had been inadvertently sent to the jury. This evidence consisted of two traffic accident reports purportedly prepared by City Police Officer Bosserman, who investigated the accident. The reports were the same except that the second report deleted Bosserman’s comment that the faulty operation of the traffic light contributed to the accident.

Following the discovery of the jury’s receipt of the two traffic reports, the Skippers timely moved for a new trial and for permission to interview the jurors in order to determine any prejudice resulting from their consideration of the reports. Although the trial judge recognized that submission of the reports to the jury was error, both motions were denied.

Under Florida law indemnity can only be applied where the party seeking indemnity is solely, constructively, or derivatively liable. There can be no indemnity between joint tortfeasors. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979). The City’s theory that the jury might have found liability predicated solely upon the City’s ownership of the light is refuted by the record evidence. City officials testified that the traffic light was installed without complying with sections 316.008 and 316.131, Florida Statutes (1975). There was uncontradieted evidence that at least two City police officers were aware of the faulty operation of the traffic light well before the accident, and that the City continued to operate this instrument despite its known hazard. Even when the evidence is viewed in the light most favorable to the City, it is nevertheless obvious that any liability the City might incur could not, on the record, rest solely upon a theory of imputed or constructive negligence. Thus, there was no factual issue for the jury to resolve concerning indemnity, and the trial court did not err in directing a verdict. See Furr v. Gulf Exhibition Corp., 114 So.2d 27, 29 (Fla. 1st DCA 1959) and Ellen wood v. Southern United Life Insurance Co., 373 So.2d 392, 395 (Fla. 1st DCA 1979).

The Skippers contend on appeal that the jury verdict was contrary to the weight of the evidence in finding that Richard Skipper was negligent and the Skippers suffered only $130,000 in damages; that the trial court erred in denying the motion to interview jurors on their consideration of the improperly submitted traffic reports; and that the trial court erred in not granting a new trial when there was clear error in submitting the traffic reports to the jury. Appellees Cross and City cross-appeal the refusal of the court to offset the settlement by Singer and Sargent-Sowell against the attorney’s fees and costs awarded to the Skippers.

We find error in the trial court’s denial of the Skippers’ motion for a new trial. In denying the motion, the trial court acknowledged that submitting the two traffic reports to the jury was clear error. The court found the error harmless inasmuch as the jury returned a verdict for the Skippers on the liability issue and awarded damages in an amount completely offset by the Singer/Sargent-Sowell settlement. We are persuaded that the contents of the traffic reports and the improper manner in which they were received by the jury were so damaging to the Skippers’ claim as to have precluded a fair and impartial trial. We note first that both reports contain the unfounded conclusion of the investigating police officer that Skipper was at fault for failing to notice the traffic signal change from green to red. Because the evidence properly submitted on this issue consisted entirely of the contradictory claims of Richard Skipper and Cross that each had the right-of-way, the improperly submitted conclusion of an impartial, official investigator that Richard Skipper was at fault weighs heavily not only on who was at fault but, more significantly, on Richard Skipper’s credibility as an injured complainant testifying as to the extent of his injuries. These reports were properly proffered for a limited purpose out of the hearing of the jury, were denied, and yet were inadvertently submitted to the jury without restriction as to their limited purpose. Second, the reports were not subjected to direct and cross-examination in open court. As a result, evidence with a probative value of showing only that the City had attempted to conceal possible negligence on its part was first denied and then submitted to the jury in such a manner as to prejudice the proffer or. We note that this is not one of those instances where a party brings the error on itself and cannot be heard to complain. Jackson v. State, 359 So.2d 1190, 1193 (Fla.1978). The remaining points on appeal are mooted by our reversal.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    Timothy Ted COOPER, Appellant, v. STATE of Florida, Appellee.
    Nos. AF-438, AF-445.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Rehearing Denied June 8, 1982.
    Louis O. Frost, Jr., Public Defender, and Alan Chipperfield, Asst. Public Defender, Fourth Judicial Circuit, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

Appellant Cooper appeals two convictions for attempted first degree murder for which two consecutive forty-year sentences were imposed. Cooper raises multiple points on appeal. We reverse on the ground that cross-examination of Cooper on his silence at a previous trial violated his fundamental right not to be a witness against himself in violation of article I, section 9 of the Florida Constitution. Although this finding moots the remaining points raised by Cooper, we address certain of these points so as to prevent recurrence at any retrial.

Cooper was previously convicted on two charges of attempted murder. At this previous trial Cooper exercised his fundamental right not to testify. This Court reversed the convictions on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980). At retrial, Cooper chose to take the stand, contending that he had not premeditated the attempted murders and was guilty of lesser included offenses. Over objection, the State cross-examined Cooper on his silence at his previous trial. The trial court denied the objection to the cross-examination, a motion for mistrial, and a motion for a curative instruction.

The State urges that its cross-examination was permissible because Cooper’s previous silence was inconsistent with his testifying at retrial. We see no inconsistency and are not persuaded by the State’s argument that Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926) and Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) permit such cross-examination. Even if we were persuaded that federal case law permits such examination, we would be constrained to reverse since it is well settled that such examination is not permitted under Florida law and is reversible error. See Simmons v. State, 139 Fla. 645, 190 So. 756 (1939), Willinsky v. State, 360 So.2d 760 (Fla.1978), and Clark v. State, 363 So.2d 331 (Fla.1978).

Appellant further urges that the State’s action in cross-examining Cooper on his pri- or silence was so egregiously contrary to well-settled law as to constitute prosecuto-rial overreaching and to justify dismissing the information and discharging the defendant, Cooper. Although we agree that the questioning was constitutionally impermissible, a reversal is sufficient to remove the error and we see no prejudice to Cooper in receiving a new trial.

Appellant also argues that the trial court committed various other errors which prevented Cooper from receiving a fair trial. In instructing the jury on lesser included offenses, the trial court commented:

Ladies and Gentlemen, you may wonder why all these lesser included charges are given, and I will only tell you that wiser heads than mine have decreed as a matter of law they must be given.

In this connection, we note also the prosecutor’s improper comments in his closing argument that the lesser included offenses were “an old defense trick” when there was no chance of acquittal and the defense wants to get less than what the man really is guilty of. The trial court properly sustained an objection to these remarks. However, the import of both the trial court and prosecutor’s comments is essentially the same: the lesser included offenses are irrelevant. Because we reverse on other grounds, we have not attempted to determine whether these comments would warrant reversal. We limit ourselves to pointing out that both are improper and serve no useful or legitimate purpose.

Appellant further urges that other errors were committed by the prosecutor in his closing argument by reference to an unrelated prior conviction and to the inability of the police to determine Cooper’s motives because of the refusal of Cooper’s lawyer to permit further questioning of Cooper. The trial court denied an objection to the former and granted an objection to the latter. We consider both comments improper.

REVERSED and REMANDED for proceedings consistent with this opinion.

McCORD, ERVIN and SHAW, JJ., concur.


author: NESBITT, Judge.

text:
    Elizabeth Ann LIEBLER, Appellant, v. Robert F. LIEBLER, Appellee.
    No. 81-376.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied June 9, 1982.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and John L. Zavertnik and Paul A. Louis, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   NESBITT, Judge.

The wife appeals the final judgment of dissolution of marriage contending: (a) that the trial court erred in awarding her rehabilitative alimony for eighteen months, instead of awarding permanent alimony; (b) that the child support in the amount of $300 per month per child was inadequate to provide for the remedial schooling of two of the couple’s four minor children; and (c) that the trial court improperly denied her a one-half interest in common stock which she claims was the subject of a gift from her husband.

The husband cross-appeals contending that the trial court erred in awarding the husband’s one-half interest in the marital home to the wife; or, in the alternative, by not requiring the wife to convey to him her one-half interest in a jointly owned rental home.

The husband is a fifty-four-year-old practicing dentist with a substantial earning capacity and pension funds or plans sufficient to provide for his future retirement. The wife, thirty-nine years old, is a high school graduate who worked briefly as an airline stewardess prior to this sixteen-year marriage. She also worked briefly after the marriage as a reservation clerk for an airline but retired from employment so that the couple could start a family by adopting a child. After the family was completed by the birth of three more children, the wife worked as an airline recruiter for a short period in the early 1970’s. The wife has no other training or skills.

The parties jointly own a marital home valued at between $85,000 and $100,000, against which there is a $20,000 first mortgage. The rental home is valued at between $42,000 and $60,000 and is encumbered by a $24,000 mortgage. The husband owns an estimated $25,000 worth of common stock in a land investment corporation in the Florida Keys.

Two of the couple’s four minor children have learning disabilities. There was un-contradicted evidence from a child psychologist, an educational counselor, and a teacher, also supported by the husband’s own testimony, indicating the pointed need for remedial special education in varying degrees for these two children. Additionally, the husband expressed his desire that these children have such remedial attention.

Under Foss v. Foss, 392 So.2d 606, 607 (Fla. 3d DCA 1981) and Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981), the record will not support an award of rehabilitative alimony. The wife is a full-time mother with no marketable skills and no demonstrable employment possibilities. By the time her youngest children are no longer in need of her services, her ability to become employed will be further diminished. Since her marriage, her primary source of income has been her husband. Consequently, the judgment is reversed and remanded for the trial court to fix and determine an award of permanent alimony commensurate with the wife’s needs and the husband’s ability to provide.

The finding recited in the final judgment that there is no need for remedial education is contrary to the manifest weight of the evidence, Whitman v. Pet Incorporated, 335 So.2d 577, 579 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 951 (Fla.1977); Dixson v. Kattel, 311 So.2d 827, 828 (Fla. 3d DCA 1975), and to the husband’s laudable desire to assist the slightly handicapped children in becoming stronger academic achievers. The prime criteria by which to measure child support are the child’s needs and the parents’ ability to pay. Page v. Page, 371 So.2d 543, 544 (Fla. 3d DCA 1979); Davis v. Davis, 371 So.2d 591, 593 (Fla. 2d DCA 1979). A child’s educational need is a factor to which the trial judge should give due regard. Bordman v. Bordman, 231 So.2d 543, 544 (Fla. 3d DCA 1970). Having erroneously concluded that two of the children had no special educational needs, the trial court here failed to give due regard to these needs when it formulated the child support decree. For this reason, the judgment is also reversed so that an evidentiary hearing may be held in order for the parties to present an educational program compatible with the youngsters’ needs and the father’s financial capabilities. This program of remedial education should be flexible, adaptable, and terminable within the discretionary and equitable powers accorded to the trial court. § 61.13(1), Fla.Stat. (1979).

As to the wife’s claim of the gift of a one-half interest in stock in the land investment corporation, the husband asserts that such gift was incomplete for lack of delivery. We disagree. The husband’s gift was memorialized in a letter dated October 3, 1976, which stated:

Dear Betty Ann
Verbally I have told you that I give you equal ownership in the share of property I bought ... in the keys.
This note puts into writing and acknowledges this to you that I give you 50% of my share in that property.
Bob Liebler

This correspondence was sufficient to complete the gift of stock, Tanner v. Robinson, 411 So.2d 240 (Fla. 3d DCA 1982), and the trial court must be reversed on this point as well.

In light of our decision that rehabilitative alimony should be converted to permanent alimony, that the child support award should have taken into account the special needs of two of the children, and that the husband did make a gift of stock to the wife, the trial court is empowered, on remand, to rework the division of marital property based on the considerations established by Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Coiucci v. Colucci, supra.

Reversed and remanded.


author: WIGGINTON, Judge.

text:
    Levi Anthony BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. AE-378.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Rehearing Denied June 2, 1982.
    Carl S. MeGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is from a final judgment and sentence adjudicating appellant, Levi Anthony Bradley, guilty of the armed robbery of a Big “B” Cleaners. The final judgment was from a jury verdict finding Bradley guilty as charged. Bradley was subsequently sentenced to fifteen years in prison including the imposition of a minimum mandatory incarceration of three years based on his possession of a firearm during the commission of the crime. This Court finds no error in the proceedings below and affirms the final judgment and sentence entered by the trial court.

The final point on appeal requires this Court to clarify an aspect of Section 775.087, Florida Statutes (1981), dealing with the three year mandatory incarceration based on the possession of a firearm during the commission of certain crimes. Appellant contends that the three year mandatory minimum sentence was incorrect as there was insufficient proof that he had possession of a firearm during the commission of the crime.

Pertaining to this single point, the facts reveal that Bradley conceived and carried out this transgression solely on his own. Appellant was identified as being the robber and the jury so found. Eyewitness testimony placed Bradley at the cash drawer behind the counter in the Big “B” Cleaners. The regular employee of the cleaners was lying on the floor, and in front of the cash drawer on a high stool was a pistol. The eyewitness, an off-duty police officer who had stopped at the drive-in window of the cleaners, did not see the pistol in Bradley’s hand. The employee who was on the floor did not appear at the trial because he had missed his airplane. When the policeman emerged from his car, Bradley vaulted the counter and sped from the premises carrying with him the fruits of his crime but leaving the firearm undisturbed on the stool. The firearm upon later examination yielded no identifiable fingerprints and revealed that the serial number had been filed off.

The cases relied on by appellant are of no assistance to the issue sub judice, which is whether, under these facts and circumstances, Bradley may be found guilty of having had possession of a weapon or firearm during the commission of the robbery.

In Earnest v. State, 351 So.2d 957 (Fla.1977), the supreme court excluded from the mandatory sentence aiders and abettors to criminal activity, holding that vicarious possession was not enough and only those persons in possession of the firearm would be subjected to the increased penalty.

A survey of those cases applying the mandatory incarceration provision of Section 775.087(2) indicates the dichotomy of actual possession, wherein the mandatory incarceration was imposed, and the vicarious possession wherein the party challenging the applicability of the statute was in concert with others but whose participation did not include the possession of a weapon or firearm. See McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978), Zarro v. State, 390 So.2d 811 (Fla. 5th DCA 1980), and Boozer v. State, 402 So.2d 585 (Fla. 5th DCA 1981).

It is clear that the tests set forth in Earnest and McGowan require actual and not vicarious possession be attained before triggering the three year mandatory incarceration required by Section 775.087(2). However, we find no preclusion of that finding being based upon circumstantial evidence. Bradley’s presence in the Big “B” Cleaners in a mask and toboggan cap, his positive act of taking the money of the owner, as well as fleeing the scene upon entry of the police officer, belies any reasonable hypothesis of innocence. The pistol was located on the stool directly in front of the cash register from which Bradley was seen taking the money. It was physically available, readily accessible, within the reach of Bradley’s hand, capable of being used by him immediately, and well away from the employee who was at that time lying spread eagle on the floor. This demanding circumstantial evidence compels us to the single conclusion that Bradley had possession and control of and full exercise of power over the firearm, to the exclusion of all other persons.

The final judgment and sentence of the lower court is affirmed.

JOANOS and THOMPSON, JJ., concur.


author: SHAW, Judge.

text:
    UNITED STATES of America, Appellant, v. Wayne D. BOYETTE, Appellee.
    No. AG-198.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Gary L. Betz, U. S. Atty. by Robert S. Yerkes, Asst. U. S. Atty., M. D. Fla., Donald H. Clark, Dist. Counsel, Sp. Asst. U. S. Atty., Jacksonville, for appellant.
    Edwin B. Browning, Jr. of Davis, Browning & Hardee, Madison, for appellee.
   SHAW, Judge.

This is an appeal from a Circuit Court order denying appellant’s “motion for order adjudicating invalid the claims of Wayne D. Boyette and Rozella Boyette of homesteads exempt from forced sale.”

On October 22, 1971, Wayne D. Boyette and Ethel Boyette entered into a separation and property settlement agreement which was later incorporated into a final order dissolving the marriage of the parties on February 4, 1972. For the sum of $25,000 in cash and Wayne’s agreement to allow her to remain on the Columbia County homestead for a monthly rental payment of $100.00, Ethel executed a quitclaim deed to all her interest in the property. She moved out after about three years, purchased a home in Jasper, Hamilton County, Florida, and established her homestead there. Wayne, who had physically moved out of the Columbia County property in January of 1969, married Roxeanna a few days after his marriage to Ethel was dissolved. Wayne and Roxeanna bought and occupied a home in New Smyrna Beach, Volusia County, Florida, on which Roxeanna claimed homestead for tax purposes while Wayne continued to claim homestead in Columbia County. Although he claims otherwise, it is clear from the record that Wayne registered and voted in Volusia County in 1972. Around 1975 Wayne and Roxeanna moved to and occupied a residence in Houston, Texas. There he registered and voted, secured a Texas driver’s license and allowed his Florida license to expire. In 1979 Wayne maintained dual registration in both Texas and Florida and voted in Texas in the November, 1980, election. While he does not seriously challenge the above outlined chronology of events, he claims that throughout the period in question he visited the Columbia County property about once a month for the purpose of checking on it and attending to routine maintenance. He claims also that he maintained an electrical connection in his name, maintained a telephone listing in his name, and maintained a mailing address at the residence. He testified that he never intended to abandon the property as his homestead, always considered it to be his homestead, and had only been living in the State of Texas because of adverse financial circumstances and intended to return to Columbia County when his economic fortunes improved.

The circuit court order adjudged that the homestead claimed by Wayne Boyette is determined to be in fact a homestead under the laws of the State of Florida, subject to all the rights and privileges pertaining thereto. This brings into focus the issue to be resolved, to wit: whether one maintains the homestead status of property following the break-up of a family unit and the establishment of a new family unit elsewhere. The answer, in the opinion of this Court, is that he cannot. Wayne was not only absent in excess of twelve years from the Columbia County property on which he claims homestead, but during that twelve year period he remarried, and he and his new wife occupied and declared homestead on property elsewhere. The facts clearly demonstrate that Wayne Boyette was not the head of a family occupying the disputed homestead during the period in question, but was in fact a member, if not the head, of an entirely different family unit residing elsewhere. His claim of homestead cannot be sustained on the facts. The trial court’s finding to the contrary is REVERSED and the cause is remanded for disposition consistent with this opinion.

REVERSED and REMANDED.

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


text:
    FLORIDA COMMISSION ON HUMAN RELATIONS, Appellant, v. HUMAN DEVELOPMENT CENTER, Appellee.
    No. AI-85.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Rehearing Denied June 2, 1982.
    J. Worth Owen, Asst. Gen. Counsel, Florida Commission on Human Relations, Tallahassee, for appellant.
    George L. Waas, of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellee.
    John-Edward Alley and Robert D. Hall, Jr., of Alley & Alley, Tampa, for amicus curiae, Publix Super Markets, Inc.
   WIGGINTON, Judge.

This appeal is from the final order of the Administrative Hearing Officer holding that appellant’s Rules 9D-8.06, 9D-8.22(2), 9D-9.03(4) and 9D-9.03(7), Florida Admin istrative Code, constitute invalid exercises of delegated legislative authority insofar as they authorize issuance, service, and enforcement of subpoenas in connection with agency investigations.

Appellant, Florida Commission on Human Relations, is the administrative agency whose function it is to promote and encourage fair treatment and equal opportunity for all persons regardless of race, color, religion, sex, national origin, age, handicap, or marital status, pursuant to the Human Rights Act of 1977, Ch. 23, Part IX, Florida Statutes (1977). In carrying out that function, it is charged with the responsibility of investigating and adjudicating claims of employment discrimination. The Human Development Center is a corporate body existing under the laws of Florida with its business located in Tampa. Publix Super Markets, Inc. was granted participation as amicus curiae due to a similar case pending in the Second Judicial Circuit, Florida Commission on Human Relations v. Publix SuperMarkets, Inc., Leon County Civil Action No. 81-780, wherein after considering an identical issue the circuit judge sustained the Commission’s statutory authority pursuant to Section 23.166(5) and (7), Florida Statutes (1981), to issue investigatory subpoenas and to delegate such authority to its executive director. Publix sought certiorari review from this Court which was denied after consideration of the petition on its merits. Publix Supermarkets, Inc. v. Florida Commission on Human Relations, Case No. AF — 326, Fla. 1st DCA (Order entered Sept. 10, 1981).

The issue to be determined is whether the Commission has the requisite legislative authority to support the promulgation of the several Florida Administrative Code rules as relates to the issuance of subpoenas for investigations being carried out by the Commission.

This controversy came about following the filing of a complaint against the Center by an employee alleging sex discrimination. Based upon the complaint and pursuant to Section 23.166(5), Florida Statutes (1979), and Rule 9D-9.03, the Commission’s' executive director commenced an investigation into the allegations by formally requesting information from the Center on July 13, 1979. The Center failed to furnish the information sought and on April 7, 1981, the executive director of the Commission issued a subpoena and served it by registered mail in accordance with its rules. The Center acknowledged receipt of the subpoena by certified mail, but has refused to comply. The Center sought protection from the subpoena by filing a petition for review of non-final administrative action with this Court, which was denied. The Commission, in the meantime, sought enforcement of its subpoena in the Leon County Circuit Court, Case No. 81—1248. The lower court ruled that the Commission’s service of the investigatory subpoena by certified mail was valid service. That order was appealed to this Court and dismissed. Human Development Center v. Commission on Human Relations, Case No. AH—207 (Fla. 1st DCA Jan. 27, 1982).

Before the trial court made any final ruling, the Center filed with the Division of Administrative Hearings a petition for the determination of the invalidity of an existing rule in which the above-cited rules were challenged. The hearing officer in his final order concluded that the challenged rules constituted an invalid exercise of delegated legislative authority insofar as they authorized issuance, service, and enforcement of investigative subpoenas.

The Center and Publix do not challenge the authority of the Commission in the issuance of subpoenas for evidence pertaining to any convened hearing. They only contest the issuance of subpoenas to compel the production of evidence required by the Commission in an ongoing investigation after a complaint has been filed but prior to a hearing being convened.

The Commission derives its authority to promulgate rules from Section 23.166, Florida Statutes (1979). The law implemented by Rules 9D-8.06, 9D-8.22(2), 9D-9.03(4), and 9.03(7) is found in Sections 23.166 and 23.167, Florida Statutes (1979). The four subparagraphs contended to be the basis for issuance of subpoenas in connection with the Commission’s investigations are provided in pertinent part as follows:

Section 23.166 Powers of the Commission. —Within the limitations provided by law, the Commission shall have the following powers:
* * % # * *
(5) To receive, initiate, investigate, seek to conciliate, hold hearings on, and act upon complaints alleging any discriminatory practice, as defined by this part.
* * * * * *
(7) To administer oaths, subpoena witnesses, and compel production of evidence pertaining to any hearing convened pursuant to subsection (5). The authority granted by this subsection may be delegated by the commission, for investigations or hearings to a commissioner, a panel of commissioners established under s. 23.163(5), or the executive director. In the case of a refusal to obey a subpoena issued to any person, the commission may make application to any circuit court of this state, which shall have jurisdiction to order the witness to appear before the commission and to produce evidence, if so ordered, or to give testimony concerning the matter in question. Failure to obey the order may be punished by the court as contempt.
* * * * * *
(13) To adopt, promulgate, amend, and rescind rules to effectuate the purposes and policies of this part and govern the proceedings of the commission, in accordance with chapter 120.

We disagree with the hearing officer’s overly narrow interpretation of the powers delegated to the Commission in Section 23.-166. Such an interpretation does not fairly express or permit the meaning and intent of Sections 23.166(5) and 23.166(7) to carry out the express function of the commission.

The Commission clearly has the power “to . . . investigate . .. complaints alleging any discriminatory practice ...” and “to hold hearings to determine the facts ...” §§ 23.166(5) and (6). In Section 23.166(7) it is provided that “the authority granted by this subsection” — the authority to administer oaths, subpoena witnesses and compel production of evidence — “may be delegated by the commission, for investigations or hearings to a commissioner, a panel of commissioners, or the executive director.” The plain reading of the rules and statutory subsections lead inexorably to the conclusion that the commission has the authority to issue, serve and enforce subpoenas in connection with agency investigations. Although these sections of Chapter 23 could have been more artfully drafted, the express language is sufficiently clear and should not negate the obvious legislative intent. The power to investigate granted the Commission by virtue of Subsection 23.-166(5), Florida Statutes, would be rendered nugatory if Subsection 23.166(7) were read to apply only to convened hearings. Further, such an interpretation would completely thwart the orderly process of investigation and discovery to determine whether there was a sufficient basis to convene a formal hearing.

Publix aligns itself with the Center’s position but fairly expresses the view of the business community that the potential hardship and cost to Florida employers could be overwhelming if they are required to respond to broad based subpoenas and information demands sent out by mail over a prolonged period but prior to any determination that there is reasonable cause to believe that the complaint has merit. The Commission must accept that caveat and exercise its powers responsibly, without abuse and with restraint, in carrying out its mission of promoting and encouraging fair treatment and equal opportunity for all persons in our state. Additionally, Publix and the other members of the general employment community are provided a statutory safeguard from ultimate governmental harassment. Subsection 23.166(7), authorizing enforcement of the subpoena upon refusal of the witness to answer or appear, provides recourse to a circuit court for determination of whether that witness should be made to answer questions or produce relevant information. The section is thereby calculated to render adequate judicial supervision and protection.

This case and that one involving Publix Supermarkets, Inc. have traveled a long road thus far not reaching resolution on the merits. Along the way, the issue sub judice was before the Commission which concluded that it had the power to issue investigative subpoenas. Its conclusion is persuasive and entitled to great weight by this Court. See e.g., State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973). Specifically, the statutory implementing proposals having made their way through the rule-making process, in which those challenging the rule fully participated or had an opportunity to participate, strengthens the case for judicial deference. In State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981), this Court reversed the hearing officer’s order that the rule exceeded its statutory authority. We held the interpretative rule valid, noting that the Department had gone through the rule-making process in developing its policy and stating that:

When as here an agency has responded to rule-making incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency’s interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. At 242.

Absent the power to issue investigatory subpoenas, the Commission’s investigation of a complaint of discrimination would invariably be protracted whenever requested information was not voluntarily submitted. Where lawful rule-making authority is clearly conferred or fairly implied, and is consistent with the general statutory duties of the agency, a wide discretion is accorded it in the exercise of such authority. 1 Fla.Jur.2d, Administrative Law, § 48 (1977). Any other interpretation of Section 23.166 and its subsections (5) and (7) would be incompatible with the spirit and purpose behind the Commission’s authority to investigate and adjudicate employment discrimination. Accordingly, we find the Florida Commission on Human Relations Rules 9D-8.06, 9D — 8.22(2), 9D-9.04(4), and 9D-9.03(7), Florida Administrative Code, to be a valid exercise of delegated legislative authority properly authorizing issuance, service, and enforcement of subpoenas in connection with agency investigations. The hearing officer’s final order is reversed.

JOANOS and THOMPSON, JJ., concur.


author: FERGUSON, Judge.

text:
    Howard HEYMAN and Sue Heyman, his wife, Appellants, v. Philip L. VONELLI d/b/a Vonelli Construction Company, Appellee.
    No. 81-1336.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied June 9, 1982.

      Pertnoy, Greenberg & Sobel and Stuart H. Sobel, Miami, for appellants.
    Turner, Fascell & Russo and S. Alan Stanley, Coral Gables, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal challenges an Order on a Motion to Confirm Arbitration Award and Assess Attorney’s Fees by which the trial court increased the amount of costs awarded in arbitration and assessed an attorney’s fee. We reverse.

Appellant, Heyman, commenced these proceedings on a demand for arbitration alleging breach of a construction contract. Although the contract, prepared by Vonelli, provided that all disputes arising out of the contract or breach thereof would be decided by arbitration, Vonelli subsequently filed an action in the circuit court seeking to foreclose a mechanic’s lien based on the same dispute which was the subject of Hey man’s demand for arbitration. Heyman’s motion to dismiss the trial court mechanic’s lien action was initially denied but was granted by a third successor judge after several months of prosecution in the circuit court. No review of the order dismissing the circuit court action was sought by Vonelli, who then filed his reply to the demand for arbitration along with a counterclaim for lien foreclosure. The dispute was resolved by arbitration in Vonelli’s favor and an order was entered assessing arbitration costs against Heyman in the amount of $1,372.16.

On Vonelli’s motion to confirm the arbitration award the trial court entered its order confirming the award and further awarded attorney’s fees of $7,500.00 and additional costs of $1,618.39 for fees and costs incurred in the circuit court litigation prior to its dismissal, including costs incurred in affirming the arbitration award.

Understandably, Vonelli would like to be recompensed for his expenses, costs, and attorney’s fees incurred during the lengthy mechanic’s lien proceedings in circuit court. However, the general rule in Florida is that attorney’s fees cannot be taxed as costs in any cause unless authorized by contract or legislative authority. Condomo v. Emmanuel, 91 So.2d 653 (Fla.1956); Beach Resorts International, Inc. v. Clarmac Marine Construction Co., 339 So.2d 689 (Fla.2d DCA 1976). The award the court was called upon to confirm by Vonelli was entered pursuant to the Arbitration Code, Chapter 682, Florida Statutes (1979). Upon application of appellee to confirm the arbitration award the trial court was without authority to vacate, modify, or correct the award except pursuant to Sections 682.-13 and 682.14, Florida Statutes (1979) requiring a showing that it was procured by undue means or mistake. No such irregularity was alleged or proved. Moreover, Section 682.11, Florida Statutes (1979) governing fees and expenses of arbitration, specifically excludes counsel fees as recoverable costs.

Since Vonelli could not recover his attorney’s fees and costs under the Arbitration Statute, he sought them under the Mechanic’s Lien Statute while simultaneously asking the court to affirm the arbitration finding in his favor. His single argument in support of the award for additional fees and costs is that if the matter were properly one for arbitration, the initial trial judge should have made such a determination and not have allowed appellee to continue further with his mechanic’s lien action. We reject the argument because just as the dispute could not have been litigated in two forums, an award for costs and fees could not have been based on proceedings in two forums. Vonelli makes no contention here that the circuit court erred in dismissing his complaint for mechanic’s lien foreclosure which must be interpreted as an acquiescence to removal of the dispute into arbitration. Furthermore, Vonelli moved for the order confirming the arbitration award. A party who enters into a contract requiring arbitration may not file a complaint of foreclosure and demand an attorney’s fee. Oakdale Park, Ltd. v. Byrd, 346 So.2d 648 (Fla.2d DCA 1977).

The order confirming the arbitration panel’s award is affirmed, except as to that part of the award which grants attorney’s fees and costs incurred in the Circuit Court litigation which is reversed, and the cause is remanded with instructions to assess and award only those court costs incurred pursuant to confirming the arbitration award.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Candace Alanna DANIELS, Appellee.
    No. 81-425.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellant.
    J. Russell Hornsby, Orlando, for appellee.
   SHARP, Judge.

The State appeals the trial court’s order which granted Daniels’ motion for discharge pursuant to Florida’s “Speedy Trial” Rule. We reverse.

Daniels was arrested on August 21, 1980 for the crime charged in this case, and that commenced the running of the 180 day speedy trial time. Her trial was first set for January 25, 1981, but on January 20, 1981 the State sought and obtained a continuance because the victim of the alleged crime (an essential witness) could not be located within the State of Florida. The trial was reset for February 25, 1981.

On February 13, 1981, the witness appeared to give his deposition pursuant to defense counsel’s subpoena. However, he walked out of the deposition because no state attorney was present, and he claimed he needed to be represented by counsel. The defense filed a motion on February 23, 1981 to hold him in contempt and compel his oral deposition.

On February 25, 1981 the State and trial judge were present in the courtroom ready to try the case. The defendant and defense counsel did not appear, except to drop by a motion pertaining to the contempt matter. On February 26, 1981, in response to a telephone call made by the trial court, defense counsel wrote a letter to the court saying they were not prepared to try the ease without the deposition of the victim, and that they did not intend to pursue the contempt matter because the State had promised its assistance.

On March 4, 1981, the defense filed its motion for discharge which the trial court granted on March 23, 1981. The defense made no claim or showing that it was or had been prejudiced by the delay of the trial, and the defense had not filed a demand for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(a)(2), nor any earlier motions for discharge.

We have held that where a defendant moves for a continuance, and it is granted, the 180 day speedy trial time no longer applies. State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980). Thereafter, in order to activate the other time periods under the Rule, the defendant must either file a written demand for speedy trial or a motion for discharge. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). We note that our sister courts have held the same reasoning should apply to the situation where the State moves for a continuance and it is granted for exceptional circumstances. We do not reach that question in this case because the trial date was properly extended by the court to a set time, and the reason the trial did not then take place was the defendant’s failure to appear. Fla.R.Crim.P. 3.191(d)(3).

The record fails to establish any of the criteria to show that Daniels’ constitutional right to speedy trial was violated. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The delay in this cause was not unduly long — a little more than a month from the granting of the State's motion for continuance plus another week when defendant filed her motion for discharge. The delay was caused by an unavailable, uncooperative necessary witness. This was not clearly attributable to the State. The defense had not requested a speedy trial. To the contrary, defense counsel told the court it was not ready for trial and that it would be prejudiced by being forced to try the case without the victim’s deposition. The defense made no showing it was prejudiced by the delay in any manner.

For the reasons stated herein, the order granting appellant’s motion for discharge is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . Fla.R.Crim.P. 3.191.

      . Fla.R.Crim.P. 3.191(a)(1).

      . See Carr v. Miner, 375 So.2d 64 (Fla. 1st DCA 1979) (Booth, J., specially concurring); State Ex Rel. Lee v. Harper, 372 So.2d 1012 (Fla. 1st DCA 1979); State v. Kurtz, 354 So.2d 890 (4th DCA), cert. denied, 360 So.2d 1249 (Fla.1978); King v. State, 303 So.2d 389 (Fla. 3d DCA 1974); cf. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980) (Rejecting the argument that the ninety day provision in Florida Rule of Criminal Procedure 3.191(d)(3) is applicable whenever the State seeks a continuance).

      . After State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980) and State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971) were decided, Rule 3.191 was amended effective January 1, 1981. The revised rule omits the terms “waiver” and “continuance,” and relies solely on “extensions” as the mechanism for altering the time mandates of the rule. In this case, Rule 3.191 in its pre-amended form applies because appel-lee was arrested for the crime charged in 1980. Holmes v. Leffier, 411 So.2d 889 (Fla. 5th DCA 1982).


author: DAUKSCH, Chief Judge.

text:
    William DAVISON and Buena E. Hey, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ORLANDO, Appellee.
    Nos. 81-938, 81-976 and 81-1024.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    J. Russell Hornsby and Jack Perlmutter of J. Russell Hornsby, P. A., Orlando, for appellants.
    Susan F. Murphy of Giles, Hedrick & Robinson, P. A., Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from partial summary judgments and a final judgment in a case involving allegations of conversion and other civil wrongs.

The decisive issue for us to contend with is the propriety of the court in refusing to permit a defendant to amend his answer to a request for admissions.

Florida Rule of Civil Procedure 1.370 provides a vehicle by which issues are narrowed in a civil case, thus allowing the parties and the court to concentrate upon the various contentions of the parties after the resolution of the facts which are not in dispute. That separation of the wheat from the chaff makes for a more orderly resolution of disputes.

This case involves allegations that appellant Davison forged a check, took the money from the forged check and thus defrauded the bank. Appellant Hey is alleged to have participated in the scheme to misappropriate the funds. Because of the alleged misconduct the appellee obtained a judgment against both Davison and Hey. The lawsuit began in the usual manner by the filing and service of a complaint and the filing and service of an answer to the complaint. In his answer Davison denied various allegations, including the one that he had forged the check. Soon after the answer was filed the bank served its Request for Admissions pursuant to Florida Rule of Civil Procedure 1.370. In the record before us are copies of that request for admissions, one of which is a copy of the one in the appellant Davison’s attorney’s file. Next to the request for admission which asks him to admit he forged the signature there is a “D”. This “D” also appears next to other requests for admissions. Some of the requests, on the other hand, have an “A” next to them. It is obvious from the record that “D” means “deny” and “A” means “admit”. Thus it is clear Davison’s attorney made a clerical mistake when the answers to the Request for Admissions admitted forging the check. It is also clear that Davison did not intend to admit this fact and to bind himself and Hey to that admission. Finally, it is also clear his attorney either knew or should have known of the clerical mistake long before he brought it to the court’s attention and attempted to correct it by filing affidavits of Davison and an employee of the law office.

So, when appellee moved for a partial summary judgment against both appellants and appellants first woke up to the fact that they had admitted the most critical factor of the plaintiff’s allegations they set out to correct the inadvertent admission by asking the court to allow the Davison admission to be changed to a denial; in accordance with his answer to the complaint and in accordance with what he swears is the truth. The trial court denied the motion to amend the answers to request for admissions and entered summary judgment concerning the liability on the forgery allegation. The trial judge instructed the jury at trial “It has been established as a matter of law” that Davison forged the check.

In our examination of the caselaw applicable to the situation presented to us in this appeal we are led to the inescapable conclusion that the court should have allowed Davison to amend his answers to the request for admissions and that it was error for the trial court to have entered the partial summary judgments and the final judgment. The error was prejudicial to both appellants so we must reverse the final judgment, the partial summary judgments and remand this matter for a new trial after Davison is permitted to amend his answer to the Request for Admissions.

In Old Equity Life Insurance Company v. Suggs, 263 So.2d 280 (Fla. 2d DCA 1972), quoting Curry Ford Apartments, Inc. v. Blackton, Inc., 249 So.2d 693 (Fla. 4th DCA 1971), it was said:

The Rules of discovery should be liberally interpreted to comport with the spirit of their intended function which is to arrive at the truth and to accord substantial justice over mere technical contentions.

See also Lums, Inc. v. Farish, 251 So.2d 338 (Fla. 3d DCA 1971) and Love v. Allis-Chalmers Corporation, 362 So.2d 1037 (Fla. 4th DCA 1978). In Curley v. Finest Homes, Inc., 167 So.2d 739 (Fla. 2d DCA 1964), the Second District Court of Appeal held “On a hearing of a motion for a summary judgment the court may pierce the curtain of the paper issues and examine the affidavits for the purpose of determining whether there is any genuine issue of fact that ought to be tried.” Here, Davison asked the court to consider his affidavit, and the affidavit of another which showed he denies forging the check. When the court refused to consider his affidavit and entered the partial summary judgment in face of the affidavits the spirit of the rule regarding requests for admissions was violated. See Florida Rule of Civil Procedure 1.370 and the rules and caselaw regarding Summary Judgment. For example, see Rule 1.510(f). See also Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., 108 So.2d 641 (Fla. 1st DCA 1959), where it was said “Public policy requires that our courts be ever vigilant in making summary disposition of causes lest the application of the rule result in eroding or destroying the fundamental right of litigants under our system of jurisprudence to have the issues made by the pleadings tried by a jury of fellow citizens.” The principal embraced by those lofty words was violated when the penultimate sanction of the partial summary judgment was invoked here. Some lesser sanction would have sufficed.

REVERSED AND REMANDED.

SHARP and COWART, JJ., concur.

      . Parenthetically, we are not at all convinced by appellee’s assertions that the employee’s affidavit is inadmissible because it is an affidavit of an attorney representing the appellant. Appellee says because it is unethical for a lawyer to be a witness in a case, that witness’ evidence is inadmissible. That is not correct. If the lawyer must present testimony as a witness then she should be excluded as a lawyer in the cause, not excluded as a witness. Justice is what is sought in the courts. If an ethical violation exists then another forum deals with that. For a note to source material, see No. 234 The Journal of the Academy of Florida Trial Lawyers 14 (1982).


text:
    LAWYERS SURETY CORPORATION, Appellant, v. Dennis T. CLARKE and Marianne Clarke, his wife, Appellees.
    No. 81-1265.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Leslie King O’Neal, of Markel, Scott, McDonough & O’Neal, P. A., Orlando, for appellant.
    Ann G. Paschall, of McClung & Paschall, Brooksville, for appellees.
   SHARP, Judge.

Lawyers Surety Corporation appeals the trial court’s final judgment on the pleadings entered against it as a surety on two construction bonds. The judgment was in favor of Dennis and Marianne Clarke, the homeowners, in the sum of three thousand five hundred dollars ($3,500) as liquidated damages, with interest at eighteen percent (18%) per annum in the amount of one thousand two hundred sixty dollars ($1,260). We reverse because the pleadings fail to conclusively establish liability on the surety’s part, and further, there is no basis upon which the award of interest at eighteen percent (18%) was proper.

The pleadings show that the Clarkes contracted with Howard Connell for construction of a house. They paid him a three thousand five hundred dollar ($3,500) deposit, but aside from bringing in a load of fill dirt and sand, Connell completely failed to perform the contract and he did not return the Clarkes’ deposit. After the Clarkes and Connell signed their contract, Lawyers Surety issued a masonry and a carpentry bond to Connell for the benefit of the Clarkes. Appellees subsequently sued Con-nell and Appellant.'

The amended complaint alleged: that Connell failed to use the proceeds given him for labor or materials, with the intent to defraud the Clarkes in violation of Florida Statute 713.34(3); that Connell repeatedly refused to return the Clarkes’ money; that Connell had conducted deceptive trade practices in violation of Florida Statute 501.213 by embezzling the Clarkes’ funds, and the Clarkes were entitled to attorney’s fees as a consequence of the violation of this statute. It further alleged that appellant issued the two bonds which were in full force and effect when the Clarkes entered into the contract with Connell. The Clarkes sought compensatory and punitive damages, attorney’s fees and costs. Connell defaulted and summary judgment was entered against him.

Lawyers Surety answered the amended complaint raising as affirmative defenses: failure to state a cause of action because the subject contract was not bonded by Lawyers Surety; the Clarkes’ complaint mixed up causes of action and theories of recovery in violation of the Florida Rules of Civil Procedure, and none of the activities described therein were bonded by the appellant; conditions precedent to bringing an action under the bond were not performed; there was no contract or applicable statutory provision allowing the Clarkes’ attorney’s fees; the bonds were not in force the date of the contract, and they were not binding on Lawyers Surety because they were not executed by a person authorized to bind it. Each affirmative defense appears sufficient to state a legal defense to the Clarkes’ suit against the surety.

The court granted the Clarkes’ motion for judgment in their favor on the pleadings. This is erroneous where the answer pleads a sufficient legal defense. Morris v. Truax, 152 So.2d 515 (Fla.2d DCA 1963). Further, in this case various facts are in dispute which must be resolved by the trier of fact. Krieger v. Ocean Properties, Ltd., 387 So.2d 1012 (Fla. 4th DCA 1980).

We also note that it was error for the trial court to award the Clarkes eighteen percent (18%) interest. The bonds in question make no provision for any particular rate of interest. Therefore, the maximum legal rate of interest the trial court could award, assuming any interest should be awarded, is controlled by section 687.01, Florida Statutes (1981).

We reverse and remand for further proceedings.

REVERSED AND REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . For example, some of the facts in dispute are: (1) the effective date of the bonds; (2) the performance of conditions precedent required by the bonds; (3) whether the deposit was made exclusively for masonry and carpentry work; and (4) whether the parties intended these bonds would cover Connell’s complete defalcation under the Clarkes’ contract.


author: HOBSON, Acting Chief Judge.

text:
    Paul F. WALLACE, Appellant, v. Beverly McFarlan WALLACE, Appellee.
    No. 81-1719.
    District Court of Appeal of Florida, Second District.
    May 14, 1982.

      John M. Edman of Meros, Coit, Edman, Meros, Smith & Meros, P. A., St. Peters-burg, for appellant.
    Mark C. Payne of Goza, Hall, Peters & Smith, P. A., Clearwater, for appellee.
   HOBSON, Acting Chief Judge.

Paul Wallace (husband) appeals a portion of a final order in favor of his former wife, Beverly Wallace (wife), which held that he did not have the right to determine the extent of his daughter’s schooling. We reverse.

The Circuit Court for Pinellas County entered a final judgment of dissolution of marriage between the parties in 1968 and awarded the wife custody of their two minor children, Nancy and Paul, Jr., subject to reasonable visitation privileges. The court incorporated into the judgment a property settlement agreement entered into by the parties. In September 1980, the wife filed a motion for contempt claiming a violation of paragraph 8 of the agreement which provided as follows:

8. The husband agrees to furnish the necessary funds for the proper higher education of said children in future years; provided that if at the time the children become of age or prepared for such higher education the husband is unable financially to provide funds for the higher education of said children, he may seek modification of such obligation and any decree requiring the same. At all times the husband shall have the right to participate in the determination of the school or schools which said children shall attend and the schooling or extent thereof that the same, and each of them, shall receive.

Specifically, the wife alleged that the husband had refused upon demand to tender funds for Nancy to attend a particular private college in California. The court, after conducting a hearing to determine the monetary obligation of the husband under paragraph 8 of the agreement, entered an order. Paragraph 2 of the order provides as follows:

2. The Husband/Respondent does not have the right to determine the extent of the schooling that he will provide to his daughter, NANCY SCOTT WALLACE.

The husband argues that the court improperly modified the last sentence of paragraph 8 of the property settlement agreement. The wife contends that the court did not modify paragraph 8, but, instead, correctly interpreted it to read that the husband may participate in the determination of the extent of Nancy’s schooling but cannot solely determine the extent of her schooling. We agree with the husband.

At the outset, we note that this court recently held that, absent highly unusual circumstances, the right to make educational decisions concerning a child of divorced parents must rest with the custodial parent. Connelly v. Connelly, 409 So.2d 175 (Fla. 2d DCA 1982). There we vitiated a provision of a marriage dissolution judgment granting a husband who did not have custody of the parties’ minor child the sole right to determine whether their child should attend public or private school and eliminated a provision requiring the wife to pay the costs of the child’s schooling should the husband choose that the child attend private school. Connelly, however, is distinguishable. Nancy is an adult. Further, the parents entered into an agreement in paragraph 8 that it would be best for Nancy if both parents participated in the decisions regarding the schools which Nancy would attend and the extent of her schooling. Under such circumstances, we believe that the rule of Connelly is inapplicable.

Paragraph 2 of the order, read by itself, appears at first glance to correctly interpret paragraph 8 of the agreement. But when read in conjunction with paragraphs 3 and 4 of the order , it is evident that paragraph 2 modifies paragraph 8. Paragraph 3 requires that the husband pay a designated sum for Nancy’s 1980-81 and 1981-82 college school years. Paragraph 4 states as follows:

Subsequent to June, 1982 and prior to the school year 1982 through 1983, this Court would review the school records of NANCY SCOTT WALLACE to determine if in this Court’s opinion, NANCY SCOTT WALLACE’S progress has been satisfactory, and if so, the Husband/Respondent should provide additional funds for her higher education. This review shall take place again in the summer of 1983.

Thus, in effect, the husband cannot solely determine the extent of Nancy’s schooling or even participate in the determination of the extent of her schooling. The court itself is to determine the extent of her schooling. Hence, the court modified paragraph 8 of the agreement through paragraphs 2 and 4 of its order. The only question which remains is whether the modification was proper in the proceedings below.

The court issued its order upon the wife’s motion to ascertain the monetary obligation of the husband pursuant to paragraph 8. The wife never filed a petition for modification of the dissolution judgment. A court cannot modify a decree unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard on such issue. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Manning v. Varges, 413 So.2d 116 (Fla. 2d DCA 1982). An order adjudicating an issue not presented by the pleadings nor litigated by the parties during the hearing on the pleadings is, at least, voidable on appeal. Cortina; Manning; Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980); Taylor v. Taylor, 376 So.2d 27 (Fla. 2d DCA 1979). It was, therefore, improper for the court to modify paragraph 8 in the proceedings to determine the husband’s monetary obligation under that paragraph.

Accordingly, we reverse paragraphs 2 and 4 of the order and remand with instructions to strike those paragraphs. We leave untouched the other portions of the order.

REVERSED and REMANDED.

OTT and DANAHY, JJ., concur.

      . Paragraph 1 of the order states that husband shall furnish the necessary funds for the proper higher education of Nancy if she maintains satisfactory performance. This paragraph is essentially in compliance with the first sentence of paragraph 8.


text:
    Deborah Mary Caparco WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AC-312.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      James L. Harrison, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a timely appeal from a judgment and sentence imposed after appellant was found guilty by a jury of introduction of contraband to a penal institution. We reverse and remand for a new trial due to the trial court’s erroneous instruction to the jury in response to a question which arose during the jurors’ deliberations.

On August 17, 1980, appellant visited the State Correctional Institution at Lawtey, Florida. At the time of her admission, appellant was searched by a correctional officer. During the search, appellant was asked to remove an item from the watch pocket of her blue jeans. Appellant complied and produced a small cellophane packet of substance which was later proven to be phencyclidine, a controlled substance. Appellant denied knowledge of the presence of the drug prior to the search.

Appellant was charged by information with possession of a controlled substance and introduction of contraband into a state penal institution. At trial, appellant testified that the pants she wore to the prison belonged to a girl with whom she had roomed for one month. She stated that she frequently exchanged clothing with her roommates and that on the morning of the alleged crime she had obtained the jeans, folded and clean, from the top shelf of her roommate’s closet.

During their deliberations, the jury informed the bailiff that they wished to present a question to the court. Court was reconvened and the trial judge read aloud the following question: “Does the defendant have to have knowledge that she is in possession in order to be guilty of taking POP into the prison?” Without consulting counsel, the trial court reread the part of the charge which related to introduction and then stated that the answer to the jurors’ specific question, of whether knowledge was required, was “no.” Defense counsel immediately objected to the court’s rereading a portion of the instructions to the jury without first consulting with counsel and objected to the court’s answering the jurors’ question in the negative. Defense counsel requested the court to reread to the jury the instructions defining actual and constructive possession as well as the instructions originally given concerning knowledge. The court noted defense counsel’s exception but did not further instruct the jury. Subsequently, the jury returned a verdict of not guilty on the charge of possession of a controlled substance and a verdict of guilty as to the charge of introduction of contraband into a state penal institution.

Florida Rule of Criminal Procedure 3.410 provides that additional instructions shall be given to the jury only after notice to the prosecuting attorney and to counsel for the defendant. In Ivory v. State, 351 So.2d 26 (Fla.1977), the Florida Supreme Court held that it was prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. The failure of the trial court to allow counsel an opportunity to participate in a discussion of what action should be taken on the jury’s request constitutes reversible error. Taylor v. State, 385 So.2d 149 (Fla. 3rd DCA 1980).

In addition to the procedural error, the trial court erroneously instructed the jury that appellant did not have to have knowledge that she was in possession of the contraband in order to be found guilty of introducing that contraband into a penal institution. Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977). If the premises in which a contraband substance is found is within the exclusive possession of the accused, it may be inferred that the accused had knowledge of the presence of the contraband, together with an ability to maintain control over it. Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). Appellant’s testimony in the present case denying knowledge of the contraband presented a question of fact to the jury. The trial court’s comment that knowledge was not required relieved the jury of its responsibility to determine the credibility of that testimony.

REVERSED and REMANDED for proceedings consistent with this opinion.

ERVIN, BOOTH and THOMPSON, JJ., concur.