author: DANIEL S. PEARSON, Judge.

text:
    Thomas J. VILTZ, Appellant, v. Anna Maria Cerbini VILTZ, Appellee.
    No. 79-2198.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Susan J. Cole, Miami, for appellant.
    Barranco, Darlson, Daniel & Bluestein and Steven Kellough, Miami, for appellee.
    Before BARKDULL, HUBBART and PEARSON, DANIEL, JJ.
   DANIEL S. PEARSON, Judge.

In 1978, the trial court entered a judgment awarding Anna Viltz, the mother, custody of Laila Viltz, the then three-year-old daughter of the parties. The judgment prohibited the mother from removing the child from the United States in the absence of a court order. A year later Anna sought and obtained such an order, from which Thomas Viltz appeals.

The father’s appeal makes two contentions. He says (1) that the removal of the child from the United States would render his right of reasonable visitation illusory and effectively deprive him of his natural rights as a father; and (2) that the removal will deprive the child (as the parents, a citizen of the United States) of her birthright to be raised and educated in the United States.

The impediment to the first prong of the father's appeal is that the father raised no objection to the provision of the order allowing the mother to leave the United States with the child. Indeed, the record fairly reflects that he and his counsel acquiesced in this provision. We do not reach the merits of his first contention, since the issue was not properly preserved below. Hatfield v. Hatfield, 384 So.2d 889 (Fla. 3d DCA 1980); Commodore Plaza at Century21, Etc. v. Cohen, 350 So.2d 502 (Fla. 3d DCA 1977); Karl v. David Ritter, Sportser-vice, Inc., 164 So.2d 23 (Fla. 3d DCA 1964); Collins v. Farley, 147 So.2d 593 (Fla. 3d DCA 1962).

We must, however, address his second contention that the rights of the child are being violated by the trial court’s order. Since an agreement between the parties respecting the custody and maintenance of a child cannot bind a court, Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933); Siegel v. Zimmerman, 319 So.2d 187 (Fla. 3d DCA 1975); Eaton v. Eaton, 238 So.2d 166 (Fla. 4th DCA 1970), a fortiori, the father’s failure to object cannot constitute a waiver of the rights of the child.

Faced with a dearth of authority, the father relies upon O’Shea v. Brennan, 88 Misc.2d 233, 387 N.Y.S.2d 212 (Sup.Ct. 1976), for the proposition that an order which permits a parent-custodian to take up residence in another country with a child who is a citizen of the United States is, per se, not in the best interests of the child in that it deprives the child of the right to be raised and educated in the United States. We do not agree that O’Shea stands for this proposition, but, if arguendo, it does, we are not prepared to adopt it. In the present case the trial court had before it substantial evidence from which it could find that it was in the child’s best interest to permit the mother to move with the child outside the United States. The trial court is in the best position to make this judgment, and we will not disturb its finding. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Kern v. Kern, 333 So.2d 17 (Fla.1976); Barnhill v. Barnhill, 353 So.2d 923 (Fla. 4th DCA 1978); O’Connor v. O’Connor, 347 So.2d 438 (Fla. 3d DCA 1977).

Affirmed.

      . The order, in pertinent part, gave the mother the right to remove the child from the confines of the United States. It was conditioned upon her returning the child, at her expense, to the father in the United States for two months of visitation every summer and posting a cash bond to cover any costs which might be incurred if she failed to comply with the order. The order further suspended the father’s obligation to pay child support while the child was out of the country.

      . In O’Shea, the court found that the permanent removal of the child to Australia by the remarried mother would effectively prevent visitation by the father and a denial of a continued relationship with the father would not be, under all circumstances, in the best interests of the child.

      . The record reflects that the mother was going to Venezuela, where her family lived and where the parties and the child had previously lived for two years. The mother expressed a willingness for the father to come there to visit in addition to the summer visitation in the United States. The suspension of child support payments would provide the father with additional wherewithal for the costs of such travel. The move was not intended to be permanent. Significantly, the mother’s older child by a prior marriage who had lived for some years in Venezuela was then being educated in the United States.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. John H. DALY and Douglas Daly, Appellees.
    No. 79-66.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.
    William R. Hussey, Fort Lauderdale, for appellant.
    Don Lacy and Philip S. Anderson, Fort Lauderdale, co-counsel for appellees.
   GLICKSTEIN, Judge.

This is a timely appeal from a final judgment awarding personal injury protection benefits under the Florida Automobile Reparations Reform Act, Sections 627.730-627.-741, Florida Statutes (1977). We affirm.

The record discloses that on September 23,1977, John H. Daly was insured by United States Fidelity & Guaranty Company. The insurance policy provided personal injury protection benefits for the named insured’s relatives who resided in the same household, including Mr. Daly’s son, Douglas.

On the date in question Douglas was a passenger in a pickup truck owned by Clement’s Pest Control. The truck was not primarily used in Mr. Daly’s business and at the time of Douglas’ injury, was being used to transport a mattress and other furnishings from one location to another. Douglas was in the back of the truck holding down the mattress. As the truck picked up speed, the wind velocity accelerated and Douglas and the mattress were lifted by the wind out of the truck onto the roadway. Douglas was injured as a result of his body coming into contact with the surface of the roadway.

Sections 627.736(1) and 627.736(4)(d)(l) and (3), Florida Statutes (1977), govern the disposition of this appeal. The former Section provides for the payment of personal injury protection benefits for bodily injury “arising out of the ownership, maintenance or use of a motor vehicle.” The latter provides benefits if one is injured “while occupying a motor vehicle” or “if the injury is caused by physical contact with a motor vehicle.” We have previously held that Sections 627.736(4)(d)(l) and (3) must be read in conjunction with Section 627.736(1). Stonewall Insurance Company v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979).

There is no question that the injury arose out of the use of the pickup truck,

which was being used for the specific purpose of transporting the mattress and other items. The causal connection here was the same as that in National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971), where the plaintiff, while a passenger, was bitten by a watchdog being transported from a residence to a place of business.

The next issue to be considered is the applicability of Sections 627.736(4)(d)(l) and (3), Florida Statutes. While there is no evidence that the injury was caused by physical contact with a motor vehicle, we find that Douglas was “occupying” the pickup truck when he was injured. It is our opinion that when one is occupying a vehicle at the moment there is an accidental, involuntary ejection therefrom, the occupancy should be extended to include injuries incurred by reason of the ejection. That is precisely what occurred.

While we are unable to cite any prior decision which is directly in point with our view of “occupying,” there is ample authority for extending occupancy beyond physical presence in the vehicle in voluntary self-removal or alighting cases. Industrial Fire and Casualty Insurance Company v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976); Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W.2d 896 (1975); Stoddard v. “Aid” Insurance Co. (Mutual), 97 Idaho 508, 547 P.2d 1113 (1976); Nelson v. Iowa Mutual Insurance Company, 163 Mont. 82, 515 P.2d 362 (1973); Whitmire v. Nationwide Mutual Insurance Company, 254 S.C. 184, 174 S.E.2d 391 (1970). See also, Annot, 42 A.L.R.3d 501 (1972); 19 A.L.R.2d 513 (1951).

It seems to be an illogical interpretation of Sections 627.736(4)(d)(l) and (3) to afford the protection of occupancy to one who is alighting but has left the vehicle and to deny it to another whose ejection from the vehicle has been involuntary and accidental.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.


author: HURLEY, Judge.

text:
    A. B. L. REALTY CORP., Benedetto Nuzzo, Leon Goldapple, and Stephen F. Kessler, Appellants, v. Samuel J. COHL and Rose Cohl, his wife, Appellees.
    No. 79-974.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.

      Stephen F. Kessler of Moore, Kessler, Roth & Beckerman, Miami, for appellants.
    Michael B. Solomon of Klein, Oshinsky & Solomon, Hallandale, for appellees.
   HURLEY, Judge.

By this interlocutory appeal an out-of-state corporate defendant and two non-resident individual defendants contest an order finding them subject to Florida’s long-arm jurisdiction. We affirm in part and reverse in part.

The facts giving rise to this appeal are as follows. Samuel and Rose Cohl, residents of Michigan, contracted with A.B.L. Realty Corp., a New York corporation, for the purchase of a condominium residence located in Broward County, Florida. The deposit receipt contract apparently was signed by the Cohls in Michigan and by A.B.L. Realty Corp.’s president and secretary in New York. Each party retained a Florida lawyer and it seems that only the lawyers were present at the closing which was conducted in Miami Beach. As part of the closing process, A.B.L. Realty Corp., tendered a warranty deed and an affidavit of “no-lien” signed by Benedetto Nuzzo, the president of A.B.L. In part the affidavit stated:

That the . . property is free and clear of all liens, taxes, encumbrances and claims of every kind, nature and description whatsoever, .
That this affidavit is made for the purpose of inducing Samuel J. Cohl and Rose Cohl, his wife, to purchase said property from affiant/s.

Sometime after the closing, the Cohls learned that approximately $1,741.00 was due for past maintenance, taxes and land lease rents, all of which was incurred prior to the closing date. As a result of these charges, a lien was placed against the Cohls’ apartment.

The Cohls filed suit in the Seventeenth Judicial Circuit of Florida. Service of process was obtained by serving the Secretary of State pursuant to Section 48.181, Florida Statutes (1979). Thereafter, A.B.L. Realty Corp., Benedetto Nuzzo and Leon Goldapple filed a special appearance for the purpose of contesting the court’s jurisdiction over their persons. The trial court denied the motion as to all defendants and this appeal ensued.

Before moving to the main issue, it should be noted that plaintiffs elected to proceed under Section 48.181 as opposed to Section 48.193. Section 48.181 specifically deals with non-residents who engage in or carry on a business or business venture in the state. Section 48.193, on the other hand, in addition to listing the foregoing business activity, specifies other conduct, e. g., the commission of a tort within the state, which will also subject non-residents to the jurisdiction of Florida courts. Of particular significance in this case is the fact that the statutes provide for different methods of service of process. Section 48.-181 holds that certain enumerated conduct

. constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.

Section 48.193(2) holds that:

Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s.48.194. The service shall have the same effect as if it had been personally served within this state.

In turn, Section 48.194 provides:

Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.

It is readily apparent that Sections 48.181 and 48.193 provide different methods for acquiring personal jurisdiction over non-residents. Section 48.181 permits process to be served upon the Secretary of State, while 48.193 requires process to be served in the usual manner upon an individual, albeit out of state.

The allegations in the complaint suggest that plaintiffs might have proceeded under either statute. However, the record discloses that all three defendants were served by substituted service of process through the office of the Secretary of State. Thus, we limit our review to the perspective of Section 48.181 and look to see whether plaintiffs have shown that defendants carried on or engaged in a business or business venture within the state.

One further point of clarification: despite the clear and consistent holdings of a substantial line of cases, defendants chose not to file affidavits or other verified proofs in opposition to the jurisdictional allegations in plaintiffs’ complaint. We therefore accept all the plaintiffs’ allegations as true and center our attention on whether these allegations contain sufficient jurisdictional facts to obtain personal jurisdiction over all or any of the defendants.

To successfully employ Section 48.181, plaintiffs must show that defendants operated, conducted, engaged in, or carried on a business or business venture in this state. As will be seen, there is a significant difference between a “business” and a “business venture”. The latter may be established by showing a lesser involvement than would be required to prove the former. Lomas & Nettleton Financial Corp. v. All Coverage Underwriters, Inc., 200 So.2d 564 (Fla. 4th . DCA 1967). This distinction was highlighted by the court in State ex rel. Weber v. Register, 67 So.2d 619, 620 (Fla.1953):

There is a vast difference between the words “a business” and the words “business venture” as used in Section 47.16, [the predecessor to Section 48.181], supra. One may engage in a “business venture” without operating, conducting, engaging in or carrying on a “business.”

In Weber, supra, the court found that out-of-state owners of a Florida citrus grove became subject to the jurisdiction of the Florida courts by virtue of the owners’ purchase and subsequent listing of the property for sale. The court noted that,

. the allegations of the complaint filed by Mr. Driver demonstrate clearly that the purchase of the property and the subsequent listing of the same for sale amounted to engaging in a “business venture” as contemplated by our statute.
The listing of the grove for sale is proof of the fact that the purchase thereof was a “business venture.” Moreover, the act of listing the property for sale amounted to a transaction “connected with or incidental to” the “business venture” which the Webers initiated when they acquired the grove. Id. at 620.

Mr. Justice Drew dissented in Weber, but added this caveat:

It is my view that if the petitioners had been engaged in the business of buying and selling real estate or citrus groves, the transaction or conduct, which is the very basis of the action, would have been incidental to such business or business venture. Id. at 626.

Several cases since Weber have helped to refine the scope of its application. James v. Kush, 157 So.2d 203 (Fla. 2d DCA 1963), for example, concluded that mere ownership of Florida property was not enough to invoke the long-arm statute. Toffel v. Baugher, 125 So.2d 321 (Fla. 2d DCA 1960), cert. discharged, 133 So.2d 420 (Fla.1961), held that the sale of Florida real estate by out-of-state owners who had inherited the property upon the death of their father, did not subject them to long-arm jurisdiction. The Toffei court distinguished its holding from Weber in this fashion:

The appellees inherited the property in Florida and did not purchase it and list it for resale, which distinguishes this case from the purview of the majority opinion of State ex rel. Weber v. Register, supra. Neither can we say that there was sufficient “minimum contacts” by the appel-lees within the State of Florida to bring this case under Section 47.16, Florida Statutes, F.S.A. 125 So.2d at 325.

Similarly, Hayes v. Greenwald, 149 So.2d 586 (Fla. 3d DCA 1963) disallowed the use of the long-arm statute to obtain personal jurisdiction over a couple who had sold their Florida homestead and moved to Georgia. The decision was based on a finding that

The isolated action of selling a home, by one who moves to another state, does not amount to a business venture within the meaning and intent of Section 47.16(1) Fla.Stat., F.S.A. 149 So.2d at 587.

See also, Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA), cert. denied, 283 So.2d 105 (Fla.1973).

On the other hand, Lustig v. Feinberg, 257 So.2d 299 (Fla. 1st DCA 1972), which contained allegations of a business venture to purchase and lease a Florida motel, was found to be directly controlled by the holding in Weber, supra. So, too, with O’Connell v. Loach, 203 So.2d 350 (Fla. 2d DCA 1967), where the out-of-state owners’ purchase and sale of multiple residential building sites was deemed sufficient business activity to subject them to long-arm jurisdiction. The court in Wm. E. Strasser Constr. Corp. v. Linn, 97 So.2d 458 (Fla. 1957), found that an out-of-state couple, acting through an out-of-state agent, by entering into a contract to construct a three-unit motel on property which they owned in Dade County, had taken the first steps in a business venture and thus were subject to the long-arm jurisdiction of the court.

Throughout these cases there appears the recurrent theme that each case must be judged on its own facts. We cannot resort to a mechanical test, but must judge the quality and nature of the activity involved. Hyco Mfg. Co. v. Rotex Int’l Corp., 355 So.2d 471 (Fla. 3d DCA 1978). The rule was best put in Horace v. American Nat’l Bank and Trust Co., 251 So.2d 33, 34 (Fla. 4th DCA 1971), referring to the holding in Strasser, supra: . . . [E]ach case of this type must be resolved on the basis of the facts revealed by the record in the particular case; while general principles may be said to prevail, the application of these principles will be governed by the factual situation presented by the particular record.

The Horace court also cited Strasser, supra, for the proposition that the “minimum contacts” necessary to give rise to doing business or engaging in a business venture may consist of a single act with the intention of thereby initiating a series of acts. The court further stated that the three criteria to be used for determining the outer limits of an in personam jurisdiction based on a single act are: (1) the defendant must have purposely availed himself of the privilege of acting in the forum state or causing a consequence in the forum state; (2) the cause of action must derive from the defendant’s activities in the forum state; (3) the acts or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Applying these principles to the case at bar, we are persuaded that plaintiffs have met their burden of showing that the defendant, A.B.L. Realty Corp., engaged in a business venture in the State of Florida. The very name of the corporate defendant implies that it is a business entity which derives profit from dealing in real estate. This single fact distinguishes the case from Toffel and Hayes, supra. A.B.L.’s acquisition and subsequent sale of the condominium unit evidence a voluntary intent to act within the State of Florida and constitute sufficient “minimum contacts” with Florida to place it squarely within the Weber, Strasser, and Lustig, supra, line of authority. The location of the property coupled with the presence of A.B.L.’s attorney-agent at the closing justify resort to Florida courts to insure the integrity of the transfer.

Turning now to the defendants Nuz-zo and Goldapple, we note that plaintiffs’ complaint contains no allegation that either party, individually, as opposed to acting in their corporate capacities, engaged in a business or a business venture in Florida. Rather, plaintiffs contend that Nuzzo as president of the corporation, and Goldap-ple, as secretary of the corporation, fraudulently misrepresented certain information to induce the sale. Arguably, such an allegation might subject an individual to long-arm jurisdiction under Section 48.193, Florida Statutes (1979), (the commission of the tort of fraudulent misrepresentation within the state), but plaintiffs chose not to pursue this path. Thus, we too confine our inquiry to Section 48.181 and look for allegations that either party individually engaged in a business or business venture within the state. Finding none, we affirm the order as it pertains to the defendant, A.B.L. Realty Corp., and reverse as it pertains to the defendants Nuzzo and Goldapple.

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent herewith.

GLICKSTEIN and HERSEY, JJ., concur.

      . The critical portions of the complaint are contained in paragraphs 8, 9 and 11, which are set forth below.
      8. That on or about August 31, 1977, the Plaintiffs and Defendants, A.B.L. REALTY CORP., BENEDETTO NUZZO and LEON GOLDAPPLE, individually and through their agent, STEPHEN F. KESSLER, ES- . QUIRE, did complete the purchase of the real property, said closing being held in Miami Beach, Florida, and that the Defendants, A.B.L. REALTY CORP., BENE-DETTO NUZZO and LEON GOLDAPPLE, as officers, and/or individually and/or as agent did execute a Warrant Deed, Closing Statement, Resolution for Sale of the Corporation, A.B.L. REALTY CORP., and a Non-Lien Affidavit. That these documents were executed and delivered to Plaintiffs in consideration of Plaintiffs payment of the purchase price as set forth in the Deposit Receipt. Copies of the Warranty Deed, Closing Statement, Resolution for Sale of the Corporation, A.B.L. REALTY CORP., and Non-Lien Affidavit are attached hereto and made part hereof as Plaintiff’s Exhibits “2”, “3”, “4” and “5”.
      9. That subsequently to the Closing date, the Plaintiffs were notified that there were monies due for maintenance, taxes, and land lease rentals to the Quadomain Condominium Association. That the said amount is in the sum of $1,741.00 plus interest, and which said amount became due and owing before August 31, 1977, when the property was transferred from the Defendants to Plaintiffs. Attached hereto and made part hereof is a copy of the Statement showing the amount which is due and owing to the Condominium Association as Plaintiff’s Exhibit “6”.
      11. That the Defendants, A.B.L. REALTY CORP., BENEDETTO NUZZO and LEON GOLDAPPLE did represent to the Plaintiffs that there were no liens, claims or encumbrances upon the real property and that the Defendants, A.B.L. REALTY CORP., BENEDETTO NUZZO and LEON GOLDAPPLE did execute an Affidavit for the purpose of inducing the Plaintiffs to purchase the property. The Defendants did know prior to the execution of this Affidavit that there were monies due and owing to the Condominium Association and that this Affidavit was untrue and fraudulent.

      . Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla. 1977); Compañía Anónima Simantob v. Bank of America, Int’l, 373 So.2d 68 (Fla. 3d DCA 1979); Pace Carpet Mills, Inc. v. Life Carpet and Tile Co., 365 So.2d 445 (Fla. 4th DCA 1978); Hyco Mfg. Co. v. RoteInt’l Corp., 355 So.2d 471 (Fla. 3d DCA 1978); Dublin Co. v. Peninsular Supply Co., 309 So.2d 207 (Fla. 4th DCA 1975); Atlas Aircraft Corp. v. Buckingham, 302 So.2d 163 (Fla. 4th DCA 1974).

      . Plaintiffs in paragraph 11 allege that both Nuzzo and Goldapple represented that there were no liens, claims or encumbrances upon the property. The “no-lien” affidavit, however, which was attached to the complaint, was signed only by Nuzzo. Such an inconsistency calls into play the holding in Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA, cert. denied, 252 So.2d 797 (Flu.1971), that where there is an inconsistency between the general allegations of material fact in the complaint and the specific facts revealed by an exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable. See also, Schweitzer v. Seaman, 383 So.2d 1175 (Fla. 4th DCA 1980).


author: COBB, Judge.

text:
    In re Determination of Homestead of Aaron CANADA. John O. LONG, Appellant, v. Thelma Joyce CAVAGE, Appellee.
    No. 79-913/T4-513.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.
    Gary W. Udouj, Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
    No appearance, for appellee.
   COBB, Judge.

Aaron Canada was the sole owner of ten acres of property in Orange County. On March 20,1967, he conveyed the property to himself and to his wife, Vivian, who joined in the deed, which recited a consideration from her of Ten Dollars. The purpose was to create an estate by the entirety. On July 28, 1967, Vivian Canada quit-claimed her interest in the ten acres back to her husband, who did not join in the execution of the quit-claim deed. On February 26, 1969, Aaron Canada died, survived by Vivian and a daughter, Thelma Cavage, the appellee herein, and a son, Morgan Canada. On June 10,1975, Vivian Canada executed a warranty deed to the appellant, John 0. Long, which purported to convey a fee simple interest in the property. Thelma Ca-vage filed a petition for determination of the homestead status of the property. The trial court entered a summary judgment holding that the attempted inter-spousal alienation of the property by the March, 1967, deed was void because violative of the Florida Constitution and statutes then in effect. That judgment, which was based solely on the affidavit of appellee, is challenged on this appeal.

In construing the applicable provisions of the 1885 Constitution, Florida courts consistently held that a conveyance of homestead realty by the husband to the wife, in the absence of consideration, was impermissible. Reed v. Fain, 145 So.2d 858 (Fla.1962); Norman v. Kannon, 133 Fla. 710, 182 So. 903 (1938); Church v. Lee, 102 Fla. 478, 136 So. 242 (1931). The question is whether or not the recited consideration of “Ten Dollars and other good and valuable consideration” satisfies the requirement for consideration.

In the case of Daniels v. Mercer, 105 Fla. 362, 141 So. 189 (1932), the Florida Supreme Court sustained the alienation of a homestead to some of the homestead owners’ children, to the exclusion of others, upon a finding that the conveyance was made in good faith for an appropriate consideration. In that case, the deed recited that it was “for and in consideration of the sum of one dollar and other valuable considerations to them in hand paid, the receipt whereof is hereby acknowledged.” This statement of a valuable consideration was challenged by the complaint, and the court found that “the complainants did not sustain their allegation that ‘the grantees in said deed did not pay any consideration therefor’.” The court then found that there was substantial evidence that a valuable consideration was paid, and the alienation was upheld.

In the instant case, the evidence before the trial court was the affidavit of Thelma Joyce Cavage, which read as follows:

1. That she is the daughter of AARON CANADA and has personal knowledge of the facte stated herein.
2. That AARON CANADA died on February 26, 1969, and was survived by his wife, VIVIAN ELIZABETH CANADA, his daughter, THELMA JOYCE CA-VAGE, and his son, MORGAN CLINTON CANADA.
3. That from at least 1966 until the time of his death, AARON CANADA resided permanently on the property in question with his wife, VIVIAN ELIZABETH CANADA, and considered said property to be his home.
4. That during his life, AARON CANADA was the head of his family and recognized as the family member in charge.
5. That AARON CANADA, at the time of his death, was the owner of the property in question and that said property is located in rural Orange County, Florida.

It is obvious that there was no proof before the trial court that the March, 1967 deed was unsupported by actual consideration. In the absence of such proof, the recited consideration in the deed is presumptively correct. See Wise v. Wise, 134 Fla. 553, 184 So. 91 (1938). Accordingly, the summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


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

text:
    PANTORI, INC., a Florida Corporation, Petitioner, v. Owen STEPHENSON et al. Respondents.
    No. 80-251.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.

      Wallace Dunn, Dunnellon, for petitioner.
    Donald Bradshaw, Inverness, for respondents.
   FRANK D. UPCHURCH, Jr., J.

Pantori, Inc. petitions for a writ of certio-rari to review an order of the Circuit Court for Citrus County holding that the court did not have jurisdiction to disqualify an attorney from representing a client.

We have jurisdiction to consider the petition pursuant to article V, section 4(b)(3), Florida Constitution. In the order appealed, the trial court recited that article XI of the Integration Rules of the Florida Bar had vested the Supreme Court of Florida with exclusive jurisdiction over all persons admitted to practice law in this state. Pan-tori had filed a motion to compel withdrawal of respondents’ attorneys, Donald J. Bradshaw and T. Richard Hagin, contending these same attorneys had previously been employed by Pantori in a similar action involving the same subject matter.

Article V, section 15 of the Florida Constitution provides:

The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

Florida Bar Integration Rule, article XI, preamble, establishes the mechanisms for the administration of this jurisdiction. Rule 11.03, Florida Bar Integration Rule, article XI, provides that:

The jurisdiction of the Supreme Court shall be administered in the manner hereinafter stated. The following entities are hereby designated as agencies of the Supreme Court for this purpose and with the following responsibilities, jurisdiction, and powers .

The rule lists the Board of Governors of the Florida Bar, Grievance Committees, Referees, Staff Counsel and Bar Counsel as agencies empowered to administer the supreme court’s disciplinary power. Circuit and appellate courts are not included. However, Rule 11.14, Florida Bar Integration Rule, article XI, provides that a judge of the circuit court or district court of appeal upon receiving knowledge of alleged unprofessional conduct may direct the state attorney to make a motion in the name of the State of Florida to discipline the attorney. In addition, Canon 3(B)3, Florida Bar Code of Judicial Conduct, provides that a judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. The commentary to Canon 3B(3) notes that “[disciplinary measures may include reporting a lawyer’s misconduct to an appropriate disciplinary body.” By inference, the court itself is not the “appropriate disciplinary body.”

Thus, it appears that the supreme court alone has the power to discipline attorneys by the grant of exclusive jurisdiction. Florida Bar v. McCain, 330 So.2d 712 (Fla.1976); Application of Harper, 84 So.2d 700 (Fla.1956). The circuit and district courts have been ousted of whatever inherent disciplinary power over attorneys they may have previously held. State v. Revels, 109 So.2d 1 (Fla.1959). Therefore, these courts now have only such power as has been provided in Rule 11.14. See Florida Bar v. Tannenbaum, 240 So.2d 302 (Fla. 1970). The rule does not specifically provide for discipline by acting on a motion by opposing counsel.

The propriety of such a motion was accepted in Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979) and Andrews v. Allstate Insurance Co., 366 So.2d 462 (Fla. 4th DCA 1978), although neither case considered determinative the jurisdictional point which the trial court in the instant case addressed. If removal of an attorney is considered to be discipline, then respondents’ connection is correct and the trial court had no jurisdiction to remove counsel. The basic purpose of the trial court is to afford litigants an impartial forum in which their complaints and defenses may be presented, heard and decided with fairness. This purpose transcends the right of attorneys to be controlled in their conduct by the supreme court. It is unquestioned that a trial court may control an attorney for contemptuous conduct. Welch v. State, 359 So.2d 508 (Fla. 1st DCA 1978); Williams v. State, 283 So.2d 585 (Fla. 1st DCA 1973). It may deny an attorney leave to withdraw from a case. See Fisher v. State, 248 So.2d 479 (Fla. 1971). Therefore, a trial court may decide, after consideration of a motion alleging sufficient facts which, if true, would warrant removal of opposing counsel, that removal is mandated. If those allegations also constitute a breach of the Florida Bar Code of Professional Responsibility, the trial judge should then initiate those procedures which have been established to discipline attorneys. The discipline or punishment of the attorney will then be decided, not by the trial court, but by the supreme court after the appropriate procedures have been followed.

Petitioner has alleged that counsel for respondents formerly represented it in matters involving the same subject matter and confidential information so obtained would be useful to respondents and detrimental to petitioner. These allegations were supported by the affidavit of the president of Pantori, Inc. The affidavit included an invoice from a law firm of which Mr. Bradshaw was purportedly a member and checks from petitioner in payment. The trial court should have conducted a hearing on the merits of the motion and removed respondents’ attorneys if it determined their continued representation would breach petitioner’s confidences.

The purpose of the hearing is not to determine whether there has been a breach of the Code of Professional Responsibility for which the attorney may be disciplined but whether, because of such breach, one party has an unfair advantage over the other which can only be eliminated by removing the attorney. We therefore conclude that the refusal of the trial court to consider the merits of the motion was a departure from the essential requirements of law.

Accordingly, certiorari is granted, the order quashed and the cause remanded for further proceedings consistent with this opinion.

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

      . Florida Bar Code of Judicial Conduct, Canon 3:
      (B) Administrative Responsibilities
      (3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.


author: OTT, Judge.

text:
    TRAVELERS INDEMNITY COMPANY, a Foreign Corporation, Appellant, v. Robert F. CHISHOLM, Appellee.
    No. 79-715.
    District Court of Appeal of Florida, Second District.
    July 2, 1980.
    Richard C. Stoneman of Stoneman, Matt-son & McGrady, St. Petersburg, for appellant.
    Barry M. Salzman of Chambers & Salzman, P. A., St. Petersburg, for appellee.
   OTT, Judge.

Appellant, Travelers Indemnity Company, appeals from an order awarding attorney’s fees to its insured, appellee Robert Chisholm. We reverse.

In March 1977, appellee filed a complaint against appellant seeking to establish uninsured motorist benefits under the policy equal to the liability limits of 25/50. Appellant defended on the ground that appel-lee had rejected UMC limits equal to the liability limits and, instead, had elected UMC limits of 10/20. On the date the case came on for nonjury trial, the parties stipulated that the policy covered two vehicles and that the UMC limits — as finally determined — were “stackable.” The stipulation specified that the sole issue to be tried concerned whether or not uninsured motorist limits equal to the liability limits had been “knowingly rejected” in favor of the lower limits of 10/20 specified in the application and the policy. On this issue partial final judgment was entered in favor of the appellant. The court reserved jurisdiction “for further proceedings on the issue of damages.”

Counsel for appellant thereafter repeatedly offered the additional $10,000 available by virtue of the stacking claim. Appellee consistently rejected the offer during the pendency of his motion for rehearing. On November 17, appellee’s motion for rehearing was denied, and he began proceeding toward appeal. In correspondence dated December 6, 1978, appellant’s counsel repeated the settlement offer, stating, “We are not foreclosing the possibility of negotiations of your attorney’s fee, as that’s part of the settlement.” Near Christmas, appellee executed an unconditional release and was paid $10,000.

Thereafter, appellee filed a motion for attorney’s fees in the original proceeding. The trial court entered an order awarding appellee attorney’s fees based on the existence of a dispute between the parties.

In an action on an insurance policy, the jurisdiction of the trial court to require the insurer to pay a reasonable attorney’s fee for the insured exists only as provided by statute. Such a fee award pursuant to statute is recognized as a penalty provision. American National Insurance Co. v. de Cardenas, 181 So.2d 359 (Fla. 3d DCA 1965). Section 627.428(1), Fla.Stat. (1979), provides in pertinent part:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured . . . the trial court . shall adjudge [and] decree against the insurer and in favor of the insured . a reasonable sum as fees or compensation for the insured’s . . . attorney prosecuting the suit in which the recovery is had.

This statute must be strictly construed. American Bankers Insurance Co. v. Benson, 254 So.2d 851 (Fla. 3d DCA 1971).

Under the above statute, the jurisdiction of the trial court to award attorney’s fees to an insured is dependent upon conditions imposed by the statute. The paramount condition is the entry of a judgment against the insurer and in favor of the insured. In the instant case appellee never recovered a favorable judgment or decree against the appellant. Therefore the trial court had no legal basis for its award of attorney’s fees. Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla. 1973); Bankers Multiple Line Insurance Co. v. Blanton, 352 So.2d 81 (Fla. 4th DCA 1977); American Home Assurance Co. v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977); Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974).

Appellee argues that the holding in Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974) is controlling. This was a suit on a fire insurance policy. In that case the court upheld the insured’s entitlement to attorney’s fees without the necessity of a judgment being entered against the insurer. The insurer had steadfastly refused to make payment under the policy for over three months after it was completely satisfied as to coverage together with the amount and proof of loss. The policy required payment within 60 days after proof of loss. The insured filed suit to compel payment of the proceeds. Thereafter, the insurer paid up in accordance with the insured’s suit. We find Cincinnati Insurance clearly distinguishable in that there was a genuine dispute over payment that was only resolved in the insured’s favor after he brought suit. In the instant case, there was never any dispute as to the stacking claim. The only real dispute was over what were the limits of uninsured motorist coverage. That issue was resolved against appellee.

Accordingly, the order appealed from is reversed.

SCHEB, C. J., and GRIMES, J., concur.

      . Liability coverage of the first $10,000 was available from the third party tort feasor.

      . We express no opinion on whether the uncon- • ditional release precluded any claim for attorney’s fees since that is not an issue herein.


author: DANAHY, Judge.

text:
    Alexander SIMONS, Petitioner, v. Elfriede JORG a/k/a Elfriede Jorg Simons, Respondent.
    No. 80-228.
    District Court of Appeal of Florida, Second District.
    July 2, 1980.
    John T. Allen, Jr., P. A., St. Petersburg, and Joseph D. Farish, Jr. of Farish & Farish, West Palm Beach, for petitioner.
    Dede Meros of Meros, Coit, Edman, Me-ros, Smith & Meros, P. A., St. Petersburg, for respondent.
   DANAHY, Judge.

The question presented by this petition for certiorari is whether the lower court departed from the essential requirements of law when it entered a discovery order compelling the putative father in a paternity suit to submit to the relatively recently developed Human Leukocyte Antigens (HLA) blood test. We find no error and deny the petition.

After petitioner filed an answer denying paternity, respondent moved to compel petitioner to submit to a blood test, alleging awareness of a “new type of blood test which can usually conclusively determine paternity.” After hearing argument of counsel only, the trial court granted the motion.

Petitioner then sought certiorari review in this court of the order which compelled the blood test. This court granted certiora-ri and quashed the order, on the premise that discovery is permissible only on matters reasonably calculated to lead to admissible evidence, and nothing in the record indicated that the HLA test results would be admissible or even lead to admissible evidence. Simons v. Jorg, 375 So.2d 288 (Fla.2d DCA 1979).

Subsequently, respondent filed another motion to compel petitioner to submit to HLA testing. At a hearing on the motion, respondent called Dr. Larry Davis, a pathologist, who testified substantially as follows:

The HLA test is not the typical ABO blood grouping test which is in general use to prove nonpaternity. The HLA testing is a more sophisticated procedure which involves tissue typing of the white blood cells and results in far higher probabilities of paternity than those yielded by any of the traditional blood grouping tests.. With HLA testing, if a male is not excluded as the father, the probability of his being the father is usually over 90%. In 16% of the cases, the probability exceeds 99%. These probability figures can be increased substantially when HLA testing is combined with red cell antigen testing.

The trial court thereupon found that the test was one covered by the discovery rule [Florida Rules of Civil Procedure 1.360(a)] and that, based on the undisputed evidence of its reliability and accuracy, respondent had shown good cause to compel the petitioner to submit to the test.

Petitioner argues that the test will not result in admissible evidence, and thus discovery should not be permitted. Even if this were true, the possible inadmissibility of the test results would not be sufficient to prevent discovery. Murray Van & Storage, Inc. v. Murray, 343 So.2d 61 (Fla. 4th DCA 1977); Fla.R.Civ.P. 1.280 (bXl). Discovery is permissible with respect to any matter that is relevant to the subject matter of the pending action, where the information sought is reasonably calculated to lead to the discovery of admissible evidence. Brooks v. Owens, 97 So.2d 693 (Fla.1957). Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla.Stat. (1979). Relevant evidence is generally admissible unless its probative value is substantially outweighed by unfair prejudice. § 90.403, Fla.Stat. (1979).

Based on Dr. Davis’ uncontradicted testimony in the record before us, we hold that respondent adequately established that HLA test results may have substantial probative value and may be relevant in this action to establish paternity. The test results, if admitted in evidence, could have a tendency to prove the fact of paternity, which is the central issue in controversy in this case. Therefore, we agree with the trial court that good cause was shown to compel petitioner to submit to the blood test. At this stage of the case, we may not and do not reach the question of the admissibility of evidence of the HLA test results at trial, nor can we anticipate what weight the trier of fact would give such medical evidence, if admissible, together with other proofs which may be offered in deciding the issue of paternity.

We only decide that the trial judge correctly concluded that good cause was shown to compel petitioner to submit to HLA testing pursuant to the conditions imposed by Florida Rules of Civil Procedure 1.360(a). The petition for certiorari is denied.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . See Terasaki, Resolution By HLA Testing of 1,000 Paternity Cases Not Excluded By ABO Testing, 16 J.Fam.L. 543 (1978).

      . We note that at least two other jurisdictions considering the admissibility of HLA test results to prove paternity have concluded that such results are admissible for the purpose of proving paternity, assuming that an adequate foundation is laid. Cramer v. Morrison, 88 Cal.App.3d 873, 153 Cal.Rptr. 865 (1979); Malvasi v. Malvasi, 167 N.J.Super. 513, 401 A.2d 279 (Ch. Div. 1979).


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

text:
    Oscar V. BEDGOOD and Vernon Bedgood, Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee.
    No. 00-430.
    District Court of Appeal of Florida, First District.
    July 3, 1980.

      James C. Husbands of Nabors & Husbands, Panama City, for appellants.
    Lynn C. Higby of Isler, Higby, Brown, Smoak & Watson, Panama City, for appel-lee.
   ERVIN, Judge.

The Bedgoods challenge the trial court’s final summary judgment holding Oscar Bedgood’s 1963 Mercury was not a covered vehicle under his automobile insurance policy. They argue that although he acquired the Mercury before the effective date of the policy, the vehicle did not acquire its status as an owned automobile until after it became operable and, because its operability occurred within 30 days of the date of the insureds’ accident, coverage was afforded. We agree that genuine issues of material fact remain unresolved and so reverse and remand.

Our determination of the correctness of the trial court’s summary judgment is somewhat complicated due to the sparse record before us. The stipulated facts show only that on March 3, 1976, Oscar Bedgood purchased the Mercury, later involved in an accident while being driven by Bedgood’s son, Vernon. Following Oscar Bedgood’s acquisition of the Mercury, Hartford insured him and his 1965 Ford Falcon for the policy year beginning May 22, 1976. The Mercury was never added to the policy nor was the issuing agent ever requested to do so. Finally, title was never transferred to Bedgood’s name at the Department of Motor Vehicles, and the automobile was not operable on the public highways until August 4, 1976, four days before the accident. The basis of the Bedgoods’ claim for coverage, and the insurer’s denial of it, rests upon that clause of the policy automatically insuring newly acquired automobiles. It provides:

‘[Ojwned automobile’ means
lit # # * * #
(c) a private passenger, . . . automobile ownership of which is acquired by the named insured during the policy period, provided
>|c i|t * >k * *
(2) the company insures all private passenger, . . . automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, .

On its face the clause appears to prohibit coverage of an automobile acquired more than 30 days before the occurrence of an accident if the company was not notified by the insured of its acquisition. Were we to conclude that the 1963 Mercury was precisely that — an automobile — our inquiry would be ended, and the judgment in favor of the carrier should necessarily be sustained. The policy, however, does not explicitly define automobile, but does motor vehicle, described as “a 4-wheel self-propelled vehicle of the type required to be registered and licensed under Florida law . .” The registration and licensing requirements of Florida motor vehicles are set out under Chapter 320, which specifically includes automobile within its definition of motor vehicle. See Section 320.01(l)(a). Additionally, the policy defines an insured motor vehicle as “a motor vehicle of which the named insured is the owner and with respect to which (a) bodily injury liability and insurance of the policy applies and (b) security is required to be maintained under the Florida Automobile Reparations Reform Act, . . .” The Act requires an insurer to pay PIP benefits to certain persons occupying an owner’s vehicle provided such persons do not own unprotected motor vehicles for which security is compelled. Section 627.736{4)(d). This court has consistently held that only those motor vehicles which are required by Florida law to be registered are subject to the security requirements of the Act, and there are no registration or security requirements for motor vehicles which are neither operated over the public streets or highways of Florida nor maintained for that purpose. Staley v. Florida Farm Bureau Mut. Ins. Co., 328 So.2d 241 (Fla. 1st DCA 1976); Tapscott v. State Farm Mutual Automobile Ins. Co., 330 So.2d 475 (Fla. 1st DCA 1976); Ward v. Florida Farm Bureau Cas. Ins., 375 So.2d 898 (Fla. 1st DCA 1979); Malen v. American States Insurance Co., 376 So.2d 473 (Fla. 1st DCA 1979). Thus a vehicle previously required to be registered is excused from registration requirements, and its owner correspondingly excused from the security requirements of the Reparations Reform Act “when the owner no longer ‘maintains’ the vehicle in order to operate it on public streets and highways.” Tapscott v. State Farm Mutual Automobile Ins. Co., supra, at 477.

Clearly, if there are no security requirements for vehicles not maintained for pperation on Florida’s public streets, it would be illogical to require an owner to notify an insurance company of such a vehicle’s acquisition within 30 days thereafter since the sole purpose of such notification is simply to provide security for the acquired vehicle. And so we conclude that the word “automobile” in the automatic coverage clause, when harmonized with other provisions of the policy and Florida law, means one operated over the public streets and highways or maintained for that purpose. And, if not so used, it need not be insured.

We are not unaware that a sizable body of out-of-state cases holds that coverage of a newly-acquired automobile is not dependent upon the vehicle’s condition, but turns simply upon when it was acquired. E.g., Wisbey v. Nationwide Mutual Insurance Co., 264 Or. 600, 507 P.2d 17 (1973); Stockberger v. Meridian Mutual Insurance Co., 395 N.E.2d 1272 (Ind.App.1979) (“an automobile is an automobile . . .” Id. at 1276); Illinois National Insurance Co. v. Trainer, 1 Ill.App.3d 34, 272 N.E.2d 58 (1971); Brown v. State Farm Mutual Insurance Co., 306 S.W.2d 836 (Ky.App.1957); Providence Washington Insurance Co. v. Hawkins, 340 S.W.2d 874 (Tex.Civ.App.1960). Those cases did not, however, involve policies which, as the one before us, defined motor vehicle as one required to be licensed and registered under Florida law and to be secured and maintained under the Florida Automobile Reparations Reform Act.

Having determined that the term “automobile” is subject to the above construction, we find it impossible to glean from this sparse record whether the 1963 Mercury’s condition was such that it was maintained for operation over the public highways for a period no less than 30 days before the accident. We know only it was not operable until four days preceding the accident. Mere inoperability of the vehicle does not satisfy the test, although it is unquestionably a factor to be considered in determining whether the Mercury was a vehicle required to be secured. Other pertinent questions include the length of time of the automobile’s inoperability before the accident, see, Tapscott, supra, the extent of the vehicle’s inoperability, Malen v. American States Ins. Co., supra, whether it was placed in storage prior to its restoration to operability, Staley v. Florida Farm Bureau Ins. Co., supra, and the subjective element of whether the owner intended to maintain the vehicle on the public streets. Ward v. Florida Farm Bureau Cas. Ins., supra. For example, a jeep, not operable on the highway due to a lack of rear brakes and other major deficiencies, and intended by its owner to be used only on farmland, was held not an automobile within the automatic coverage clause. Martin v. Nationwide Mutual Fire Insurance Co., 235 So.2d 14 (Fla. 2d DCA 1970). Other cases have also recognized that vehicles needing major repairs are not automobiles within the terms of policy. See Quick v. Michigan Millers Mu tual Insurance Co., 112 Ill.App.2d 314, 250 N.E.2d 819 (2d Dist.1969); Luke v. American Family Mutual Insurance Company, 476 F.2d 1015 (8th Cir.1973). However, a vehicle requiring only minor repairs, such as the replacement of a battery, Farmers Insurance Company of Washington v. Miller, 87 Wash.2d 70, 549 P.2d 9 (1976), or a reverse gear, GEICO v. Titus, 18 Wash.App. 208, 566 P.2d 990 (1977), would not lose its status as an owned automobile.

In summarizing the various cases which construed clauses similar to that before us, the Second District Appellate Court of Illinois stated:

In those cases where the circumstances — be they the combination of the degree of disrepair of the car, the intent of the owner, or otherwise — suggest that the nonoperating condition is a mere temporary one, the courts have been inclined to find that the vehicle was an “automobile” within the terms of the policy. In those cases where such circumstances suggest either that the inoperable condition is probably permanent, or apt to be of long duration with little reasonable possibility of restoring the car to a condition where it can be driven on the roads, the courts have then tended to find that the vehicle is not an “automobile” within the terms of the policy. Quick v. Michigan Millers Mutual Insurance Co., supra, at 821.

The final summary judgment is reversed and remanded for further proceedings consistent with this opinion.

WENTWORTH, J., concurs.

ROBERT P. SMITH, Jr., J., dissenting with opinion.

ROBERT P. SMITH, Jr., J.,

dissenting:

I cannot agree that the clause automatically insuring newly acquired automobiles operates to cover Bedgood’s 1963 Mercury, which was in an accident on August 8,1976. Bedgood acquired that automobile on March 3, 1976, before the policy period began on May 22, 1976. Even if this policy renewed an earlier Hartford policy, Bed-good did not notify Hartford, “within 30 days after the date of such acquisition,” that he had acquired and wished to insure the Mercury under the Hartford policy. On those grounds, in my opinion, the trial court’s judgment for Hartford should be affirmed.

This Hartford policy specifically insured a described 1965 Ford for which a specific premium was charged, and also insured any other private passenger automobile

. ownership of which is acquired by the named insured during the policy period, provided . . . the company insures all private passenger automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile .

The purpose of this standard clause is apparent on its face. When an insurer insures all the automobiles of a named insured, and he has paid premiums for that coverage, this clause indulges the presumption that he intends, at his early convenience, to buy similar insurance for his newly acquired automobile. Therefore, in order to cover the insured from the moment he is likely to need coverage — when he takes title or delivery of his new automobile — the insurer immediately and automatically insures that automobile on the terms, limits, and conditions of the insured’s existing policy. To extend that coverage beyond 30 days from the acquisition date, the insurer requires only that the insured, “within 30 days after the date of such acquisition,” notify the insurer of the acquisition and of his election to insure the new automobile under that particular policy. For insurance beyond 30 days, in other words, the insurer wishes to know what coverage is djsired and that a premium is forthcoming.

I think two propositions are evident: First, automatic coverage is not afforded for an automobile acquired by the insured before the policy period began, for on that date he presumably chose to insure one owned automobile but not the other; and second, the parties to the contract agreed that automatic insurance afforded for a newly acquired automobile should exist only for 30 days, during which time the insured must take steps to buy any permanent insurance he desires. See Coleman v. Atlantic National Ins. Co., 166 So.2d 620 (Fla.3d DCA 1964); 12 Couch on Insurance (Second), Section 45:181 et seq.; 1 Long, Liability Insurance Section 4.08; Annot., 34 A.L.R.2d 936, 940 (1954).

I do not think it can reasonably be said that Bedgood's new Mercury was insured on August 8, 1976, despite his failure to notify Hartford within 30 days of the date of acquisition, March 3, or at any other time, that he wished to insure the Mercury under the terms of this Hartford policy. I disagree with the dicta or alternative holding in Glens Falls Ins. Co. v. Gray, 386 F.2d 520 (5th Cir.1967), suggesting that the inop-erability of a newly acquired automobile, indisputably acquired during the policy period, postponed the beginning of the 30 day notice period until the vehicle was repaired. I agree with the criticism of Glens Falls stated in Allstate Ins. Co. v. Stevens, 445 F.2d 845 (9th Cir.1971). As the trial judge so cogently said in his summary judgment in the case before us, such a construction of a policy

. would result in uncertainty in the insurance contract as a whole since, conversely, the insurance company could argue that coverage would be suspended during intermittent periods of time when a vehicle is not operable, or alternatively, the insured could argue that he would be entitled to a premium rebate for intermittent periods of time when the insured vehicle might be inoperable.

In my opinion this automatic coverage cannot reasonably be held to come into existence at the uncertain time the insured regards his new automobile as operable. As for the claim that an automobile is not an automobile until the owner puts it in operable condition, I join the Illinois appeals court which said, in Illinois National Ins. Co. v. Trainer, 1 Ill.App.3d 34, 38, 272 N.E.2d 58, 61 (1971):

The “object” purchased in Missouri and towed to Illinois by Annie was neither a surrey, a Sherman tank nor a bobsled, although it partook of certain characteristics of all three. It was a passenger automobile and no use of a collective noun, however ingenious, can change that.
The (wrecked) Corvette was “acquired” on March 23, 1962, as an automobile and no coverage was afforded since Illinois did not know of its existence until more than 30 days had expired.

See also 12 Couch, supra, Section 45:201 at p. 246-47:

The commencement of the period is not delayed by the fact that the insured does not put the new automobile into immediate use, nor by the fact that because of its condition, it cannot be put into immediate use, nor that substantial repairs and alterations are required before it may be used. Regardless of the circumstances, the period for notice is not extended by the fact that the automobile was not in operating condition until a later date.

And 1 Long, supra, Section 4.08 at p. 4-12.-2:

An automobile, although in need of repairs to make it operatable, is still an automobile as this term is ordinarily understood. When an owned automobile is repaired, the insured doesn’t acquire a new automobile; he has only repaired an automobile he owns. So after repairing it, the insured takes it out for a trial run and is involved in an accident; there is no coverage under the newly acquired provision.

I do not think decisions favoring the insured in disputes over PIP and uninsured motorist benefits should govern this case. The majority finds that Bedgood’s Mercury was automatically insured on the date of accident, five months after he acquired the automobile, on reasoning drawn from decisions awarding PIP or uninsured motorist benefits to an injured claimant notwithstanding that he owned another automobile, uninsured, at the time of his injury. The central question in those cases was this: Did claimant violate a statute requiring that he insure that collateral vehicle, and on that ground should he be denied PIP or uninsured motorist coverage in a loss not involving that vehicle? Answering, those decisions say the collateral vehicle, if inoperable or neither used nor maintained for use on the highway, didn’t require insurance; and its noninsurance is no ground to deny claimant benefits under a policy claimant or someone else did pay for. The same reasoning accounts for such decisions as Martin v. Nationwide Mut. Fire Ins. Co., 235 So.2d 14 (Fla.2d DCA 1970), and Southern Ins. Co. v. Charlotte Storage & Warehouse, Inc., 251 So.2d 725 (Fla.2d DCA 1971), holding that the automatic 30-day coverage provision wasn’t made inapplicable to a new car the insured drove into a highway collision, within 30 days after acquisition, by the insured’s ownership of another, uninsured vehicle which was not in operation or maintained for use on the highways.

Here there is no collateral insurance question, nor any issue about a collateral vehicle’s need for insurance at the time of the insured’s loss. This Mercury was required by statute to be insured when it was operated into a highway collision on August 8, 1976. Any time during the five months Bedgood owned the car, at Bedgood’s convenience before or after he repaired it, a telephone call by him to his agent would have insured the car. In the absence of that call and Bedgood’s agreement to pay a premium for insurance beginning on a certain date, he had no insurance. I know of no reason why the automatic 30-day insurance provision, which by its terms expired April 3,1976, should be extended indefinitely, at the insurer’s uncompensated risk, on the theory that the Mercury didn’t become an automobile until it was fixed.

      . This court’s decision in Boston Ins. Co. v. Smith, 149 So.2d 68 (Fla. 1st DCA 1963), which extended coverage to a car owned before the policy period, has been read as finding ambiguity in the standard clause then in common use. 1 Long, supra, section 4.08 at fn. 2.2; Glens Falls Ins. Co. v. Gray, 386 F.2d 520, 526 fn. 10 (5th Cir.1967). What Boston Insurance held, rather, was that the policy provision was ambiguous in its application to an unlisted Pontiac which the insured acquired three days after applying for insurance on his Mercury, but several days before the policy was issued for a term also beginning after the Pontiac was acquired.

      . Glens Falls stated, 386 F.2d at 524-25:
      The possession of an automobile needing major repairs — which was not intended to be used and was not used until after the repairs were completed during the policy year — can hardly be thought to be ownership for liability insurance purposes, since the principal purpose of such insurance is to provide coverage for an automobile which is to be driven and which may become involved in an accident or other mishap. It would be highly unrealistic, for this type of insurance, to treat an automobile as having been acquired before it is operable.


author: LARRY G. SMITH, Judge. WENTWORTH, Judge,

text:
    SUWANNEE RIVER AREA COUNCIL BOY SCOUTS OF AMERICA, Appellant, v. STATE of Florida, DEPARTMENT OF COMMUNITY AFFAIRS, and Florida General Equities, Inc., Appellees.
    No. PP-101.
    District Court of Appeal of Florida, First District.
    July 3, 1980.

      F. E. Steinmeyer, III, of Folsom & Stein-meyer, and Robert M. Rhodes, of Thompson, Wadsworth, Messer & Rhodes, Tallahassee, for appellant.
    C. Laurence Keesey, and Carl A. Bertoch, Tallahassee, for appellees.
   LARRY G. SMITH, Judge.

The Suwannee River Area Council Boy Scouts of America appeal from final agency action of the Department of Community Affairs denying the Council’s petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The petition was filed the day the Department issued a binding letter to Florida General Equities, Inc., determining that the proposed development, Lake Talquin Estates, was not a development of regional impact (DRI). In denying the petition, the Department noted that the Council had neither sought nor obtained status as an intervenor in the binding letter proceeding and it concluded that the Council lacked standing as a party to request a formal administrative hearing. We agree that the Department properly issued a binding letter in thú case and we affirm the Department’s denial of a formal hearing to the Council.

The Council owns and operates the Wall-wood Boy Scouts Reservation which lies adjacent to the developer’s property. In 1979, the developer submitted to the Gadsden County Planning and Zoning Commission, for conceptual approval, a proposed plan for developing its property into a residential community. The Council objected and urged the Commission to require that a determination be made as to whether or not the project was a DRI. In due course, the developer filed an application with the Department for a binding letter. The Council’s attorney attended the preapplication meeting requested by the developer with the Department staff and he made several calls concerning the project to the Department during the consideration of the binding letter. On the last day of the 60-day period allowed by the statute (Section 380.-06(4)(a), Florida Statutes), within which it must act on binding letter requests, the Department issued a binding letter determining that the Lake Talquin project was not a DRI. On the same day, a few hours before the binding letter was mailed, the Council filed a petition requesting a formal administrative hearing on the Developer’s application. In its letter denying the Council’s petition, the Department outlined the pertinent circumstances, and fully explained its application of the law and its reasons for the denial. We quote with approval from the Department’s letter:

Binding letters are issued pursuant to Section 380.06(4)(a) F.S. The law requires this agency to issue binding letters in an expeditious manner (within 60 days) and does not specify any parties to the proceeding other than the developer and the state land planning agency. A binding letter application is submitted to the Department voluntarily by a developer if he “is in doubt whether his proposed development would be a development of regional impact.” A binding letter is not a building permit or a permit to begin construction of a project. Even if a development is determined by this Department not to be a DRI, it is still subject to all local zoning ordinances, subdivision regulations and building permit requirements; in addition, any other applicable state and federal permitting requirements must be complied with. A binding
letter merely determines whether the developer’s plans must, in addition to other permitting requirements, be reviewed and approved by local government in accordance with the provisions of Section 380.06 F.S. The Legislature in enacting Section 380.06(4)(a), did not specify or intend that third persons, such as your client would be given standing as a formal party to participate in, and thereby delay, the determination by the Department as to whether a developer is subject to the additional review and approval procedures specified by Section 380.06, F.S.
* # * * * *
. the Department has considered the Section 120.52(10) definition of the term “party” and finds that there is no sufficient substantial interest alleged or shown by your client that will be affected or determined by a decision whether Lake Talquin Estates is or is not a development of regional impact. This conclusion is required when the preceding explanation of the nature and purpose of binding letters is considered in conjunction with the fact that your client’s property is adjacent to the development and any effect or impact felt by them resulting from Lake Talquin Estates would be inherently local, not regional. Furthermore, any such impact would result from actual construction of the project, which is not permitted or authorized by a binding letter, rather than the mere determination whether such construction must first be authorized pursuant to Section 380.06 in addition to other applicable local, state or federal permitting procedures.
* * * # * *
The Department further denies your Petition for Hearing because formal 120.-57(1) hearings must be requested by a party. No Petition to Intervene has been filed on behalf of your client that would have enabled the Department to consider whether any alleged interest of your client is sufficient to entitle it to party status. Rule 28-5.25(3)(a) Florida Administrative Code requires that intervention may be granted after a motion to intervene is filed stating the substantial interests of the intervenor and showing that such interests are subject to determination by the agency.
The Petition for Hearing received on July 9, 1979 does not reveal the existence of any material issue of disputed fact. * * The Petition for Hearing contains only vague unsupported, undocumented allegations concerning primarily local impacts. There is no reference to studies, reports or the existence of factual information that tends to challenge or contradict the information and facts referred to in the July 9, 1979 binding letter.
The Lake Talquin Estates binding letter was required to be issued on July 9,1979, pursuant to Section 380.06(4)(a) F.S. July 9, 1979 was the 60th day after receipt. Your Petition was received on the morning of July 9, and is not considered timely for the following reasons.
The Division of State Planning (the state land planning agency prior to July 1, 1979) received the application for a binding letter from Mr. J. J. Garcia, representing the developer, on May 10, 1979. Notice of the application was published in the May 18, 1979 issue of the Florida Administrative Weekly. However, on April 25, 1979, F. E. Steinmeyer III, Esq. [the Council’s attorney] attended a preap-plication meeting at the Division that included Mr. J. J. Garcia, Richard Gentry, Don Johnson and Diana Sawaya-Crane of the Division staff, to discuss the Lake Talquin Estates development.
Mr. Steinmeyer was advised by phone on April 26, 1979 by Ms. Sawaya-Crane that the Division would accept and consider factual information concerning the development. In May, 1979 Ms. Sawaya-Crane advised Mr. Steinmeyer that an application for a binding letter on Lake Talquin Estates had been received and she explained the binding letter process. Mr. Steinmeyer was invited to look at the Division files on the project and was advised that any comments or information should be submitted by June 15, 1979. On June 13 or 14, Mr. Steinmeyer’s secretary came to the Division to obtain copies of information submitted by the developer. No information was ever provided by Mr. Steinmeyer and although he was fully aware of the application for a binding letter and the time restraints related thereto, he did not take any action until the Petition was delivered on the morning on which the binding letter was due. Under these circumstances, the Department finds and concludes that the binding letter was properly issued on July 9, 1979, within 60 days of receipt as required by F.S. § 380.06(4)(a) and that the Petition For Hearing was not timely filed.
The Department concludes that your client has not sought or obtained status as an intervenor in the subject proceeding, and does not have standing as a party to require a formal hearing pursuant to Section 120.57(1). For the reasons stated in this letter, the Department denies the Petition For Hearing.

As the Department aptly pointed out, the Council was granted a point of entry in the binding letter proceeding. This was done pursuant to the Department’s Rule 22F-1.16(3), Florida Administrative Code, which permits the agency to solicit and accept submissions from any third persons who may possess factual information relevant to the Department’s investigation of an application. We agree that this procedure of allowing and soliciting input by the Council in this binding letter proceeding adequately protected the Council’s interest.

In its order, the Department went one step further in stating that in enacting Section 380.06(4)(a), “the Legislature did not specify or intend that third persons,” such as the Council, “would be given standing as a formal party to participate in, and thereby delay,” the determination by the Department of whether a developer is subject to the additional DRI review specified by Section 380.06, Florida Statutes. The Department maintained that the only interests determined or affected by the binding letter are the interests of the developer. Accordingly, it is the Department’s position that only the developer may request a Section 120.57(1) hearing. In support of this proposition, the Department cites its own Rule 22F-1.16, Florida Administrative Code. Subsection (12) of that Rule provides that if an applicant (the developer) believes the binding letter determination involves a disputed issue of material fact, which requires a fully evidentiary hearing, the applicant may request a 120.57(1) hearing.

Without deciding whether the Department may by its own order or rules permit third party participation, we agree with the Department’s ruling here that third persons have no enforceable right of their own volition to participate as formal parties in binding .letter proceedings. This court expressed this view of the statutory language in Compass Lake Hills Development Corporation v. State, 379 So.2d 376 (Fla. 1st DCA 1979), albeit as dicta, when we stated that in binding letter determinations, “only the Department and the developer are involved,” citing South Florida Regional Planning Council v. Florida Division of State Planning, 370 So.2d 447 (Fla. 1st DCA 1979), and South Florida Regional Planning Council v. Florida Land and Water Adjudicatory Commission, 372 So.2d 159 (Fla. 3rd DCA 1979). These latter two cases dealt with the standing of governmental agencies, rather than private parties, both cases denying standing to the Regional Planning Council to contest the Department’s determination that the proposed developments were not of regional impact. Also, denial of standing to a county was involved in Sarasota County v. General Development Corp., 325 SO.2d 45 (Fla. 2nd DCA 1976), when the County sought to appeal to the Land and Water Adjudicatory Commission, pursuant to Section 380.07, Florida Statutes, a development order issued by a city within the county’s boundaries. It can be seen that the decided cases, thus far, deal with the standing issue only as it relates to interests asserted by other governmental agencies, rather than private persons. The only case we have found involving the standing of a private person to question the DRI status of a proposed development is Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla. 2nd DCA 1976). That case, however, was concerned with the standing of a private party to maintain an action to enjoin a project until its developers complied with Chapter 380, and the court did not address the precise issue, that is, whether a third party was entitled to formal entry into the binding letter process. Furthermore, the Lake Pad-gett court also ruled that Chapter 380 was not actually involved in the controversy. See also Sarasota County v. Department of Administration, 350 So.2d 802 (Fla. 2nd DCA 1977).

We consider it of fundamental significance that a binding letter proceeding is a process for determining whether another layer of government must be dealt with by a developer. Designation of a project as a development of regional impact operates to impose yet another restraint upon the use and development of property, in addition to those already imposed by state and local regulatory measures. We recognize it is not the purpose of Chapter 380 to provide a forum for parties whose complaints focus on alleged detriment to activities they wish to conduct on adjoining land. “Regional impact” is concerned with matters affecting the public in general, not special interests of adjoining landowners. We point out that such special interests are properly asserted before the local governing body having jurisdiction to control land use and de-. velopment under zoning and building regulations. Furthermore, the time restriction mandated by the statute (60 days) does not readily lend itself to formal entry of third persons into the binding letter proceeding. It is also entirely foreseeable that, as a practical matter, entry of third persons would so delay and complicate the procedure as to be in the end self-defeating, since developers would be more reluctant to voluntarily subject themselves to the additional delay and expense entailed in securing a binding letter.

Appellant’s reliance upon Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977), in support of its argument for “standing” giving the right to a formal Section 120.57(1) hearing, is misplaced. In Gadsden, this court held that Gadsden State Bank was entitled to a formal hearing, not because of its potential injury by a proposed competing bank, but because Gadsden Bank was a protestant expressly entitled to party status under the agency’s own rules. In addition, the proceeding in Gadsden was required by law as the final step in the licensing or permitting process. See also Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

Finally, we find that the binding letter in this case complies with the requirements of Chapter 380. Initially, it should be pointed out that Lake Talquin Estates, which proposes only 436 units, is not a presumptive development of regional impact under Rule 22F-2.10, Florida Administrative Code, which Rule provides a threshold of 500 residential units, before a development is presumed to be a DRI. Even so, the Department made a careful and detailed examination of the character, magnitude and location of the development. Each of the impacts was assessed by the Department and addressed separately in the binding letter. After gathering information from the appropriate agencies, the Department, carrying out its statutory duty under Chapter 380, determined that the development was not of regional impact.

The orders appealed from are AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

WENTWORTH, J., specially concurs with opinion.

WENTWORTH, Judge,

specially concurring.

I agree with the conclusion to affirm the order appealed. Pursuant to Rule 22F-1.-16(3), Florida Administrative Code, the Department solicited the Council’s par'.Icipation in the binding letter proceedings, but the Council did not respond or in any way avail itself of this available “point of entry.” The Council likewise failed to avail itself of Rule 28-5.25(3)(a), Florida Administrative Code, authorizing intervention upon motion. Under these circumstances I conclude that the Council has not shown an abuse of discretion in the Department’s denial of the Council’s request for a § 120.-57(1) hearing as untimely and improper under the circumstances.

      . We further note that, even if an agency
      should grant a full party status to third persons, this does not necessarily entail a formal Section 120.57(1) hearing. See United States Service Industries — Florida v. Florida Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980): “Not every dispute between an agency and an affected person requires formal proceedings for its resolution. Many disputes, . . can as readily be determined and made ready for judicial review under Section 120.57(2), which in proper application will afford full relief faster and more conveniently.”

      . The Lake Padgett court ruled that Lake Pad-gett Pines, a partnership, had standing to maintain an action to enjoin a water supply project on nearby land, based upon the failure of the developers of the water project to comply with Chapter 380. The complaint alleged that the well field would jeopardize the water supply from Lake Padgett Pines’ own wells, lower the level of lakes on its property, and result in other damages peculiar to its lands. Even though the court found standing to litigate the issue of compliance with Chapter 380, "based upon allegations of damage “materially different in kind from those affecting the public generally” (Lake Padgett Pines, supra, at 475), the court found that Chapter 380 was not applicable to the project, since Chapter 373, Florida Statutes (1972), the “Florida Water Resources Act,” controlled the regulatory aspects of the well field project.

      . Emphasis on local control and the limited scope of Chapter 380 is expressed in the legislative intent, found in Section 380.021, that “state land and water management policies should, to the maximum possible extent, be implemented by local governments through existing processes for the guidance of growth and development; and that all the existing rights of private property be preserved in accord with the constitutions of this state and of the United States.”


author: PER CURIAM.

text:
    CLING ELECTRIC, INC., and Old Republic Insurance Company, Appellants, v. James JONES, Appellee.
    No. UU-309.
    District Court of Appeal of Florida, First District.
    July 3, 1980.
    John F. McMath, P. A., Miami, for appellants.
    L. Barry Keyfetz, Miami, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

On November 9,1979, our court issued its opinion in Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979). The opinion affirmed the deputy commissioner’s order, except as to certain periods of temporary total disability, and remanded the case for further proceedings consistent with the opinion. On January 23, 1980, the deputy commissioner entered an order conforming his earlier order to the opinion of our court and denying a claim for penalties. The claimant, Jones, appealed from that order on February 8, 1980 (Case No. TT-464).

Thereafter, a dispute apparently arose concerning what items should be included in the record on appeal in Case No. TT-464. On March 10, the deputy entered an order specifying what the record on appeal should include. The employer/carrier (Cling) takes this appeal from that order.

On April 15, the deputy certified that Cling had failed to make the cost deposit for the record on appeal. Based on the certification, Jones moves to dismiss the appeal.

Although Cling’s failure to make the cost deposit provides sufficient reason to dismiss this appeal, there is a more compelling reason. Questions concerning the record on appeal should be raised by motion in the case appealed. Rule 20(a), Fla. W.C. R.P., states:

“Before the record is transmitted, the deputy shall have concurrent jurisdiction with the District Court to enter orders on any procedural matter relating to the cause, subject to the control of the District Court on its motion or that of a party.” (e. s.)

The instant case shows the wisdom of providing for review of procedural orders by motion. This appeal has as its only issue the propriety of the record on appeal in another appeal. Conceivably, there could be a dispute over the record on appeal in this case, which could result in still another appeal, in which there could be a dispute over the record, and so on ad infinitum.

We would treat this appeal as a motion to review the deputy’s order if we could determine from the various motions and responses filed in this case Cling’s objection to the record as specified.

Cling seems to argue that the record on appeal must always contain the items specified in Rule 18(a) or there must be a stipulated statement as provided by Rule 18(c). This argument, of course, overlooks Rule 18(b) which permits appellant to file an abbreviated record.

Under Rule 18(b) the appellant informs the deputy of the material that is to be omitted from the record as unnecessary for a determination of the issues on appeal. The appellant serves appellee(s) with a copy of the designation and a statement of the issues on appeal. If an appellee believes that any of the omitted items are necessary to determine the issues raised by appellant, the appellee files a cross-designation specifying those items.

The purpose of Rule 18(b) is to limit the record on appeal to those items that must necessarily be included in the record for the appellate court to determine the issues raised. The rule permits all parties to specify the items they think should be included in the record; however, the designated items must be necessary.

In this case Cling has not mentioned in any of its motions or responses any item that has been omitted from the record that is necessary to determine the issue raised in Case No. TT-464. Therefore, we decline to treat this appeal as a motion filed in Case No. TT-464.

Appellee’s motion to dismiss is granted for the previously stated reasons, and this appeal is hereby DISMISSED.

ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.


author: MOORE, Judge.

text:
    George SEAMAN, Appellant/Cross Appellee, v. William ZANK and The Hartford Accident and Indemnity Company, Appellees/Cross Appellants.
    No. 78-425.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied July 18,1980.
    Martin J. Sperry of Krathen & Sperry, Fort Lauderdale, Susan Goldman, Miami; and Glass, Rastatter, Stark & Tarlowe, Fort Lauderdale, for appellant/cross appellee.
    K. P. Jones, Fort Lauderdale, for ap-pellees/cross appellants.
   MOORE, Judge.

This cause is affirmed. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1221 (Fla.1978). Although we would prefer a more definitive rule, we cannot say that reasonable men would not differ as to the action taken by the trial judge in granting a motion for new trial. Therefore, the appellant has failed to demonstrate an abuse of discretion.

AFFIRMED.

LETTS, C. J., and SPENCER C. CROSS, Associate Judge, concur.


text:
    Kelly BURCHETTE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 79-376.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Rehearing Denied June 25, 1980.
    T. G. LaGrone, Orlando, for appellant.
    James 0. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee.
   COBB, Judge.

The action of the trial court in setting aside a default judgment entered upon an unliquidated claim for damages without notice to the defaulted party, State Farm Mutual Automobile Insurance Company, is affirmed on authority of B/G Amusement, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). The motion to set aside the order of default on the basis of excusable neglect was untimely, and the trial court’s order setting aside the clerk’s default is reversed. See Fla.R.Civ.P. 1.540(b).

AFFIRMED in part; REVERSED in part.

ORFINGER and UPCHURCH, JJ., concur.


text:
    Jos. D. FARISH, Jr., Appellant, v. Nancy D. W. WAKEMAN, Appellee.
    No. 79-521.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied July 16, 1980.
    F. Kendall Slinkman and Robert V. Ro-mani of Farish, Farish & Romani, and Robert M. Montgomery, Jr. of Montgomery, Lytal, Reiter, Denney & Searey, P. A., West Palm Beach, for appellant.
    John S. Call, Jr., and Wade R. Byrd of Stewart, VanderHulse, Call & Byrd, Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final summary judgment entered in favor of defendant in a defamation action. Plaintiff sued defendant charging that she made certain statements under oath before the Florida House of Representatives Select Committee on Impeachment of certain Supreme Court Justices. The specific statements made are recited in paragraph 3 of the complaint and are alleged to be false and defamatory. The complaint also alleges that the statement in question was made before news media, television cameras, electronic recording devices and that the same was steno-graphically reported. It is also alleged that the newspapers, television and radio thereafter published the statements to the people of the State of Florida and the Nation.

Depositions were taken which indicate that the hearing in question was an official proceeding before the Committee of the House of Representatives and that the defendant was under compulsory subpoena at the time of her testimony. The hearing was public in nature. The trial court found for defendant on motion for summary judgment on the theory that the defendant’s statements were absolutely privileged. In so ruling, the trial court stated:

The law not only in the State of Florida, but by the overwhelming weight of authority in these United States is that' defamatory words published by witnesses who appear before judicial and legislative tribunals involuntarily and pursuant to legal subpoena, which utterances are relevant or material to the cause or subject of inquiry are absolutely privileged. See McNayr v. Kelly, 184 So.2d 428 (Fla.1966), and Fiore v. Rogero, 144 So.2d 99 (Fla.2nd DCA 1962); Kelly v. Daro, 47 Cal.App.2d 418, 118 P.2d 37 (1941).

We conclude that the findings of the trial judge were correct and that the specific comments alleged in the complaint are the subject of an absolute privilege. As such, summary judgment was properly entered for defendant and same is hereby affirmed.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., and STEWART, JAMES R., Jr., Associate Judge, concur.


author: DANIEL PEARSON, Judge.

text:
    Polly P. SEIDNER, Appellant, v. Francis J. SEIDNER, Appellee.
    No. 79-2403.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Neil Chonin and Marilyn Sher, Miami, for appellant.
    Francis J. Seidner, in pro. per.
    Before HUBBART, BASKIN and DANIEL PEARSON, JJ.
   DANIEL PEARSON, Judge.

This appeal is from an order of the trial court enforcing a judgment of the District of Columbia which gave the appellee temporary custody of the minor children of the parties. It appears that subsequent to the entry of the order appealed from, the Superior Court of the District of Columbia entered its judgment awarding the appellee permanent custody of the minor children. No practical result can be attained by our review of the questions raised on this appeal which have been mooted by the action of the Superior Court of the District of Columbia. Dehoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (Fla.1943); Young v. Quinn, 351 So .2d 1076 (Fla. 4th DCA 1977); Gulf Life Insurance Company v. Newell’s Incorporated, 226 So.2d 858 (Fla. 4th DCA 1969); In re Estate of Lindsay, 207 So.2d 736 (Fla. 4th DCA 1968); F. S. Bliven v. Turville, 100 So.2d 91 (Fla. 2d DCA 1958). Conceding mootness, the appellant urges that the issues in this case are “capable of repetition, yet evading review” and that, therefore, we should retain jurisdiction and entertain this appeal. We disagree. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

Accordingly, the appeal is dismissed.


text:
    Salvador MARTINEZ, Appellant, v. SAN-BAR ENTERPRISES, INC., Frishman & Clyman, P.A., now known as Frishman & Miller, P.A., Israel Garcia and Benito Fernandez, Appellees.
    No. 80-79.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 18, 1980.
    Lopez & Harris and Jeffrey Drew Cum-mins, Miami, for appellant.
    Leonard Frishman, Coral Gables, and Bruce M. Boiko, Miami, for appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. Kirk v. Edinger, 380 So.2d 1336 (Fla. 5th DCA 1980). See generally: Omni-Vest, Inc. v. Reiehhold Chemicals, Inc., 352 So.2d 53 (Fla.1977) and J. I. Kelley Co. v. Pollock & Bernheimer, 57 Fla. 459, 49 So. 934 (1909).


text:
    Ramon HERNANDEZ, Appellant, v. KIMZAY OF FLORIDA, INC., a Florida Corporation and KIMCO Development Corporation, a Delaware Corporation, Appellees.
    No. 79-1369.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 18, 1980.
    Joe N. Unger, Bernard P. Goldfarb & Associates, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied 373 So.2d 460 (Fla.1979); Vermont Mutual Insurance Company v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978).


text:
    Laura Crandall SAFIE and United States Fire Insurance Company, Appellants, v. Rodolfo ALDIR and Berta Aldir, his wife, Appellees.
    No. 79-1598.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 18, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz, Miami, for appellants.
    Dickman & Barnett and L. Kenneth Barnett, Coral Gables, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.110(d); Hough v. Menses, 95 So.2d 410 (Fla.1957).


text:
    BISCAYNE WEST, INC., and Irvin Freedman, Appellants, v. BURNAC MORTGAGE INVESTORS, LTD., Appellee.
    No. 79-1336.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      Greenfield & Duval and Robert Merchant, for appellants.
    Britton, Cohen, Kaufman, Benson & Shantz and W. John Gundlach, Jr., Fort Lauderdale, and J. Robert Olian, North Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The summary final judgment and final decree of foreclosure is affirmed upon a holding that: (1) the record without dispute establishes that the appellants herein are in default on the subject indebtedness established by the stipulation of settlement as incorporated in the prior final judgment entered in this cause, which default is sufficient to authorize the foreclosure ordered herein, and (2) the appellants’ counterclaim and affirmative defenses are insufficient as a matter of law because (a) they seek to set aside the prior final judgment based on grounds of duress, misrepresentation and misconduct by the appellee when well over one year has elapsed from the entry of said final judgment, thereby barring such action as untimely, and (b) they in no sense make out an independent action to set aside the prior final judgment for fraud upon the court. August v. August, 350 So.2d 794 (Fla. 3d DCA 1977); Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976); Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973); Fla.R. Civ.P. 1.540(b).

Affirmed.