author: PER CURIAM. SUNDBERG, Justice,

text:
    THE FLORIDA BAR re AMENDMENT TO The FLORIDA BAR CODE OF PROFESSIONAL RESPONSIBILITY (ADVERTISING).
    Nos. 55263, 54925.
    Supreme Court of Florida.
    Feb. 21, 1980.
    L. David Shear, President, Leonard H. Gilbert, President-elect, and Rayford H. Taylor, Designation Director of The Florida Bar, Tallahassee, Gerald L. Brown, of Wells, Brown & Brady, Pensacola, and Barry R. Davidson, of Steel, Hector & Davis, Miami, for petitioner.
    Joseph C. Jacobs and Dean Bunch, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for The Florida Ass’n of Broadcasters.
    John H. Shenefield, Asst. Atty. Gen., Donald L. Flexner, Deputy Asst. Atty. Gen., Mark P. Leddy, Chief, Sp. Litigation Section, Martha B. Schneider and Carol L. Newman, Antitrust Div., U. S. Dept, of Justice, Washington, D. C., Wayne L. Thomas of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for General Tel. Directory Co.
    John Henninger, St. Petersburg, for The Legal Clinics of Pope-Henninger.
    Neil Chonin and Joseph C. Segor, of Cho-nin & Segor, Miami, for respondents.
    Jim Smith, Atty. Gen., and Jerome W. Hoffman, Sp. Asst. Atty. Gen., Tallahassee, for Florida Atty. General’s Office.
    Matt Weinstein and Richard Mandell, of Weinstein & Mandell, South Miami, for am-ici curiae.
   On Rehearing Granted

PER CURIAM.

This action comes before us on petition of The Florida Bar to amend The Florida Bar’s Code of Professional Responsibility. Our jurisdiction is conferred by article V, section 15 of the Florida Constitution. With modifications, we grant the Bar’s, petition for amendment.

Traditionally, advertising by members of the legal profession has been prohibited. The Canons of Professional Ethics were first adopted by the American Bar Association in 1908. In January, 1941, the Supreme Court of Florida adopted “rule B— Ethics Governing Attorneys” which included Canon 27, promulgated by the ABA, which stated that the most effective advertisement was the establishment of a well merited reputation for professional capacity, fidelity and trust. In December, 1955, the Supreme Court of Florida adopted article X of the Integration Rule of The Florida Bar which also incorporated the ABA’s Canon 27. In October of 1970, article X was amended to conform to the Code of Professional Responsibility. In Re The Integration Rule of The Florida Bar, 235 So.2d 723 (Fla.1970). Canon 2 of that code specifically prohibited advertising in the media, other than in reputable law lists. Subsequently, the code was amended to allow listings in both the alphabetical and classified sections of telephone directories and to permit listings of designations under the Florida designation plan. In the Matter of The Florida Bar, 319 So.2d 1 (Fla.1975).

EVOLUTION OF THE LAW

We must consider amendment to the Code of Professional Responsibility because of an evolution that has taken place in the law regarding lawyer advertising. This evolution began in 1975 in Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), where the United States Supreme Court held that paid commercial advertising is protected by the guarantees of the first amendment to the United States Constitution. In so holding, the Court said:

The policy of the First Amendment favors dissemination of information and opinion, and “[t]he guarantees of freedom of speech and press were not designed to prevent ‘the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential . . . . ’ 2 Cooley, Constitutional Limitations 886 (8th Ed.).”

Id. at 829, 95 S.Ct. at 2236.

Later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the Supreme Court held that even “commercial speech” is protected by the first and fourteenth amendments to the United States Constitution. The Court emphasized that: (1) the advertiser’s economic interest does not disqualify him from the guarantees of the Constitution; (2) individual consumers and the society as a whole have an interest in the free flow of commercial information; (3) a state’s interest in maintaining a high degree of professionalism among those it licenses cannot justify a state ban on advertising; and (4) a state may regulate, but not by keeping consumers in ignorance of the fee charges of competing professionals. In summarizing the reasons for its holding, the Court said:

The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information. There is no claim that the advertising ban in any way prevents the cutting of corners by the pharmacist who is so inclined. That pharmacist is likely to cut corners in any event. The only effect the advertising ban has on him is to insulate him from price competition and to open the way for him to make a substantial, and perhaps even excessive, profit in addition to providing an inferior service. The more painstaking pharmacist is also protected but, again, it is a protection based in large part on public ignorance.

Id. at 769, 96 S.Ct. at 1829.

Next in this evolutionary process came the lawyer advertising case with which we are principally concerned and obliged to follow. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Supreme Court held that truthful advertising of “routine legal services” is protected by the first and fourteenth amendments to the Constitution of the United States against blanket prohibition by a state. In this ruling, the Court reserved the question of “in-person” solicitation of clients in situations that could breed undue influence by attorneys or their agents. The Court made it clear that certain limitations on lawyer advertising are permissible. These limitations included the following:- (1) false, deceptive, or misleading advertisements are subject to restraint; (2) claims as to the quality of services may be so misleading as to warrant restriction; (3) a warning or disclaimer may be required to insure that consumers are not misled; and (4) reasonable restrictions on the time, place, and manner of advertising may be appropriate.

The Bates decision was limited to the printed media. The Court specifically declined to reach the issue of electronic broadcasting, stating that advertising in the broadcast media would warrant special consideration.

Although not specifically bearing upon the issues before us today, two other cases are worthy of note. In ruling on In Re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), the Supreme Court held that non-profit organizations that solicit prospective litigants for litigation as “a form of political expression” and “political association” are protected by the first amendment. As to these organizations, said the Court, government may regulate only “with narrow specificity.” Referring to its earlier holding in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court stated that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the first amendment. On the same day that Primus was filed, the Court also filed Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), holding that a lawyer may be disciplined for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the state has a right to prevent. The Court went on to hold that a state may protect the public from solicitation that involves fraud, undue influence, intimidation, and overreaching.

THE ISSUES

The Florida Bar has filed its proposed amendments to the Code of Professional Responsibility and argues that these amendments are in conformity with the guidelines announced in Bates and sufficiently promote the dissemination of information concerning the availability of legal services so as to allow the public to make an informed selection. Individuals and organizations, which we have grouped and called respondents, attack the proposed amendments on the basis that they unreasonably restrict first amendment privileges, contrary to the holding in Bates.

We must resolve the following issues: (1) Must electronic advertising be permitted? (2) If electronic advertising is to be permitted, how must its guidelines differ from the guidelines for the printed media? (3) What data is permissible in advertisements? (4) Should the Bar be allowed to define “routine legal services,” and if so, what services qualify under the definition? (5) To what extent should lawyers be permitted to advertise the areas or fields of law in which they practice or are qualified for practice under the designation plan? (6) Do the Bar’s recommendations of rules and guidelines regarding time, place, and manner of advertising infringe upon rights protected by the first and fourteenth amendments to the Constitution of the United States? The question of direct solicitation is not an issue in this case. As demonstrated by Primus and Ohralik, supra, the matter of direct lawyer solicitation involves different considerations from lawyer advertising, and regulation of that kind of activity stands on a different footing. See also Pace v. State, 368 So.2d 340 (Fla.1979).

THE NATIONAL PICTURE

The American Bar Association has written a model code which séeks to balance the lawyer’s right to advertise against the Bar’s responsibility to protect the public from fraud and deception. The ABA’s model code, Proposal B, sets forth a liberal view. It permits advertising, but lists the type of information which may be included in legal advertiséments. It allows media advertising beyond lists and telephone directories but generally forbids pictures, drawings or symbols. Neon sign and billboard advertising are considered improper. It provides that lawyers must adhere to any fee advertised, and permits lawyers to advertise over radio as long as the message is prerecorded and approved by the lawyer. Televised advertising would be prohibited until the agency having jurisdiction under state law determines that the use of such media would foster the goals of the new rules and would facilitate the process of informed selection of lawyers. It also permits professional cards, office signs, or letterheads to contain any information that would be permitted for print media advertising, and allows an individual lawyer or law firm to use any name which is not misleading or deceptive.

In viewing this evolving area of the law, we must insure that the constitutional right of lawyers to advertise is fully protected. While advertising which apprises consumers of the availability of competent legal counsel is beneficial to the public, we must guard against deceptive, misleading, and offensive advertising. We believe that the legal profession and the public is best served by adopting, with modifications, the American Bar Association’s Plan B. By so doing, we will be able to monitor changes in case law, professional comment, and attitudes.

The former Disciplinary Rules 2-101 and 2-102, and Ethical Considerations 2-1 through 2-15, are hereby repealed and superseded in their entirety by the following: DR 2 — 101 Publicity and Advertising.

(A) A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim.

(B) Without limitation a false, fraudulent, misleading, or deceptive statement or claim includes a statement or claim which:

(1) Contains a material misrepresentation of fact;
(2) Omits to state any material fact necessary to make the statement, in the light of all circumstances, not misleading;
(3) Is intended or is likely to create an unjustified expectation;
(4) States or implies that a lawyer is a certified or recognized specialist other than as permitted by DR 2-105;
(5) Is intended or is likely to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official;
(6) Relates to legal fees other than:
(a) A statement of the fee for an initial consultation;
(b) A statement of the fixed or contingent fee charged for a specific legal service, the description of which would not be misunderstood or be deceptive;
(c) A statement of the range of fees for specifically described legal services, provided there is a reasonable disclosure of all relevant variables and considerations so that the statement would not be misunderstood or be deceptive;
(d) A statement of specified hourly rates, provided the statement makes clear that the total charge will vary according to the number of hours devoted to the matter;
(e) The availability of credit arrangements; and
(f) A statement of the fees charged by a qualified legal assistance organization in which he participates for specific legal services the description of which would not be misunderstood or be deceptive; or
(7) Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived or fails to contain reasonable warnings or disclaimers necessary to make a representation or implication not deceptive.

(C)A lawyer shall not, on behalf of himself, his partner or associate, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication which:

(1) Is intended or is likely to result in a legal action or a legal position being asserted merely to harass or maliciously injure another;
(2) Contains statistical data or other information based on past performance or prediction of future success;
(3) Contains a testimonial about or endorsement of a lawyer;
(4) Contains a statement of opinion as to the quality of the services or contains a representation or implication regarding the quality of legal services which is not susceptible of reasonable verification by the public;
(5) Appeals primarily to a layperson’s fear, greed, desire for revenge, or similar emotion; or
(6) Is intended or is likely to attract clients by use of showmanship, puffery, self-laudation or hucksterism, including the use of slogans, jingles or garish or sensational language or format.

(D) A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. A paid advertisement must be identified as such unless it is apparent from the context that it is a paid advertisement. If the paid advertisement utilizes radio or television, it shall be prerecorded, approved for broadcast by the lawyer and a recording of the actual transmission in addition to a written transcript of the same shall be retained by the lawyer.

(E) A public communication does not include direct solicitation, in person or through an intermediary, written or oral; nor does it include the activity described in Ethical Consideration 2-ll(a).

DR 2-102 Professional Notices, Letterheads, Offices, and Law Lists.

(A) A lawyer or law firm shall not use or participate in the use of a professional card, professional announcement card, office sign, letterhead, telephone directory listing, law list, legal directory listing or a similar professional notice or device if it includes a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of DR 2-101(B) or that violates the regulations contained in DR 2-101(C).

(B) A lawyer shall not practice under a trade name or a name that is misleading as to the identity, responsibility or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, or deceptive within the meaning of DR 2-101(B), or is contrary to law. However, the name of a professional corporation or professional association may contain “P.C.” or “P.A.” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of or public communications by the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of or public communications by the firm.

(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.

(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

(E) Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name, an earned degree or title derived therefrom indicating his training in the law.

The Code of Professional Responsibility is Revised to Provide:

CANON 2

A Lawyer Should Assist The Legal Profession In Fulfilling Its Duty To Make Legal Counsel Available

ETHICAL CONSIDERATIONS

EC 2-1. The need for members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laymen to recognize their legal problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.

Recognition of Legal Problems

EC 2-2. The legal profession should assist laymen to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers acting under proper auspices should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers. Examples of permissible activities include preparation of institutional advertisements and professional articles for lay publications and participation in seminars, lectures, and civic programs. But a lawyer who participates in. such activities should shun personal publicity-

EC 2-3. Whether a lawyer acts properly in volunteering advice to a layman to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist laymén in recognizing legal problems. The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. Hence, the advice is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause litigation to be brought merely to harass or injure another. Obviously, a lawyer should not contact a nonclient, directly or indirectly, for the purpose of being retained to represent him for compensation.

EC 2-4. Since motivation is subjective and often difficult to judge, the motives of a lawyer who volunteers advice likely to produce legal controversy may well be suspect if he receives professional employment or other benefits as a result. A lawyer who volunteers advice that one should obtain the services of a lawyer generally should not himself accept employment, compensation, or other benefit in connection with that matter. However, it is not improper for a lawyer to volunteer such advice and render resulting legal services to close friends, relatives, former clients (in regard to matters germane to former employment), and regular clients.

EC 2-5. A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein.

Selection of a Lawyer

EC 2-6. Formerly a potential client usually knew the reputation of local lawyers for competency and integrity and therefore could select a practitioner in whom he had confidence. This traditional selection process worked well because it was initiated by the client and the choice was an informed one.

EC 2-7. Changed conditions, however, have seriously restricted the effectiveness of the traditional selection process. Often the reputations of lawyers are not sufficiently known to enable laymen to make intelligent choices. The law has become increasingly complex and specialized. Few lawyers are willing and competent to deal with every kind of legal matter, and many laymen have difficulty in determining the competence of lawyers to render different types of legal services. The selection of legal counsel is particularly difficult for transients, persons moving into new areas, persons of limited education or means, and others who have little or no contact with lawyers.

EC 2-8. Selection of a lawyer by a layman should be made on an informed basis. Advice and recommendation of third parties —relatives, friends, acquaintances, business associates, or other lawyers may be helpful. A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations. Advertisements and public communications should be formulated to convey information that is necessary to make an appropriate selection. Information that may be helpful in some situations would include: (1) office information; (2) biographical information; (3) description of one or more fields of law in which the lawyer or law firm practices; and (4) fee information.

Lawyer Advertising

EC 2-9. Members of the legal profession, as citizens of a free and enlightened nation, are entitled to share fully in the benefits and privileges which that nation provides, including the opportunity to participate in commercial forms of expression. With these privileges come attendant responsibilities and duties. It is the lawyer’s solemn responsibility to preserve public confidence in his profession and to protect the public from abuses which were deemed to necessitate earlier ethical bans on legal advertising.

EC 2-10. A primary motivation for commercial publicity lies in the need to encourage the flow of information to the public regarding the availability of legal services. The public benefit derived from advertising depends upon the usefulness of the information provided. It is essential that legal advertising be designed to identify the lawyer and his services without deception and misrepresentation. All publicity should be directed with concern for its effect on the layman. The non-lawyer is best served if advertisements are written in plain, accurate, and concise language which will not confuse or mislead the uninformed layman. Appeals to the layman’s fears or emotions are improper. It is also improper to promise benefits or to assure prospective clients of specific results. Advertisements should not convey the impression that the ingenuity of the lawyer rather than the justice of the claim is determinative. It is improper to claim or imply an ability to influence a court, tribunal, or other public body or official. Statistical data or other information based on past performance and predictions of future success are improper. Advertisements should not suggest that given procedures will always result in desired solutions but should be drawn with the recognition that conclusions as to legal needs and ap-' propriate action depend upon the unique circumstances of each client’s case.

EC 2-11(a). The content and format of the legal advertisement should comport with the dignity of the profession and promote public confidence in our legal system. Advertisements which utilize slogans, gimmicks, or other garish techniques are improper. Advertising through the use of large electrical and neon signs, billboards, soundtrucks or other extravagant media is likewise improper.

EC 2-ll(b). Recognizing that the determination of a proper fee depends upon factors incident to the particular case, it is imperative that public statements regarding average or estimated fees be made with extreme caution. Because fee information frequently may be misleading to a layman, causing later misunderstanding, a lawyer should exercise great care to assure that advertisements with respect to fee charges are complete and accurate.

EC 2 — 12. The name under which a lawyer conducts his practice may be a factor in the selection process. The use of a trade name or an assumed name could mislead laymen concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under his own name, the name of a lawyer employing him, a partnership name composed of the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional legal corporation, which should be clearly designated as such. For many years some law firms have used a firm name retaining one or more names of deceased or retired partners, and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public.

EC 2-13. A lawyer occupying a judicial, legislative, or public executive or administrative position who has the right to practice law concurrently may allow his name to remain in the name of the firm if he actively continues to practice law as a member thereof. Otherwise, his name should be removed from the firm name, and he should not be identified as a past or present member of the firm, and he should not hold himself out as being a practicing lawyer.

EC 2-14. In order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status. • He should not hold himself out as being a partner or associate of a law firm if he is not one in fact, and thus should not hold himself out as a partner or associate if he only shares offices with another lawyer.

EC 2-15. In some instances a lawyer confines his practice to a particular field of law. Except as permitted in DR 2-105, a lawyer should not be permitted to hold himself out as a specialist or as having special training or ability other than in the historically excepted fields of admiralty, trademark and patent law. A lawyer may, however, indicate in permitted advertising, if it is factual, the one or more particular areas or fields of law in which he practices. A lawyer who qualifies under DR 2-105 may advertise that fact using the designations and definitions authorized under that provision. A lawyer who is not qualified under DR 2 — 105 and advertises particular areas or fields of law must be careful not to confuse laymen about his status and should avoid any implication that he is in fact qualified under DR 2-105.

EC 2-15(a). The legal profession has developed lawyer referral systems designed to aid individuals who are able to pay fees but need assistance in locating lawyers competent to handle their particular problems. Use of a lawyer referral system enables a layman to avoid an uninformed selection of a lawyer because such a system makes possible the employment of competent lawyers who have indicated an interest in the subject matter involved.. Lawyers should support the principle of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel.

ENGLAND, C. J., and ADKINS, BOYD and OVERTON, JJ., concur.

SUNDBERG, J., concurs in part and dissents in part with an opinion, with which ALDERMAN, J., concurs.

SUNDBERG, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion in all respects save one. I respectfully dissent from the elimination of DR 2-101(C)(7) of the ABA’s model code, Proposal B, and the promulgation of DR 2-101(D) insofar as they authorize lawyer advertising through utilization of the electronic media.

I dissent with respect to electronic media advertising of legal services because I firmly believe that unlimited advertising in any form approaches the outer limits of professional propriety. I concur with the balance of thé amendments to the Disciplinary Rules because I am convinced that such action is mandated by the law of the land which I took an oath to uphold. Although I am obliged to apply the decisions of the United States Supreme Court, I am nonetheless entitled to have my reservations about their wisdom. Notwithstanding the protections of the first amendment to the United States Constitution, I question the effects of advertising upon a great and noble profession and the resultant ability of the legal profession to fill the role it is obliged to perform in our society. It is my firm conviction that the practice of law is first and foremost a profession and only incidentally a means of earning a living. To emphasize the latter, which I believe advertising does, certainly must detract from the former. The inevitable consequence of this shift in emphasis will be to weaken yet another social institution at a time when all of our institutions are at a low performance ebb.

I recognize that the deficiency in delivery of legal services remains a persistent problem, one to which this Court and The Florida Bar must be dedicated to alleviate. I am not convinced, however, that unlimited lawyer advertising is the solution many proclaim it to be. But see Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 44 L.Ed.2d 600 (1976). Compare, however, 425 U.S. at 773, n.25, 96 S.Ct. at 1831 n.25. The uncertain effect of unlimited advertising on the availability of legal services, as compared with the deleterious effect on the legal profession, necessarily prevents me from enthusiastically embracing the concept of unlimited advertising.

Because we do not, and cannot, know the effects of unlimited advertising on the legal profession and its ability to serve the public in its traditional role, I would not extend the authority for lawyer advertising beyond the mandate of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). As I read that decision, the Court recognized that “the special problems of advertising on the electronic broadcast media will warrant special consideration.” Id. at 384, 97 S.Ct. at 2709. No such special study or consideration has been given to electronic media advertising by this Court or the Bar as of this time, and I would await some experience with the other forms of advertising before launching into this arena.

ALDERMAN, J., concurs.

       Among those persons whom we have designated as respondents are: Chonin & Segor, P.A., Miami, Florida; The Legal Clinics of Pope-Hen-ninger, St. Petersburg, Florida; Florida Association of Broadcasters, Tallahassee, Florida; General Telephone Directory Company, Tampa, Florida; and the Department of Justice, Washington, D. C.

      . Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Silas GIBSON et al., Appellant, v. L. L. RATCLIFF et al., Appellee.
    No. II-387.
    District Court of Appeal of Florida, First District.
    March 23, 1979.
    James E. Moore, of Moore & Anchors, Niceville, for appellant.
    F. B. Estergren of Estergren, Fortune, Anchors & Powell, David W. Palmer, II, and Charles D. Stewart, Fort' Walton Beach, for appellee.
   PER CURIAM.

This cause is before us on appeal from the judgment and amended judgment of the Circuit Court of Okaloosa County holding the 1937 government dependent resurvey of the boundary line between land owned by the parties herein was valid and re-established the location of the line in question. We have reviewed the record in the light of the contention of appellant that the decision below conflicts with the prior decision of this Court in Gibson v. Wright, 179 So.2d 245 (Fla.1st DCA 1965), and find that the trial court did not err on the evidence presented, including the expert testimony, in the instant case in entering the final judgment of December 13,1977, denying petition for declaratory judgment and for quiet title.

However, the court was without jurisdiction to enter the amended judgment of March 23,1978, awarding damages for trespass and costs against the plaintiffs, since the record before us fails to establish that a timely motion for rehearing was served, as required by Rule 1.530, Florida Rules of Civil Procedure.

Accordingly, the judgment below is AFFIRMED IN PART and REVERSED IN PART and the cause REMANDED with directions that the amended judgment of March 23, 1978, be set aside.

McCORD, C. J., MELVIN and BOOTH, JJ., concur.


text:
    Zeph FUTCH, Appellant, v. SOUTHERN STORES, INC., Appellee.
    No. LL-487.
    District Court of Appeal of Florida, First District.
    May 15, 1979.
    Rehearing Denied March 10, 1980.

      John S. Miller, Jr., of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellant.
    John B. MacDonald of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appel-lee.
   PER CURIAM.

The issue on this appeal is whether appellant, an inactive director and officer of a corporation, can be held individually liable for contracts made on behalf of the corporation by another officer while it was involuntarily dissolved. We hold that she cannot be held liable on the record presented and reverse the trial court’s summary judgment against her.

The record reveals that appellant and her son, Frank Futch, began a petroleum distribution business under a fictitious name in September, 1968, and subsequently incorporated the business with another person in September, 1969. Appellant was the secretary and treasurer, a director, and a 50% shareholder in the corporation from its inception, but had no participation in the business whatsoever. In October, 1974, the corporation was involuntarily dissolved by proclamation of the Governor for failure to file an annual report or an annual filing fee. The dissolution was unknown to both appellant and her son. The son continued running the business as if it were incorporated and from November, 1976 to January, 1977 made numerous supply contracts with appellee in the corporate name. Several payments were made on those contracts but there remained an outstanding balance of over $60,000 at the time suit was brought.

Although the corporation was subsequently reinstated in August, 1977, appellee filed its complaint against Frank Futch and appellant, doing business as Fuco Oil and Chemical Co., Inc., jointly and severally. It claimed that because the corporation was dissolved at the time of the transactions involved, the Futchs were individually liable for contracts made by them on behalf of the corporation.

The basis of this argument was Section 607.397, Florida Statutes (1977), which provides:

“All persons who assume to act as a corporation without authority to do so shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.”

Appellee contended below and on appeal that appellant is liable as a matter of law under this statute because the contracts were transacted while she “assumed to act” as an officer and director of the corporation. In addition appellee argues that Section 607.271(5) of the new Florida General Corporation Act specifically provides that although an involuntarily dissolved corporation may be reinstated,

“[t]he reinstatement shall have no effect up on any personal liability of the directors, officers, or agents of the corporation on account of actions taken during the period between dissolution and reinstatement . . . .”

There is a dearth of authority on the point. It is well established, however, that the corporate veil will not be pierced unless it is shown that the corporation was organized or employed to mislead creditors or to work a fraud upon them. Delta AirLines, Inc. v. Wilson, 210 So.2d 761 (Fla. 3d DCA 1968); Riley v. Fatt, 47 So.2d 769 (Fla.1950). There is no showing of fraud in the record here. Furthermore, the case is analogous to Russell v. Gans, 275 So.2d 270 (Fla. 2d DCA 1973) in which the court held that where the plaintiffs attempting to collect a debt there considered at all times that they were dealing with a corporate entity, they could not question the corporate existence in the absence of pleadings and proof that the corporation was organized for an illegal purpose or to work a fraud upon them. Similarly here we believe the correct rule is that in the absence of any action inducing reliance on the individual assets of a person acting on behalf of a corporation, the plaintiff’s action should be limited to one against the corporation. There is nothing in the record showing that appellant induced any reliance on appellee’s part, or indeed that she participated in the transaction in any manner.

Accordingly, the summary judgment against appellant is reversed and the cause is remanded for proceedings consistent with this opinion.

MELVIN, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: LETTS, GAVIN K., Associate Judge.

text:
    Robley H. HACKLEY, II, Appellant, v. Marilyn B. HACKLEY, Appellee.
    No. 78-887/NT4-30.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 1979.
    Joseph Jordan of American Civil Liberties Union Foundation of Florida, Inc. of Bailey & Jordan, West Palm Beach, for appellant.
    Leonard V. Wood, Altamonte Springs, for appellee.
   LETTS, GAVIN K., Associate Judge.

An ex-husband here appeals the cancellation of his overnight visitation privileges with his 5 year old daughter solely because he is living in an unwed state with another woman. Describing himself as “old fashioned,” the judge, at the ex-wife’s request, withdrew the child’s overnight visits with her father. Under the trial court’s ruling, visitation rights, other than those of a spend-the-night variety, were continued undisturbed. We relinquish jurisdiction for a further hearing.

This is a vexing case. Not only are we mindful of the most difficult problem presented to the trial judge in this case, but more to the point, we are asked to hold that a respected and competent jurist abused his discretion by concluding that a household in which two unwed adults of the opposite sex live together is not a suitable overnight environment for a 5 year old girl.

It is urged upon us that the mores of society have changed and regretfully we must agree that they have. Nonetheless, and anachronistic though it may be, it is our conviction that such an arrangement is far from ideal lest minor children learn by example from this so-called norm and themselves later follow it. See Brown v. Brown, 218 Va. 196, 237 S.E.2d 89, 91 (1977).

None of us, in the daily dialogue with ourselves, friends, family and the facts of contemporary life, would be so naive as to argue that the live-in arrangement here described is anything but commonplace nowadays. Moreover, we also accept the premise that many of our younger generation see little, if anything, wrong with such a liaison — for economic reasons if no other. However, such practices do not, by their profusion, automatically make such an environment desirable for a 5 year old, and we are not yet prepared to throw all of the hallowed concepts of American family life out the window.

There remains nevertheless the crux of the problem which cannot be ignored, namely, the total welfare of the child must be uppermost. Even as the issuance of an official registration certificate cannot assure the mechanical welfare of an automobile, nor can the presence, or absence, of an official marriage license be in and of itself finally determinative of the emotional welfare of a minor child. All of us have knowledge of ceremonially correct households which are nevertheless emotional cesspools and the breeding ground for abnormal and emotionally unstable children. By contrast, many of us also know emotionally stable adults of the opposite sex who “live together,” yet with whom we would gladly entrust our children even though we might more gladly do so if a licensed marriage relationship existed. Faced by such a dichotomy we finally reach the point on which we must disagree with the trial judge, namely that he did not consider any factor adverse to the individual welfare of this particular child, other than his built-in dislike for such a live-in arrangement. We confess agreement with his dislike, but believe the present state of the law requires him in addition to give attention elsewhere.

Our own Supreme Court has recently held that the fact that a mother commits adultery does not by itself disqualify her from having custody of her child Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Another slightly older Supreme Court case said the same. See Smothers v. Smothers, 281 So.2d 359 (Fla.1973). This latter case, however, is not unequivocal, for the court there suggested that a live-in arrangement would have more of an adverse impact on the three children than “frequent” acts of adultery. We might or might not agree with that, however the Smothers case is otherwise distinguishable from the case now before us. In the latter, both the father and his girlfriend are not married so that “open adultery” is not involved, despite the fact that the trial judge in this cause so mis-la-beled it. Also in the Smothers case the court considered temperamental outbursts, corporal punishment of the children and arguments over visitation, all three of these negative aspects engaged in by the person living-in. No such negative conduct is alluded to in the case at bar. In truth the ex-wife and mother used to live with the father’s girlfriend and entrust this very same child in the girlfriend’s care for extended periods and sometimes overnight. In fact the only evidence in the record before us is of a loving relationship accompanied by the father’s assurance that “nothing [is] ever done or said in front of _,” who has a separate bedroom.

A further distinction between the case at bar and the two Supreme Court cases above referred to is that the latter two involved a custody challenge, whereas the challenge here is largely to a once-a-month overnight weekend visitation. However, this final distinction does not alter our conclusion, for if illicit sex will not, without more, adversely affect the welfare of the child so as to warrant uprooting permanent custody from such surroundings, then obviously an occasional visit should be less likely to threaten that same welfare.

Other jurisdictions have been similarly confronted and we note a recent decision from Illinois holding a trial judge to have abused his discretion by imposing his own moral code as the sole reason for custody disqualification. Jarrett v. Jarrett, (1978) 64 Ill.App.3d 932, 21 Ill.Dec. 718, 382 N.E.2d 12. Our examination of contemporary decisions from all over the country convinces us that in order for such a live-in arrangement to be' by itself unacceptable it must “. . .be demonstrated to have an adverse impact upon the child . . . .” In re Burrell, 58 Ohio St.2d 37, 388 N.E.2d 738, 739 (1979).

We here stop short of holding the judge’s ruling to be an abuse of his discretion, but in accord with the overwhelming majority of recent case law, we relinquish this cause for a further hearing on the question of whether the live-in arrangement in and of itself has an impact on this child’s welfare as distinct from it simply failing to satisfy the moral code of the trial judge. At that same hearing, all other factors should be considered. > We note the father’s live-in companion has a young child of her own and that too might be considered as a plus for the suitability of the environment. We would reiterate that a live-in arrangement such as is before us, continues as a negative factor for the trial judge to consider and hold only that it is insufficient in and of itself.

Finally, though not necessary to this conclusion, the record reflects that as of March 1978, the father was contemplating marriage to this same girlfriend, but that a final decision had not been reached because each had already failed in marriage and both needed more time to crystallize their relationship. Presumably that process is complete by now and should be looked into.

We hope this further hearing can be accomplished without the parents engaging in a tug of war with the child’s loyalties and emotions.

JURISDICTION RELINQUISHED FOR SIXTY DAYS IN ACCORDANCE HEREWITH.

CROSS, J., and DOWNEY, JAMES C., Associate Judge, concur.

      . As an example we refer to the removal of a child from his or her wedded parents and placement in a foster home.

      . Note however there is no suggestion in the case before us that the mother’s custodial care of her child is anything other than perfect.

      . Also at stake is a month in the summer.

      . See also Commonwealth v. Steiner, 257 Pa. Super. 457, 390 A.2d 1326 (1978); Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977); Greer v. Greer, 346 So.2d 846 (La.App. 1st Cir. 1977); DiStefano v. DiStefano, 60 A.D.2d 976, 401 N.Y.S.2d 636 (Sup.Ct.1978); and Brown v. Brown, 237 S.E.2d 89 (Va.1977); Burris v. Burris, 70 Ill.App.3d 503, 26 Ill.Dec. 810, 388 N.E.2d 811 (3rd Dist. 1978); Wadlington, Sexual Relations after Separation or Divorce: The New Morality and the Old and New Divorce Laws, 63 Va.L.Rev. 249 (1977).


text:
    Abdul Hakeem Jamal Nasir SHABAZZ, formerly Owen D. Denson, Jr., Petitioner, v. FLORIDA PROBATION AND PAROLE COMMISSION, Respondent.
    No. PP-449.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1979.
    Rehearing Denied March 14, 1980.

      Abdul Hakeem Jamal Nasir Shabazz, pro se.
   PER CURIAM.

This cause is before us on Petition for Writ of Mandamus, Prohibition and/or Declaratory Judgment, asserting errors in determination of petitioner’s presumptive parole release date. We issued rule to show cause, but now determine that petitioner has failed to exhaust his administrative remedies. Houston v. Florida Parole and Probation Commission, 377 So.2d 34 (Fla. 1st DCA 1979); Anderson v. Florida Probation and Parole Commission, 378 So.2d 861 (Fla. 1st DCA 1979); Masher v. Wainwright, 378 So.2d 861 (Fla. 1st DCA 1979). The petition is denied.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    HARBOUR CLUB CONDOMINIUM NO. THREE, INC., Appellant, v. K. D. SAUDER and Anita L. Sauder, Appellees.
    No. 79-23.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1979.
    Rehearing Denied Feb. 21, 1980.
    John T. Blakely, of Johnson, Blakely, Pope, Bokor & Ruppel, and Robert R. Tench, Clearwater, for appellant.
    James A. Baxter of Baxter & Rinard, Clearwater, and Adrian Bacon of Bacon & Hanley, St. Petersburg, for appellees.
   HOBSON, Acting Chief Judge.

We have this case before us for the second time. Pursuant to our mandate filed in Sauder v. Harbour Club Condomini um No. Three, Inc., 346 So.2d 556 (Fla. 2d DCA 1977), the trial court set the cause for hearing. Appellant, Harbour Club Condominium No. Three, Inc. (Harbour Club), moved the court to “present additional evidence and oral argument and/or legal mem-oranda on the issue of unconscionability.” The trial court denied this motion. We reverse.

Harbour Club commenced this action by filing a complaint alleging that the condominium developers (K. D. and Anita Sau-der) breached a recreation facilities lease, 1) by failing to deliver quiet enjoyment to part of the demised premises, a recreation room, or 2) that the lease was unconscionable. At the conclusion of the nonjury trial, the court rendered a final judgment in favor of Harbour Club, cancelling the lease on the ground that the developers had substantially breached the lease by failing to deliver quiet enjoyment of the recreation room to Harbour Club. It was unnecessary for the court to rule on the allegation that the lease was unconscionable. Indeed the main thrust of the case dealt with breach of contract and little mention of unconsciona-bility appears in the record.

The developers appealed the final judgment and on May 20, 1977, this court ruled that the recreation facilities lease should not have been cancelled. The cause was remanded for additional proceedings.

Subsequent to our mandate, Harbour Club moved for permission to amend its original complaint by adding a count based on the theory of unjust enrichment. That theory was predicated on a Florida Supreme Court decision rendered during the pendency of the appeal in the original casé. The trial court, exercising its broad discretion in this matter, refused to permit the amendment, and Harbour Club then moved to present additional evidence and argument and/or legal memoranda on the issue of unconscionability. The developers countered this motion with the argument that the trial court did not have jurisdiction to consider the issue of unconscionability after remand from the appellate court.

The trial court ruled that this court’s mandate did not authorize it to consider or conduct a hearing on the issue of uncon-scionability. Harbour Club moved for a rehearing on the order, which motion was denied.

The prior appeal was taken from a judgment cancelling a common and recreation areas use agreement because of developer’s breach, and that issue was the sole question before this court at that time. Sander v. Harbour Club Condominium No. Three, Inc., at 557. We were not asked to nor did we consider the question of uncon-scionability. Our directions to the trial court on remand included the specific direction to consider the effect of a settlement agreement made between Harbour Club Condominium No. Two and Harbor Club Condominium No. Three. Our directions further included the general statement that the trial court could consider “such other ancillary matters as may be necessary to terminate this litigation.”

Appellant has directed us to our decision in Tri Par Land Development Corporation v. Henthorn, 241 So.2d 429 (Fla. 2d DCA 1970). In that case Tri Par sought cancellation of restrictive covenants on the ground that 1) they were perpetual or 2) that there was partial impossibility of performance. The trial court cancelled the covenants on the ground that they were perpetual and did not decide the impossibility of performance issue. This court reversed, finding that the covenants were not perpetual, and remanded the case to the lower court without directions. After remand, Tri Par asked the lower court to consider the issue of impossibility of performance as an alternate theory for relief; however, the trial court held that it was powerless to adjudicate the second theory. Tri Par appealed from that second judgment and this court ruled that the trial court did have authority to consider the second theory even though it had not been expressly granted in the mandate. In the instant case, the trial court distinguished Tri Par on the ground that it had been remanded without instruction, while the Harbour Club case was remanded with instructions. The instruction by this court was for a further hearing in which the trial court “may” consider the settlement agreement and “other ancillary matters.” When a case is reversed and remanded with a general instruction for further proceedings, a trial judge is vested with a broad discretion in handling or directing the course of the cause thereafter. Lucom v. Potter, 131 So.2d 724 (Fla.1961). This is true even though the general directions are in addition to certain specific instructions.

Therefore, we reverse the final judgment entered by the trial court denying Harbour Club’s motion to present additional evidence on the issue of unconscionability and remand this case for a further hearing which will include that issue.

REVERSED and REMANDED.

OTT and RYDER, JJ., concur.

      . Our mandate stated:
      We, therefore, remand this case for a further hearing in which the court may consider the effect of this settlement agreement and make such reductions in the rentals due under the common and recreation areas use agreement of Harbour Club Condominium No. Three as may be necessary to offset any expenses which the unit owners in Harb-our Club Condominium No. Three may incur to Harbour Club Condominium No. Two, Inc. by virtue of their use of the recreation room under the settlement agreement and for such other ancillary matters as may be necessary to terminate this litigation. Sauder v. Harbour Club Condominium No. Three, Inc., 346 So.2d 556, 561 (Fla. 2d DCA 1977).0

      . Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), in which the court held that a condominium .association, under certain circumstances, may have a good cause of action against a developer for unjust enrichment.


text:
    Horace Stephen BLUE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-866.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Rehearing Denied March 10, 1980.
    Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant, Horace Stephen Blue, appeals the denial of his motion to vacate judgment and sentence following an evidentiary hearing.

Defendant Blue pled guilty to three counts of robbery, two counts of carrying a concealed weapon and one count of possession of a weapon while engaged in a criminal offense. He received 12 year sentences on the robbery counts, one year sentences on the carrying concealed weapon charges and a five year sentence for the possession of a weapon charge. All sentences were to be served concurrently. Subsequently, Blue filed the instant motion to vacate judgment and sentences pursuant to Fla.R.Crim.P. 3.850 on the grounds that 1) his pleas of guilty to the charges were involuntarily, unknowingly and unintelli-gently tendered, and 2) he was ineffectively represented by counsel.

Contrary to these contentions, a review of the transcript of the evidentiary hearing on his motion to vacate and the transcript of the hearing at which he tendered his guilty plea reflects that Blue sufficiently understood the charges against him, knowingly and intelligently pled guilty to these charges and was adequately represented by counsel. Thus, the order denying his motion to vacate must be and is affirmed. See Williams v. State, 316 So.2d 267 (Fla.1975); Crespo v. State, 339 So.2d 697 (Fla.3d DCA 1976); Bremser v. State, 322 So.2d 642 (Fla.3d DCA 1975).

Affirmed.


author: COBB, Judge. COBB, Judge.

text:
    AMERICAN MOTORCYCLE INSTITUTE, INC., Appellant, v. Edna MITCHELL, Appellee.
    No. LL-193/T1-8.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 1980.
    On Rehearing Feb. 27, 1980.

      Richard Kane, Daytona Beach, and Wilson W. Wright, Tallahassee, for appellant.
    Paul Bernardini, Daytona Beach, and Cynthia S. Tunnicliff, of Spector & Tunni-cliff, P. A., Tallahassee, for appellee.
   COBB, Judge.

The appellee, Mitchell, plaintiff in the trial court, entered a contract in 1974 with the appellant, American Motorcycle Institute, Inc. (hereinafter designated AMI), whereby she was to procure student enrollments for AMI’s school of instruction and AMI was to supply her leads for potential enrollees. For this, she had to pay a fee and purchase certain scholarships to the school.

Various representations to induce plaintiff to enter the license agreement were made regarding potential income, number of established personnel, commission divisions in exclusive territory, monetary value of the scholarships, the production records of other licensees, training programs and future building plans. There was evidence at trial that several of these representations were false.

In 1975, the furnished leads decreased and they stopped altogether in 1976. Plaintiff could never make the required monthly quota, and her gross earnings in 1974, 1975 and 1976 were minimal in comparison with the suggested potential figures.

Plaintiff filed a complaint seeking compensatory damages for breach of contract and, in a second count, punitive damages for fraud and deceit, the latter count predicated on fraudulent inducement to enter the contract initially.

At trial, the jury returned a verdict of $10,000 for compensatory damages for breach of contract under Count I, and a verdict of $50,000 for punitive damages for fraud under Count II. There was no consideration by the jury of compensatory damages in regard to Count II.

On appeal, AMI contends that the trial evidence was insufficient to sustain a finding of fraud and that the amount of punitive damages is unconscionable. These contentions are without merit. In regard to the latter, we note that Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) has greatly circumscribed the discretion previously available to a trial court in granting a new trial based on excessive punitive damages.

AMI also contends that the evidence was insufficient to serve as a basis for the compensatory damage award. Here, plaintiff’s damages necessarily were the result of lost profits. These must be shown with a reasonable degree of certainty, based on proof of income and expenses for a reasonable period of time prior to the breach. New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856 (1935). In this case plaintiff testified only as to annual gross incomes, omitting evidence as to the amount of operating expenses, even though it was clear that such expenses existed. This omission requires reversal of the compensatory damage award. Florida Ventilated Awning Co. v. Dickson, 67 So.2d 215 (Fla.1953).

The punitive damage award for fraud is fatally defective because it is unsupported by an award of compensatory damages, either actual or nominal. An action for punitive damages cannot be maintained independently of an action for compensatory damages. McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221 (1943). These compensatory damages for the underlying breach of duty may be nominal as well as actual. Elyria-Lorain Broad. Co. v. National Com. Indus., Inc., 300 So.2d 716 (Fla. 1st DCA 1974); cert. dismissed, National Com. Indus., Inc. v. Elyria-Lorain Broad. Co., 337 So.2d 809 (Fla.1976). The appellee argues that the case of Lassiter v. International Union of Op. Engn., 349 So.2d 622 (Fla.1977) dispenses with the necessity for the compensatory award, and that the award of punitive damages implies a finding of the underlying breach of duty and the requisite nexus between that breach and the punitive damages award.

We do not find that conclusion in Lassi-ter. Nor have other post-Lassiter decisions: Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla. 3d DCA 1979); Raffa v. Dania Bank, 372 So.2d 1173 (Fla. 4th DCA 1979); Flood v. Ware, 363 So.2d 1101 (Fla. 2d DCA 1978), cert. denied 372 So.2d 468 (Fla.1979); and Sonson, v. Nelson, 357 So.2d 747 (Fla. 3d DCA 1978), cert. denied 364 So.2d 889, 891 (Fla.1978).

Lassiter merely resolved a pre-existing conflict among various appellate court decisions by disavowing a rule that would require some mathematical relationship between the amounts awarded on one claim for compensatory damage and for punitive damage.

The plaintiff in the instant case cannot utilize the compensatory award for the 1976 breach of contract under Count I, even had that award been sustained by the evidence, as the underlying basis of the punitive damage award under Count II was predicated on a-separate and independent tort occurring in 1974. See Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972). The plaintiff’s claim under Count II of her complaint for fraud made no demand for compensatory damages and such were not submitted for consideration by the jury; it considered only an award vel non of punitive damages for the alleged fraud. Therefore, Count II was defective from its inception, and the verdict was fundamentally improper.'

Accordingly, the judgment for both compensatory damages under Count I and punitive damages under Court II must be reversed. The appellant is entitled to a new trial on each count.

REVERSED AND REMANDED FOR NEW TRIAL.

ORFINGER and UPCHURCH, JJ., concur.

ON REHEARING

COBB, Judge.

Following issuance of our opinion in this cause filed January 2, 1980 (1980 FLW 77), the appellee plaintiff, Edna Mitchell, filed a timely “motion for rehearing and clarification” on January 16, 1980. This motion pointed out, inter alia, that the appellant did not challenge its liability in regard to Count I, an action for breach of contract, only the award of damages therefor. We believe this is correct.

Then, on January 21, 1980, the appellee filed an untimely “amended motion for rehearing and clarification.” In that motion, the appellee attempted to raise, for the first time, the question of whether or not the appellant defendant made timely objection before the trial court on the points presented in this appeal, which were argued on the merits in the briefs and the oral arguments heretofore submitted to this court. If these points were not properly preserved by timely objection before the trial court, that failure should have been brought to our attention long before nineteen days subsequent to the filing of our appellate decision. If it had been raised in the appellee’s answer brief, there would have been ample opportunity for the appellant to have responded in its reply brief and, if indicated, moved to supplement the record pursuant to Fla.R.App.P. 9.200(f). Instead, if we were to permit this amended motion with its new matter, the appellant would have ten days to serve a reply to it.

We firmly believe that an appellate court, should not be asked to pass upon matters that initially should have been raised, but were not raised, before the trial court. But we also believe it would be inimical to a fair disposition of an appellate case to allow an appellant to raise untimely challenges of the appellate decision, thereby depriving this court of the benefit of comprehensive briefing and a complete record based on a full and fair opportunity for designation by both parties. As the First District Court of Appeal said in regard to predecessor Florida Appellate Rule 3.14(a):

There must be a conclusion to all litigation. The cited rule was designed to produce that result and is to be strictly construed with that purpose in mind. Only upon a timely showing of good cause will the period allowed for filing the application for rehearing be extended. Harris v. State, 107 So.2d 402 (Fla. 1st DCA 1958).

We decline to consider the untimely amended motion for rehearing. We grant the timely motion for rehearing and for clarification by substituting the following last full paragraph for that in our origional opinion:

Accordingly, the judgment for both compensatory damages under Count I and punitive damages under Count II must be reversed. The appellant is entitled to a new trial on the issue of damages in regard to Count I and a new trial on the issues of liability and damages under Count II.

We observe further that our ruling in regard to Count II is without prejudice to the right of the trial court to entertain appropriate motions (e.g., to amend or to dismiss) directed to the insufficiency of the complaint.

ORFINGER and UPCHURCH, JJ., concur.


author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    Robert Leslie KREISER, Appellant, v. STATE of Florida, Appellee.
    No. 78-2190/T4-243.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, Judge.

The defendant appeals his conviction of burglary on grounds of allegedly prejudicial comments by the prosecutor during closing argument and the refusal by the trial court to instruct on the maximum penalty. We have reviewed the comments cited by defendant and do not find them so prejudicial as to warrant a new trial. See Oliva v. State, 346 So.2d 1066 (Fla.3d DCA 1977), cert. dismissed 348 So.2d 951 (Fla.1977); Johnson v. State, 348 So.2d 646 (Fla.3d DCA 1977). Moreover, the defendant’s failure to timely object to those comments precludes appellate review. Clark v. State, 363 So.2d 331, 335 (Fla.1978); Gibson v. State, 351 So.2d 948, 950 (Fla.1977).

We consider the failure of the trial court to instruct the jury as to the maximum penalty harmless error as more fully explicated in this court’s opinion in Murray v. State, 378 So.2d 111 (Fla.5th DCA 1980).

The defendant also urges, and the state agrees, that the defendant was not given credit for time served prior to sentencing. Section 921.161(1), Florida Statutes (1977). Thus, the sentence is reversed and the case remanded to the trial court for resentencing.

JUDGMENT AFFIRMED, SENTENCE REVERSED AND REMANDED.

ORFINGER, J., concurs.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Judge,

concurring specially:

While I agree here, as I did in Murray, that the refusal to instruct the jury in regard to the penalty was harmless error, I must say it was error and express my hope the instruction will be given when requested, henceforth, in order to avoid unnecessary appellate litigation and eventual rulings of a corrective nature.


text:
    Edward THURSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1151.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied March 10, 1980.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Terry, 336 So.2d 65 (Fla.1976); Brown v. State, 206 So.2d 377, 383 (Fla.1968); Buchanan v. State, 111 So.2d 51 (Fla. 1st DCA 1959); compare Walker v. State, 351 So.2d 382 (Fla.1977).


text:
    Charlotte VOGEL, Trustee, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, a corporation organized and existing under the laws of the United States of America, and Adlaine D. Pinkney, Appellees.
    No. 79-1081.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied March 12, 1980.

      Herman Cohen, Miami, for appellant.
    Paul M. Cummings, Miami, for appellees.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916); see also Arlt v. Buchanan, 190 So.2d 575 (Fla.1966).


author: ERVIN, Judge.

text:
    Brady Otis BYRD, Appellant, v. STATE of Florida, Appellee.
    No. NN-303.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1980.

      Clinton H. Coulter, Jr. of Duvall & Coulter, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Byrd appeals his conviction for possession of narcotics found inside his car following a warrantless search.

Patrolling officers received information by radio that a white female had been possibly abducted by two black males and placed into a white Lincoln Continental automobile at a certain location in Tallahassee. Sometime later a second BOLO was received by them pertaining to the theft of a purse in the general area where the abduction was believed to have occurred. It gave also a general description of two black males, similar to the description of the two suspects provided in the prior BOLO. The officers stopped a white Continental automobile. The driver, appellant, was questioned, and one of the officers, while standing outside the car, saw what appeared to be a purse in the back seat. The officer asked appellant if he could check the purse and was told to go ahead. Upon opening the passenger’s door to the automobile the officer saw “marijuana roaches” in an open ashtray. Defendant was placed under arrest, the automobile searched and additional narcotics were found in other parts of the .car.

Appellant first argues that his initial detention was invalid since the information received over radio was based on an unverified informant’s tip. There is language in St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978) which provides support to appellant’s argument. In St John, the court stated: “If the police received the bolo information from some unknown tipster, it would not carry the credibility necessary to justify reliance thereon.” Id. at 863. We consider this statement much too broad. We note that the Fourth District Court of Appeal, in announcing its rule, relied upon the decision of the Second District Court of Appeal in State v. Hendry, 309 So.2d 61 (Fla. 2d DCA 1975). The Hendry decision, however, was later receded from by the Second District Court of Appeal in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), where the court held that an anonymous tip can provide the basis for a valid stop so long as the information carries enough indi-cia of reliability to justify the stop. 366 So.2d at 838-39. We note additionally that the language stated by the Fourth District Court of Appeal in St. John appears to have been implicitly disapproved by that court’s later decision in Isham v. State, 369 So.2d 103, 104 (Fla. 4th DCA 1979), holding that the police had the right and even a duty to investigate a telephone call received from an anonymous informant. It struck down, however, the search following the encounter because the information relayed did not suggest that the defendant was armed with a dangerous weapon and there existed neither consent nor probable cause to search.

A stop of an automobile — as opposed to a search — is not necessarily analyzed in terms of arrest, probable cause for arrest, or warrants based on probable cause. If the stop is prompted not by probable cause, but by an officer’s suspicion that criminal activity may be present, the legality of the stop is then measured by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The reasonableness of the officer’s conduct is in turn determined by balancing the violation of the individual’s privacy rights against the public’s interest in preventing crime. At a suppression hearing an officer should be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that” criminal activity is afoot. Terry v. Ohio, supra, 392 U.S. 21, 88 S.Ct. 1880. The “articulable” facts inducing the stop need not be directly observed by the officer. They may be furnished to him by a known informant, and if the information provided carries enough indicia of reliability, a stop will not be invalidated. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Other cases have permitted police encounters with individuals or vehicles even though the information provided came from an anonymous source and was unrelated to the suspect’s possession of a dangerous weapon. United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970); United States v. Hernandez, 486 F.2d 614 (7th Cir. 1973), cert. den., 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); State v. Chatmon, 9 Wash.App. 741, 515 P.2d 530 (1973). And see general discussion in State v. Hetland, supra at 837-38.

The above rules apply only to the initial encounter — not to a search. Although, a stop of a vehicle may under particular circumstances be reasonable even though probable cause does not exist, a further intrusion may not be judicially condoned unless consent is given by the occupant. United States v. Brignoni-Ponce, supra, 422 U.S. at 881-82, 95 S.Ct. at 2580-81.

We conclude there is no necessity, as stated in St. John v. State, supra, that the information contained in a BOLO be provided from a known informant so long as the other criteria previously mentioned are present. We decline to follow the rule announced in St. John.

The stop in the present case, although based upon information received from an unknown source, was not unreasonable since the detaining officer was able to articulate facts at the suppression hearing which gave rise to his reasonable belief that criminal activity was afoot. The automobile and its occupant matched the description previously furnished in the BOLO. As such, the information carried “enough indi-cia of reliability” to justify the initial intrusion.

There is nothing in the record reflecting that defendant did not freely and voluntarily consent for the officer to enter the car. At the hearing the officer stated that he asked defendant if he might enter the car to look at that which appeared to. be a purse, and the defendant replied that he could. The defendant, as was his privilege, elected not to testify. As a result, there was no challenge by defendant at the hearing that he was required to submit to superior authority. While the officer did not state that he advised defendant he could -decline permission, the law is clear that even though a defendant is not informed of his right to withhold consent, a search will be upheld if it appears from a totality of all the circumstances that consent was voluntarily given. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Accord, State v. Custer, 251 So. 2d 287 (Fla. 2d DCA 1971); Dykman v. State, 300 So.2d 695 (Fla. 3d DCA 1974), cert. den., 312 So.2d 742 (Fla.1975). After the officer was legally inside the car, he could validly seize contraband seen by him in plain view, State v. Ashby, 245 So.2d 225 (Fla.1971), arrest the defendant for its possession, then conduct a search of the car.

Appellant’s reliance upon St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978) is misplaced. There, as here, the detaining officer had the right to stop defendant’s vehicle because the information provided to him gave rise to a well-founded suspicion that criminal activity was present. The searching officer in St. John, however, had no right to enter the automobile, absent consent or probable cause, which were lacking. Consent is of course the distinguishing factor here.

Appellant argues also that the lower court erred in denying his motion to exclude a chemist’s report which had not been timely provided to him by the state in its response to his request for discovery. Appellant has failed to demonstrate that the state’s delay in providing the report prejudiced him in his defense since the case was continued, and the case was not tried until approximately 90 days following receipt of the laboratory report. A breach of a rule of discovery does not invalidate a conviction in the absence of prejudice. See Richardson v. State, 246 So.2d 771 (Fla. 1971); Collier v. State, 353 So.2d 1219 (Fla. 3d DCA 1977).

Finally, appellant claims that the trial court erred in denying his motion for mistrial since the state failed to provide him with a copy of the amended information upon which he was later adjudged guilty, and in denying his motion in limine to restrict the state’s case against the defendant at trial on the original, not amended, information. On the day before trial, defense counsel learned for the first time the information had been amended by increasing the counts in the information from three to four. Nevertheless, despite his knowledge, the attorney, at the outset of trial, announced that he was ready to proceed. If a defendant goes to trial without objecting, he waives his right to object to a failure to arraign or to an irregularity in the arraignment. Fla.R.Crim.P. 3.160(b). See also Lackos v. State, 339 So.2d 217 (Fla.1976); State v. Casería, 358 So.2d 1144 (Fla. 4th DCA 1978). Moreover the right of an accused to be furnished a copy of the indictment or information may be waived. McNeal v. Culver, 113 So.2d 381 (Fla.1959), rev. on other grounds, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445.

We must assume that appellant was not handicapped in the preparation of his defense by the state’s failure before trial to supply him with a copy of the amended information once his lawyer, aware of the amended information, represented to the court his intention to go to trial.

AFFIRMED.

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

      . The purse was in fact a camera case.

      . The amended information was filed with the clerk more than 90 days before trial, yet inexplicably defense counsel never received a copy of it.


text:
    Ida O. LIPPMAN, Sara O. Morgan & Anne O. Grunthal, Appellants, v. Larry LONGERGAN, a/k/a Lawrence D. Longergan, Appellee.
    No. 00-472.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1980.
    As Clarified Feb. 28, 1980.
    Arnold H. Slott of Glickstein, Crenshaw, Glickstein, Block & Slott, Jacksonville, for appellants.
    C. Ray Greene, Jr. of Greene & Greene, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: NESBITT, Judge.

text:
    Eugene E. MORI d/b/a Mori Enterprises, Appellant, v. MATSUSHITA ELECTRIC CORPORATION OF AMERICA, a Foreign Corporation d/b/a Panasonic, Appellee.
    No. 78-2091.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Rehearing Denied March 10, 1980.

      Papy, DuVal, Poole & Usich and Harvey DuVal, Coral Gables, for appellant.
    August, Gassen, Pohlig & Milstein and Joseph Gassen, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   NESBITT, Judge.

This is an appeal and a cross-appeal from a final judgment entered in an action for breach of contract.

For convenient reference, the appellant will be referred to as “Mori” and cross-appellant, Matsushita Electric Corporation of America, a foreign corporation, d/b/a Panasonic as “Panasonic.”

The record reveals that in October of 1972, Mori and Panasonic entered into a written agreement whereby Mori agreed to build, according to specifications, 40,000 square feet of warehouse space and lease the same to Panasonic for a term of ten years. The agreement did not provide for a delivery date. Thereafter, on March 9, 1973, the parties entered into an addendum to the original agreement providing that construction would commence “forthwith” and Mori was to deliver to Panasonic the warehouse space not later than July 23, 1973. Mori developed more expansive plans to construct a 100,000 square foot warehouse complex which embraced that space to be built and leased to Panasonic. Panasonic had an option to lease an additional 20,000 square feet effective two years from the delivery date. As of April 10, 1973, Mori had neither obtained financing nor a building permit. Panasonic, having become concerned over the completion date, forwarded a letter to Mori dated April 10, 1973 stating that unless visible construction was commenced by April 19, 1973 it would repudiate the agreement. Mori immediately began the placement and compaction of fill upon the proposed construction site.

On April 24, 1973, Panasonic demanded that Mori enter into a further written agreement requiring adherence to strict construction schedules. Mori refused and Panasonic immediately repudiated the agreement as modified. In May of 1973, Panasonic entered into an agreement for construction of similar facilities with another party in the same industrial complex and ultimately obtained occupancy thereof during late November 1973.

On July 17, 1973, Mori commenced an action for breach of contract seeking, by amended complaint, damages against Panasonic. In its answer, Panasonic denied the material allegations of the amended complaint and, by affirmative defense, alleged that it was Mori who had breached the contract. Panasonic counter-claimed for the return of its security deposit as well as costs and damages. The issues of liability and damages were bifurcated.

In the chronology, it is pertinent to first consider the cross-appellant’s points on appeal.

I

In a non-jury trial, the court resolved the issue of liability in favor of Mori holding that Panasonic had breached the contract by rescinding same on April 24,1973. Panasonic claims it should not have been held liable for terminating the agreement. It contends that it was reasonable to conclude that Mori had committed a prospective breach of the contract.

A prospective breach of the contract occurs when there is absolute repudiation by one of the parties prior to the time when his performance is due under the terms of the contract. Such a repudiation may be evidenced by words or voluntary acts but the refusal must be distinct, unequivocal, and absolute.

The trial court did not find a repudiation by Mori nor did it find that Mori had indicated an intent to abandon the contract by placing himself in a position which would render it impossible for him to comply with the contract. See Harper v. Bronson, 104 Fla. 75, 139 So. 203 (Fla.1932); Hall v. Northern & Southern Co., 55 Fla. 235, 46 So. 178 (Fla.1908). The findings of the trial court arrive here clothed with the presumption of correctness and where the evidence, although conflicting, is not found to be clearly erroneous, the trial court’s findings will not be disturbed. Mart v. Leibman, 281 So.2d 367 (Fla. 3d DCA 1973); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So.2d 73 (Fla. 3d DCA 1973); Harbor Yacht Repair, Inc. v. Sanger, 279 So.2d 64 (Fla. 3d DCA 1973).

The issue of damages was subsequently tried, also non-jury, and that proceeding culminated in a final judgment entered by the trial court on September 1, 1978. That judgment, provided that Mori was to recover from Panasonic the sum of $45,745.96 which represented Mori’s loss of profits. That figure was arrived at by taking the actual profit which Mori would have received had both parties been required to complete the contract, that is, total rental and other monies Mori was to receive for the ten-year term of the contract minus the expenses which Mori would have incurred in carrying out the terms of the ten-year lease and completing the warehouse by July 23 as prescribed by the agreement as amended on March 9, 1973. As part of the expenses which Mori would incur under the contract, the trial court included the sum of $222,030.70 which it found to be the additional costs Mori would have had to expend to complete the entire 100,000 square foot structure by the July 23, 1973 completion date. Also included in the expenses Mori would have incurred were: (1) management and maintenance costs; (2) insurance; and (3) a financing fee.

In the trial court, as on appeal, the parties are in total disagreement as to the proper measure of damages to be applied. Panasonic, in the lower court and in this cross-appeal, takes the position that the transaction should have been treated as though it were a conveyance between the parties and consequently damages based on “benefit of the bargain,” applicable between landlord and tenant, should have been applied. Mori urges that the measure to be applied was loss of profits. Loss of profits is a proper measure for damages resulting from the anticipatory breach of a contract. “This is especially true where the breach consists in repudiating it or otherwise preventing its performance, without the fault of the other party who is willing to perform it.” 9A Fla.Jur., Damages, § 83.

The trial court agreed with Mori’s approach and awarded damages based on loss of profits arising from the repudiation by Panasonic and invoked and applied the rule long adhered to in Florida as enunciated in Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890), wherein the Supreme Court held:

Where the time for the performance of an executory contract has arrived, or where the contract is being performed, and one of the parties notifies the other unequivocally that he will not perform or further perform his part, or will not accept performance by the other, the latter may treat the contract as put to an end or entirely broken by the former, and, if ready and willing to perform his part, sue him at once for an entire breach of contract, and can recover as damages the same profits that he would have earned had he entirely performed the contract.

In other words, the trial court applied the rule of compensatory damages which were foreseeable by the parties under the doctrine of anticipatory breach. In so ruling, the trial court was correct. In all the cases examined awarding damages in landlord-tenant relationships, the building was either completed or in existence at the time of the breach. No authority has been cited us and our independent research reveals none to support Panasonic’s position in this cross-appeal. In point of fact, the warehouse in question had not been completed at the time of the trial on damages in July of 1978.

The other points raised by Panasonic/cross-appellant have been thoroughly considered and are found to be without merit..

II

In the main appeal, Mori contends that the trial court should not have held him to strict performance of the contract in assessing his damages. Mori argues he should not have been held to the July 23, 1973 completion date because he had agreed to reimburse Panasonic for public warehousing of its merchandise in the event the building was not completed on time. Mori does not contend that time was not a material element but rather that this clause would have exculpated him from the strict requirements of meeting the completion date.

This contention is dispelled by the case of Sullivan v. McMillan, supra, which Mori relies upon in discussing damages, wherein the court stated: “It cannot be that the plaintiffs are to be better off than they would have been if they had performed the contract.” As applied to the case sub judice, the trial court simply held that Mori should not be placed in a better position because Panasonic breached the contract than he would have been had they performed. The trial court did, most emphatically, hold Mori to the July 23 completion date. Having found that Mori could have completed the warehouse by July 23, the court deducted from his damages the sum of $222,030.70 for the cost of the extraordinary outlay that it would have taken to complete the building according to schedule.

Panasonic contends that this setoff of 100% of the cost overrun was proper in that Mori would not have been able to perform by the July 23, 1973 delivery date because he could not have provided a certificate of occupancy from governmental authorities unless the entire structure was completed. Such an argument presupposes full performance by the aggrieved promissor and-in this case actual completion of the warehouse. When the doctrine of anticipatory breach is properly invoked, the promissor need not actually perform under the agreement but need only be ready and willing to perform. Slaughter v. Barnett, 114 Fla. 352, 154 So. 134 (1934); Sullivan v. McMillan, supra. Moreover, as has already been discussed, the trial court found that it was possible for Mori to have performed by the July 23, 1973 deadline. Additionally, it is evident that the cost overrun would have been incurred to build the entire 100,000 square feet of warehouse, as conceived by Mori, rather than only 40,000 square feet for which Panasonic had bargained. Only that part of the overrun which would be allocable to that portion of the warehouse space bargained for could properly be charged against the monies to be received for the rental of that same space. The trial court therefore was in error to offset Mori’s anticipated profits under the contract by the full $222,030.70.

Mori also asserts that there was insufficient evidence as to the actual amount of insurance and financing fee to justify a setoff of these items as expenses against his loss of profits. Expenses necessarily must be considered in ascertaining anticipated profits. We agree with the well established principle that an award of loss of profits must be supported by evidence and cannot be based upon mere speculation or conjecture. However, it is also well established “that where damages cannot be precisely and mathematically determined, the trial judge is vested with reasonable discretion in making awards of damages.” John Hancock Mutual Life Insurance Company v. Mark-A, Inc., 324 So.2d 674 (Fla. 2d DCA 1975). We find, in review of the record before the court, that there was ample evidence to ascertain the amount of these expenses. The degree of certainty required is not one of precise measure but rather one which- may be established by sufficient and competent testimony. John Hancock Mutual Life Insurance Company v. Mark-A, Inc., supra.

We are in accord with the findings of the trial court as to liability and the rule of damages employed except as to the 100% cost overrun which was deducted from Mori’s damages. The trial court erred in setting off more than 40% of the cost overrun against Mori’s money judgment. Accordingly, the judgment appealed from is remanded with directions to render an amended judgment setting off only that portion of the overrun allocable to the contract, i. e., 40% of the $222,030.70 overrun instead of the entire amount.

Affirmed in part, reversed in part.

      . The addendum also provided that, in the event Mori failed to complete and deliver by the date certain, it would reimburse Panasonic for warehouse charges in connection with storage of merchandise in public warehouses and other extraordinary expenses.

      . 11 Fla.Jur.2d, Contracts, §§ 172, 174 and 226 and cases cited therein.

      . As to loss of profits as proper measure of damages, see cases under footnote 77 of § 83.

      . See footnote 1, supra.


author: PER CURIAM. PER CURIAM. BERANEK, Judge,

text:
    Jerome A. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 77-2428.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

ON PETITION FOR REHEARING

PER CURIAM.

Petition for rehearing is denied.

HERSEY and GLICKSTEIN, JJ., concúr.

BERANEK, J., concurs specially, with opinion.

BERANEK, Judge,

specially concurring.

I concur in the denial of the motion for rehearing because I believe appellant did not present a timely request for a jury instruction on maximum and minimum penalties. I therefore believe the issue of the adequacy of the instructions given was not properly preserved for review.


author: MCDONALD, PARKER LEE, Associate Judge.

text:
    Carolyn WILLIAMSON, Appellant, v. DEPARTMENT OF REVENUE, State of Florida, and Triangle Refineries, Inc., Appellees.
    No. NN-160/T1-58.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.
    Rehearing Denied March 3, 1980.

      Alan B. Fields, Jr., of Dowda & Fields, P. A., Palatka, for appellant.
    Jim Smith, Atty. Gen., and William D. Townsend, Asst. Atty. Gen., Tallahassee, for appellee, Department of Revenue, State of Florida.
    B. Thomas Whitefield and Douglas H. Morford of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee, Triangle Refineries, Inc.
   MCDONALD, PARKER LEE, Associate Judge.

Appellant seeks a review of a summary judgment in which the trial judge cancelled a tax deed she had received from the Clerk of Court in Putnam County. This judgment followed a complaint filed-by Appellee Triangle Refiners, Inc. in which the Department of Revenue, State of Florida, intervened. These appellees contend that they were lienholders and therefore the Clerk must notify them by mail that an application for tax deed had been made. Section 197.256, Florida Statutes (1975).

Triangle claims to be a lienholder by virtue of a judgment secured against one Glis-son Oil Company. The judgment was recorded on September 17,1973. The Department of Revenue recorded a warrant for unpaid taxes against General Oil Company on January 15, 1973.

There is no issue that neither Triangle nor the Department of Revenue were mailed a notice of the application for the tax deed. Neither is it claimed that either of these parties or lienholders made application to the Clerk for notice.

Since the rights of citizens are involved, our courts have stated that notice requirements must be strictly complied with to the owners. Montgomery v. Gibson, 69 So.2d 305 (Fla.1954); Ozark Corp. v. Pattishall, 135 Fla. 610, 185 So. 333 (1938); Alper v. LaFrancis, 155 So.2d 405 (Fla.2d DCA 1963). It is less clear that this is true to lienholders whose interest is not clearly visible. Insofar as we can find from the record, neither of these parties furnished anyone with a description of land in which they claim a lien. Triangle’s lien exists by virtue of recording a judgment; Section 55.10, Florida Statutes (1973). The Department’s lien exists by virtue of recording a warrant. It would be an unreasonable interpretation of Section 197.256, Florida Statutes (1975) to hold that under the circumstances these parties are lienholders of record of the property that would vitiate a tax deed because they were not mailed notice.

Another problem exists. There is no valid evidence in the record to support the allegation that Triangle’s judgment debtor owned the land in question at, or any time subsequent, to the recording of the judgment. There is at least an issue of fact on that. Likewise, there is an issue of fact of whether the Department of Revenue’s debt- or owned the land at the critical times, and whether or not the Department had conveyed any interest it may have had.

The summary judgment is reversed and this cause remanded for . further proceedings.

DAUKSCH, C. J., and CROSS, J., concur.