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

text:
    Albert W. TRESVANT, Sr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-2002.
    District Court of Appeal of Florida, Third District.
    March 13, 1981.
    Rehearing Denied April 28, 1981.

      Harold C. Culmer, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge..

We begin with the procedural history of this case.

In 1977, Albert W. Tresvant, Sr., Candido Giardino and Dante Dino, Jr. were charged in a three-count indictment with requesting, soliciting, accepting and agreeing to accept bribes and unlawful compensation; and conspiring with each other and others to commit these substantive crimes. A jury found Tresvant guilty on all counts.

The trial court granted Tresvant a new trial on matters relating to jury conduct. The State appealed; we reversed. See State v. Tresvant, 359 So.2d 524 (Fla. 3d DCA 1978) (Tresvant I). Upon remand, the trial court entered judgment against Tres-vant and sentenced him to concurrent indeterminate prison terms of six months to four years. Tresvant appealed.

In the interim preceding the filing of Tresvant’s appeal, we affirmed the dismissal of the conspiracy count against the co-defendant Giardino on the ground that this count was insufficiently pleaded. See State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978). Tresvant, apparently believing that our holding in Giardino would be totally dispositive of Tresvant’s appeal, urged that the invalidity of the conspiracy count, ipso facto, entitled him to a complete reversal. He suggested that out-of-court statements of co-conspirators were, in the absence of a viable count charging conspiracy, wrongfully admitted.

For the reasons discussed in Giardino, we agreed that the conspiracy count against Tresvant could not stand. Concluding, sub silentio, that the dismissal of the conspiracy count did not compel reversal of the substantive counts, we deferred ruling on the admissibility of the co-conspirator hearsay pending the filing of the trial transcript. See Tresvant v. State, 370 So.2d 89 (Fla. 3d DCA 1979) (Tresvant II).

There ensued a considerable delay in the preparation and filing of the trial transcript. In the spring of 1980, the transcript was filed and the case was ready for argument on the issue left open. By then, however, counsel who had tried the case on Tresvant’s behalf and originated the appeal was suspended from the practice of law. Tresvant ultimately procured new counsel. The case was heard, supplemental briefs were filed, and we now address the undecided question.

The admissibility of hearsay statements of co-conspirators is not dependent upon the existence of a count charging a conspiracy. Damon v. State, 289 So.2d 720 (Fla.1974); Nichols v. State, 390 So.2d 1238 (Fla. 2d DCA 1980); Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980); Farnell v. State, 214 So.2d 753 (Fla. 2d DCA 1968); United States v. Spencer, 415 F.2d 1301 (7th Cir. 1969); United States v. Rinaldi, 393 F.2d 97 (2d Cir. 1968); United States v. Messina, 388 F.2d 393 (2d Cir.), cert, denied, 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968); United States v. Jones, 374 F.2d 414 (2d Cir. 1967); United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961). See also Brik-lod v. State, 365 So.2d 1023 (Fla.1978). The admissibility of these statements depends, instead, on the rule of evidence which excepts such statements from the general rule which makes hearsay inadmissible. Hon- chell v. State, 257 So.2d 889 (Fla.1972); Boyd v. State, supra. Thus, whether or not a conspiracy is charged, the threshold condition of admissibility of a co-conspirator’s hearsay statement — proof independent of the statement that the defendant against whom the statement is sought to be introduced and the declarant participated together in a conspiracy — remains the same. Damon v. State, supra; Boyd v. State, supra; Briklod v. State, supra; United States v. Annunziato, supra. Tresvant’s participation in a conspiracy with Candido Giardino, Dante Dino, Jr. and others, co-conspirators whose declarations were admitted through the testimony of Ronald Flory, Emmett Garmany and Don Kozich, witnesses for the State was, as will be seen, overwhelmingly established by the required independent proof. That made the hearsay, as any other evidence, admissible to prove Tres-vant’s commission of the substantive crimes.

The record reflects that the City of Opa-Locka awarded a contract for the construction of a public works building to Kozich and Kozich, a construction firm. Tresvant was the mayor of the city and cast his vote in favor of Kozich and Kozich. Dante Dino, Jr. was a principal in D & K Electric Corporation, the electrical subcontractor under Kozich and Kozich on this job. Candido “Candy” Giardino was a commissioner of the City of Opa-Locka. He also voted to award Kozich and Kozich the job. Ronald Flory, Emmett Garmany and Don Kozich were all employees of Kozich and Kozich.

According to Flory, Dino contacted him with a proposition: if Kozich and Kozich would hire Dino’s company as the electrical subcontractor, Dino' would guarantee that Kozich and Kozich would be awarded the construction job by the city. In return for this guarantee, Dino requested that he be paid more than the $21,000 which Kozich and Kozich had allotted for the electrical work. Dino suggested to Flory that the excess, which would have to be “spread around,” could be generated by inflated change orders which Kozich and Ko-zich would submit and which, Dino made clear, would be approved by the City Commission. Kozich and Kozich agreed to hire Dino’s firm for $28,000. Kozich and Kozich was awarded the contract.

We turn now to the evidence, independent of hearsay, which showed Tres-vant’s participation in a conspiracy with Dino and Giardino (nontestifying declar-ants) and Flory, Garmany and Kozich (testifying declarants). As will be seen, this evidence consists of testimony about the acts and declarations of Tresvant, as well as testimony about statements incriminating Tresvant made by others in Tresvant’s presence. The admissibility of this latter type of evidence is based on the rule that a person’s silence can constitute an admission where the circumstances and nature of the statement are such that it would be expected that the person would protest the statement if untrue. See Sullivan v. McMillan, 26 Fla. 243, 8 So. 450 (1890); McCormick, Evidence §§ 269-70 (2d Ed. 1972). Either type of this unquestionably admissible evidence can be used to independently show Tresvant’s participation in a conspiracy upon which the admission of the co-conspirator hearsay statements can be predicated and, at the same time, to show Tresvant’s commission of the substantive crimes.

Flory’s Testimony

Flory testified that he and Don Kozich met with Tresvant and Giardino. Tresvant was present throughout the meeting. There was a general discussion about money and draws. Giardino asked if Dino had been paid his first draw.

“Q What was said then?
“A Mr. Giardino asked if money could be paid directly to them because they had not received any money from Mr. Dante Dino.”
“Q Did he indicate he was by himself in that request?
“A He said is there any way you can pay us direct.”
“Q What was Mr. Kozich’s response to that?
“A He said there was no way he could pay direct because he had a contract with D & K Electric for $28,000 and if he paid them direct, he’d also have to pay D & K $28,000 and in effect he would be compounding what he had already done.”

Giardino complained about the difficulties he was encountering in “getting ahold” of Dino. There ensued a discussion as to the amount of money intended for the commissioners. Flory told Tresvant and Giardino “that there was $7,000 that was supposed to have been spread around.” According to Flory, Tresvant and Giardino were “very surprised that it was a $7,000 figure” and were “both unhappy.”

Flory related that he met again with Tresvant at Tresvant’s home in Opa-Locka. At that time, Tresvant brought up the question whether there was “any way to get more money out of the padded change orders.”

“Q [By the prosecutor] Did Mr. Tres-vant ever indicate to you what would happen to the padded change orders should they reach the city commission?
“A They would be passed.”

Tresvant asked Flory, “if we get you the change orders, is there more money in it for us?”

Garmany’s Testimony

Emmett Garmany also testified to meeting with Tresvant, Flory and Kozich. He heard Don Kozich tell Tresvant:

“... that, you know, we needed to get our monies back through change orders and they discussed that and then Don pressed the issue and told him that, you know, we would in fact, you know, be willing to help you but the thing about it is we have to get before Kennie Wells and Mr. Giardino and we can get it processed through there and we can get it taken care of.”

Garmany testified that he told Tresvant:

“... you guys have received your money and everything and we need to get ours.”

and Tresvant responded:

“... he would have to meet before the commissioners and everything and then they would put it through once it got to him, Benfield, Tom Benfield would get to it, Mr. Griffiths, and then it would get approved.”

Kozieh’s Testimony

Don Kozich testified to a meeting and conversation with Tresvant, Giardino and Flory.

“Q Who said what? Avoid using ‘they,’ and ‘we,’ and try to name names as to who said what.
“A Well, Mr. Tresvant was doing most of the talking. He said that he was concerned about getting their money-
“Mr. Dino was unavailable and they could not get ahold of him and he was being very uncooperative and he asked me if we could pay them direct.”
“A I told him I couldn’t do that without a change order. . .. and explained that under contract law, I would still be responsible for paying Dino the full amount of his contract.”

Kozich then testified:

“Q [By the prosecutor] What else was said during this conversation?
“A I don’t know if they asked us or we told them, but I know it came out that Dante Dino had told us they were going to get $1,000 apiece and Mr. Tresvant and Mr. Giardino were under the impression that they were only going to get $500 apiece.
“Q For what, sir?
“A For — Dante Dino was going to pay them $500 apiece.
“Q For what?
“A As part of the arrangement.
“Q For the public works contract?
“A Right.
“Q What were their reactions when you told them that you were of the understanding it was $1,000 apiece.
“A They were upset about that.
“Q Was there an agreement for any other meetings out of this first meeting?”

Kozich related that he told Tresvant and Giardino that he “couldn’t do anything on the payment until I talked to Danny [Dino] and I would try and get ahold of Danny [Dino] and set up a meeting where we would get it straightened out.” On the following day, the same people met at the job site. Kozich testified that the others “reiterated what we discussed the previous day so far as the money involved and they still wanted me to pay them direct, which I told them I couldn’t do ” He went on:

“Q Were there any other suggestions regarding how they could get their money?
“A Yes.
“Q What was that suggestion?
“A I could get — Dante Dino to sign a change order taking that money out of the contract.”

Kozich said he would try to set up a meeting with Dino and get back to them. Tres-vant and Giardino indicated they wanted to be present at this meeting, stating, “They weren’t sure of him and they wanted to be sure that when in fact I paid him they would get paid.”

A meeting at Dino’s offices was set up. Kozich testified that at this meeting, in the presence of Tresvant, Giardino and Flory, he gave a $4,400 check payable to D & K Electric to Dino. Kozich testified about a final meeting with Tresvant at Tresvant’s home:

“Q Was there ever any more requests for any additional money?
“A Yes.
“Q By whom?
“A Mr. Tresvant.
“Q Where was this?
“A At his home.”
“Q What [did] Mr. Tresvant say to you at this time?
“A He said that he wanted me to put in $1,000 apiece for each one of them and he said, you know, there is four of us.
“Q For what?
“A To guarantee — to ensure the change orders would go through.
“Q Did you agree to that?
“A Yes.
“Q Did you ever pay him any more money?
“A No.”

Finally, Kozich testified:

“Q Approximately how many other change orders were submitted?
“A Well, there’s one large one which is in a letter form which is not here so that was the one that was the biggest one we discussed which was inflated with the $4,000 figure.
“Q Who did you discuss that with?
“A Tom Benfield and Mr. Tresvant.
“Q Were they aware it was inflated?
“A Yes.”

The foregoing testimony of Flory, Garmany and Kozich established that Tresvant was a member of a conspiracy with Giardino, Dino and these witnesses, so as to make admissible hearsay statements of these co-conspirators made during the course of and in furtherance of this conspiracy.

In sum, the admissibility of hearsay statements of co-conspirators is not dependent upon the existence of a count charging conspiracy. Our earlier dismissal of the conspiracy count on the ground that it insufficiently charged the offense of conspiracy is irrelevant to our determination of whether a conspiracy existed in fact. Since a conspiracy and Tresvant’s membership in it were established by ample independent proof, the testimony about out-of-court statements made by co-conspirators in furtherance of and during the course of the conspiracy was correctly admitted. Finally, the evidence in this case, including this admissible hearsay testimony, was more than sufficient to support the jury’s verdict of Tresvant’s guilt on Counts Two and Three for requesting, soliciting or agreeing to accept a bribe and unlawful compensation. See Coleman v. State ex rel. Mitchell, 132 Fla. 845,182 So. 627 (1938); Craig v. State, 244 So.2d 151 (Fla. 3d DCA 1971) (the crime of bribery comprehends attempted bribery); Buchanan v. State, 167 So.2d 38 (Fla. 3d DCA 1964) (a person who solicits a bribe through an agent or go-between, even as a person who acts directly, may be found guilty of violating the bribery statute). Accordingly, we affirm the judgment below.

Affirmed.

BARKDULL, Judge,

dissenting.

I respectfully dissent. Before the hearsay testimony was admitted, counsel for the defendant made an objection thereto and the trial judge admitted the hearsay testimony only because of the conspiracy count and made it plain that if it were not for the conspiracy count he would not permit it, and if the conspiracy count failed such evidence would not be admissible as to the counts relating to bribery and unauthorized compensation, as the following appears in the transcript:

“THE COURT:
“However, I am not satisfied that an instruction to the jury -to disregard the testimony in the event the State fails to show the existence of a conspiracy and the Defendant’s participation therein by other evidence to the extent that it makes a prima facie case is sufficient and if the State does fail to do it, I think it would be incumbent upon me to take an action more drastic than striking the testimony or declaring a mistrial. I think I would be inclined to grant a judgment of acquittal on that count.
“MR. MUNROE: I would agree with you. If I fail to prove the conspiracy, I concede.
“MR. CARHART: The Court is saying that if no conspiracy is proven this testimony would not be admissible as to the bribery and the unauthorized compensation count?
“THE COURT: Right.”

It also appears that the hearsay testimony should not have been introduced without independent evidence of the conspiracy. See: Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980) wherein, in the opinion by Judge Danahy, the use of hearsay testimony is discussed and, in particular, see the following at page 648:

“3. Conspiracy (however defined) as a basis for admitting in evidence out-of-court (hearsay) statements of a person alleged to be a co-conspirator of the defendant in a criminal case. Such hearsay evidence may be offered in a case in which the crime of conspiracy is charged, in a case in which a substantive offense is charged on a theory of vicarious liability, based on conspiracy, or, theoretically at least, in any other criminal case. As we have pointed out, a co-conspirator’s hearsay statements are admissible only if there is independent evidence of the conspiracy. ...”

Therefore, from a complete review of the record and, in particular, the trial judge’s statements as set forth above plus this court’s earlier reversal of the conviction under the conspiracy count, I would accord the defendant a new trial.

      . Violations of §§ 838.015, 838.016 and 777.-04(3), Fla.Stat. (1975), respectively.

      . The cases against Giardino and Dino were severed for reasons not pertinerit to this appeal.

      . Under Tresvant’s theory that co-conspirator hearsay is inadmissible without a viable conspiracy count, a review of the trial transcript would be unnecessary to a complete determination of his appeal. Since that theory is erroneous, see discussion infra, a review of the trial transcript is necessary to see if the co-conspirator hearsay was admissible, and if not, to see if the error of admitting it tainted the jury’s consideration of the substantive counts (sufficiently proved by other evidence) so as to require a new trial. Since the trial transcript does reveal that the co-conspirator hearsay was pervasive, we would not find its admission harmless if indeed it were inadmissible.

      . On October 23, 1980, his counsel was disbarred. See The Florida Bar v. Matthews, 389 So.2d 1004 (Fla. 1980).

      . Tresvant was tried in 1977, prior to the effective date, July 1, 1979, of Section 90.803(18), Florida Statutes (1979). This statute makes admissible, as an admission of a party and an exception to the hearsay rule, “a statement by a person who was a co-conspirator of the party [against whom the statement is offered] during the course, and in furtherance of the conspiracy.” Concededly, the Florida Evidence Code applies to criminal proceedings related to crimes committed after its effective date. § 90.103, Fla.Stat. (1979). Section 90.803(18), however, adopted existing Florida law. See Law Revision Council Notes — 1976. Florida courts traditionally have viewed a co-conspirator’s statement as hearsay, but admissible as an exception to the hearsay rule. This view is now embodied in Section 90.803(18). For a different view, which makes for no difference in result, see Federal Rule of Evidence 801(d)(2)(E), which makes the co-conspirator statement non-hearsay.

      . As we have previously said, our dismissal of the conspiracy count in Tresvant II for the reason that the count did not sufficiently inform the defendant of the charge against him was not a determination that no conspiracy in fact existed.

      . This testimony of Flory relating his conversations with Dino outside of the presence of Tres-vant is classic hearsay. Hearsay evidence is, inter alia, in-court testimony about a statement made out of court, such statement being offered to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert, denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193 (1972). The admissibility vel non against Tresvant of Dino’s statements to Flory depends on whether the State, by proof independent of this and like hearsay, established that Dino and Tresvant participated in this conspiracy during the course of which, and in furtherance of, Dino’s statements were made. Flory’s out-of-court statements to Dino, although less recognizable as such, are, to the extent they are introduced to prove the truth of Flory’s out-of-court statements, equally hearsay, and their admissibility depends as well on independent proof that Flory (as declarant) and Tresvant participated in a conspiracy. The difference between Dino (who did not testify) and Flory (who did) is that Flory’s credibility as a witness, and thus as an out-of-court declarant, is subject to scrutiny. Admittedly, a substantial number of these co-conspirator statements were admitted prior to the submission of independent proof showing Tresvant’s participation in a conspiracy with the declarant-co-conspirator. That fact, however, is of no consequence, since it is within the sound discretion of the trial judge to permit the order of proof to be reversed provided only that ultimately the prosecution furnishes adequate independent proof of the conspiracy. Honchell v. State, supra; Boyd v. State, supra; see also Briklod v. State, supra. The statement presently found in Section 90.803(18)(e), Florida Statutes (1979), that “upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph,” admittedly inartfully worded, means that the instruction is to be given at the outset of the case or prior to the admission of hearsay, and does not refer to the order of proof. Moreover, the statement sometimes found that the “conspiracy must first be established,” see, e. g. Nichols v. State, supra, cannot, in light of clear Florida law to the contrary, be read to mean that the conspiracy must be proved before the hearsay statements come in. Nichols cites Briklod in support of this statement, but Brik-lod itself allows the order of proof to be otherwise. The risk in allowing the hearsay to precede the independent proof of the defendant’s participation in a conspiracy is that the independent proof may not be forthcoming, and the case will be infected with inadmissible hearsay. But a defendant cannot be heard to complain about the sequence of proof if the conspiracy is ultimately established.

      . This rule is to be distinguished from the rule prohibiting an admission by silence where the silence is motivated by an advice of constitutional rights.

      . Even if this evidence were impeached through inconsistencies or otherwise, it is sufficient to overcome a motion for judgment of acquittal, see Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976), and, a fortiori, sufficient to establish a predicate for the introduction of co-conspirator hearsay statements.

      . It does not appear that any Florida court has announced a test for the quantum of independent proof of conspiracy which must be found by the trial judge before admitting the co-conspirator statements. See Briklod v. State, supra, at 1026 n. 5. However, every recognized test, i. e.: “slight evidence,” Burns v. State, 72 Okl.Cr. 432, 117 P.2d 155 (1941); “prima facie,” Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied sub nom., Palermo v. United States, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964); “preponderance,” United States v. Trotter, 529 F.2d 806 (3d Cir. 1976); “fair preponderance,” United States v. Ross, 321 F.2d 61 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963); and “substantial,” United States v. James, 590 F.2d 575 (5th Cir. 1979) (rehearing en banc); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), n. 14 (dictum), would have been satisfied by the proof of Tresvant’s independent acts and statements in the present case.


source: Caselaw Access Project

author: ORFINGER, Judge.

license: Public Domain

text:
    Harold Dale STEPHENS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-17.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Rehearing Denied April 16, 1981.

      Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant raises only one point on appeal from his conviction for robbery with a firearm. He contends that the trial court erred in refusing to give to the jury his requested instruction on robbery without a weapon (strong arm robbery), which he says is a category III necessarily included offense one step removed from the offense of robbery with a firearm, so as to require reversal under the principles announced in Brown v. State, 206 So.2d 377 (Fla.1968). We disagree and affirm.

The refusal to give an instruction on a lesser included offense one step removed from the crime for which a defendant is convicted is reversible error. State v. Abreau, 363 So.2d 1063 (Fla.1978), cert, denied 376 So.2d 68 (1979); Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980). Put another way, if the offense on which the instruction is refused is not two or more steps removed from the crime for which a defendant is convicted, the error is not harmless. Butler v. State, 379 So.2d 715 (Fla. 5th DCA 1980).

Here, appellant was charged with (and convicted of) robbery with a firearm under section 812.13(2)(a), Florida Statutes (1977). That section proscribes robbery with a firearm or a deadly weapon. Appellant contends that robbery with a weapon, section 812.13(2)(b), is not a necessarily included offense of robbery with a firearm or other deadly weapon because the statutory definition of “weapon” excludes a firearm from its terms. The logic of the argument escapes us. The offense of robbery with a weapon is a lesser included offense of robbery with a firearm or deadly weapon. Growden v. State, 372 So.2d 930 (Fla.1979), and is one step removed therefrom. Thus, it follows that the requested instruction was for a crime two steps removed from the crime for which appellant was convicted, and thus the error, if any, in refusing to so instruct the jury was harmless.

The judgment of conviction is affirmed.

COBB and SHARP, JJ., concur.

      . § 790.001(13), Fla.Stat. (1977).


author: PER CURIAM.

text:
    FORT PIERCE HOTEL, INC., a Florida Corporation, and Francis W. Fennimore, Appellants, v. RIVERHOUSE CORPORATION, a Florida Corporation, Appellee.
    No. 79-1643.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearing Denied April 24, 1981.
    J. Stephen Tierney, III of Neill Griffin Jeffries & Lloyd, Fort Pierce, for appellants.
    Ben L. Bryan, Jr., Fort Pierce, for appel-lee.
   PER CURIAM.

Affirmed. See, Besett v. Basnett, 389 So.2d 995 (Fla.1980); see also, Joiner v. McCulIers, 158 Fla. 562, 28 So.2d 823 (1947).

DOWNEY, MOORE and HURLEY, JJ., concur.


author: MOORE, Judge.

text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. Linda Pauline TROUTMAN, as Personal Representative of the Estate of James Oliver Troutman, Jr., deceased, Appellee.
    No. 80-43.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1981.
    Rehearing Denied May 4, 1981.
    George W. Wright, Jr., of Kelly, Black, Black, Wright & Earle, P. A., and Steel, Hector & Davis, Miami, for appellant.
    Stephen J. McDonald of Hodges, Gossett, McDonald & Wakefield, P. A., Hollywood, and Sheldon J. Schlesinger of Simons & Schlesinger, P. A., Fort Lauderdale, for ap-pellee.
   MOORE, Judge.

This wrongful death action was commenced in Broward County, Florida. The defendant, Florida Power & Light Company, appeals from an order denying its motion for change of venue to Dade County, Florida.

Section 47.122, Florida Statutes (1979) permits the trial court, in the exercise of sound discretion, to change venue for the convenience of the parties or witnesses, or in the interest of justice. We find that the trial court abused its discretion in denying the motion for a change of venue and we reverse.

The undisputed facts are that the deceased and his family had lived in Dade County for approximately ten years. The accident which allegedly gave rise to the wrongful death occurred in Dade County. A Dáde County fire rescue unit initially treated the deceased. The decedent was taken to a hospital in Dade County. Eleven of the twelve Florida Power and Light Company employees who are potential witnesses reside in Dade County. The records involving the Florida Power & Light Company facilities at the accident scene are maintained in Dade County.

Florida Power and Light Company maintains an office in Broward County, Florida and the plaintiff’s attorneys maintain their principal office in Broward County. These, however, are the only contacts which this case has with Broward County.

In Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976), suit was commenced in Orange county. The only connection with Orange County was the presence of a Hertz agent. We held that it was an abuse of discretion to deny a motion to transfer venue to Jackson County where the subject accident occurred, most witnesses resided, some medical treatment was administered, and the investigation took place. Similarly, on analogous facts, we conclude that the trial court abused its discretion by denying the motion to transfer venue in this case. See also, Kelly-Springfield Tire Company v. Moore, 355 So.2d 451 (Fla. 3rd DCA 1978); Peterson, Howell & Heather v. O’Neill, 314 So.2d 808 (Fla. 3rd DCA 1975).

Consequently, the order is reversed and this cause is remanded for entry of an order transferring venue to Dade County, Florida.

REVERSED AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.


author: BASKIN, Judge.

text:
    Arthur L. HIESTAND and Elaine D. Hiestand, Appellants, v. Martha GEIER, Appellee.
    Nos. 79-1048, 79-1301.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 28, 1981.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul Siegel, Miami, for appellants.
    David D. Phillips, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Martha Geier brought an action against Arthur Hiestand and Elaine Hie-stand seeking imposition of a resulting trust on a note and mortgage which secured the balance of the purchase price in the sale of Sun State Oil Company to Harry Joseph Barkett. At issue was her agreement to purchase from the Hiestands half of Sun Oil’s property and stock for $57,000. She contended that she owned half of Sun State Oil Company and was therefore entitled to receive half the proceeds upon its sale. The trial court rejected the Hiestands’ response that Mrs. Geier had not paid $57,000, but instead had loaned Mr. Hiestand or the company $42,074.88 and had been fully reimbursed. The trial court ruled that Mrs. Geier had, by clear and convincing evidence, established her entitlement to a resulting trust in half the sale proceeds and later awarded her attorneys’ fees. Whether “clear and convincing evidence” constitutes the appropriate burden of proof to establish a resulting trust is the issue we now consider. We hold that “clear and convincing evidence” is the correct burden of proof. Since we also hold that the final judgment is supported by clear and convincing evidence, we affirm; however, we reverse the award of attorneys’ fees as they are not authorized either by contract or statute.

In an attempt to raise money to cover debts owed to Internal Revenue Service incurred by Sun State Oil Company, the business founded by Arthur and Elaine Hie-stand, Arthur Hiestand decided to sell company owned assets or property. In consideration of Martha Géier paying IRS $16,052 covering Hiestand’s obligation to IRS, deeds were executed from Arthur and Elaine Hie-stand and Sun State Oil Company to Arthur Hiestand and Martha Geier. The deeds were never recorded. A letter evidenced Mrs. Geier’s agreement to pay $57,000.

3 October 1967
Mr. A.L. Hiestand
1099 N.E. 89th Street
Miami, Florida
Re: Sale of Real Property and Stock to Mrs. Geier
Dear Art,
In accordance with your request, I have reviewed your proposed sale to Mrs. Geier and would like to make the following recommendations.
1) The Selling Price of the land held personally by you and Elaine should be sold for $31,500.00. This represents approximately one-half of the appraised valuation of the property by Harry Piep-gras. The terms would be all cash subject to Mrs. Geier assuming one-half of the existing mortgage on the property or approximately $27,300.00 to you....
2) The selling price of a 50% interest in the stock of Sun State Oil Co. Inc., would be $25,500.00 ...”

The company, which had dissolved, was incorporated as a new company under the same name. Arthur Hiestand owned fifty percent, Martha Geier forty-eight percent, and her nephew two percent.

Although books were kept reciting monies paid by Martha Geier over a period of time, a factual dispute arose as to the amount she actually paid. At trial, Martha Geier testified that she had paid “in the neighborhood of around sixty-three thousand and some odd dollars.” A list of deposits she made was introduced in evidence. Arthur Hiestand admitted she had paid, either to the company or the corporation, $42,074.88.

Arthur Hiestand contended the payments from Martha Geier were loans and that she failed to pay the full purchase price of $57,000. In support of his contention, he testified that he had paid capital gains taxes on the entire sale proceeds and argued that since checks he wrote to her after the sale were marked loans, the evidence was insufficient to support her argument. When Sun State Oil Company was sold to Harry Barkett for $175,000, the proceeds of the sale were divided until Martha Geier received slightly more than she had advanced. Mrs. Geier argued that Arthur Hiestand had told her she would receive the proceeds of the sale to Harry Barkett when she gave him abstracts on the property and the corporate seal. Arthur Hiestand, on the other hand, claimed that he told Mrs. Geier he would divide the proceeds of the sale pending settlement of the issue until the funds she advanced had been recovered. According to Martha Geier, a resulting trust arose by virtue of the agreement between Geier and Hiestand to sell to Barkett upon the subsequent closing of the transaction and taking back of the mortgage. After considering the testimony and arguments presented by the parties, the trial court ruled:

The purchase price agreed between the parties was reasonably related to the book value of the corporation and the appraiser’s report. All papers effectuating the transfer of the real and personal property were executed pursuant to the intent of the parties in September of 1967. It is uncontroverted that substantial payments were made by the Plaintiff on behalf of the defendant, as evidenced by the ledger sheet marked into evidence as Plaintiff’s Exhibit 9.
The Defendant, Arthur Hiestand, testified under oath that his understanding of the escrow letter was to ‘get rest of $57,-000.00 before that was all wound up.’
Time for performance was not specified in the escrow letter or executed documents. The Defendants’ contention that $57,000.00 in [cash] was to be paid to him, is unrealistic, and strains the imagination of this Court to put such an interpretation on the intent of the parties to this transaction.
The Court, having weighed the testimony and believability of the witnesses and parties, that the payments by the Plaintiff, made to the Defendant, or on his behalf, or for the benefit of the corporation, were in excess of the agreed upon purchase price; that said consideration was made timely and within the terms and conditions of the agreement and intent of the parties. The Court further finds that the actions of the Defendant, subsequent to September, 1967, reaffirmed his intent to sell one-half of the property to the Plaintiff. The notations on the cheeks paid to Mr. Geier [sic] are self-serving and have no legal effect.
The parties did not ask for an accounting, and the allegations of the Defendants that the Plaintiff did not have sufficient funds to pay the monies for the purchase price, and further that the Plaintiff received back all monies advanced. The Court will not go into the matter of the monies each of the parties deposited or withdrew from the corporation; nevertheless, the Court does find that the Plaintiff’s testimony, and the exhibits in evidence, support the allegations of the Plaintiff by the greater weight of the evidence.
The Court has not ignored the testimony of the accountants or the income tax returns in evidence, as substantiating Defendants’ contentions; however, the review of the journal, returns, checks, loan applications and other financial matters regarding the corporation, do not substantiate the parties intent or method of operation as outlined by the returns.
The Court finds as a matter of law and fact that the Plaintiff has established, by clear and convincing evidence, that the Plaintiff is entitled to a resulting trust in the proceeds from the sale of property (both real and personal) to Harry Barkett from the Defendants; the Plaintiff, Martha Geier, owning one-half of said property, by operation of law, on or about September, 1967.
WHEREFORE, it is Ordered and Adjudged as follows:
1.The Plaintiff, Martha Geier is one-half owner of the note and mortgage (Plaintiff’s Exhibits 29 & 30) wherein Harry Barkett is the mortgagor-[payor]t2] and Arthur L. Hiestand and Elaine D. Hiestand, his wife, are the mortgagees-[payees],® dated August 31,1970, recorded in Official Records Book 6962 at Page 741, Dade County, Florida.
2. The assessment of costs and attorney’s fees are reserved for subsequent hearing.
3. The trustees appointed by Order of Court dated February 22, 1977 shall file an accounting of monies held and/or disbursed by them within 15 days of this judgment, (emphasis supplied).

Our resolution of this appeal has required us to review existing law relating to the method of proving a certain type of trust, a resulting trust. Trusts may be express or implied. Whereas express trusts state the intent of the parties, implied trusts lack the expression of the parties’ intentions. They must be proved to exist as resulting trusts or constructive trusts from the evidence presented to the court. In the case under review, the object of our attention is a pro-rata purchase-money resulting trust. See Merschat v. Merschat, 1 Ill. App.2d 429,117 N.E.2d 868 (1954); Restatement (Second) of Trusts § 454 (1959).

The requisite burden of proof necessary to establish a resulting trust has been considered on many occasions. Because the intent of the parties must be established from parol evidence, courts have demanded more than a mere preponderance of the evidence. Collected in 89 C.J.S. Trusts § 137 (1955) are no fewer than sixty-two different descriptions of the degree of proof required. They range from “certain, definite and reliable”, Gorrell v. Gorrell, 2 N.J. Mise. 871, 127 A. 346 (1925), to “strong, unequivocal, and convincing”, Kedas v. Re-das, 342 Ill. 630,174 N.E. 894 (1931). While some courts have required the removal of all reasonable doubt, other courts have repudiated the use of a criminal burden in a civil suit. Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951) (evidence must be “clear and convincing”); Kull v. Pearl, 147 Kan. 329, 76 P.2d 790 (1938) (rejected the “so as not to leave reasonable doubt” standard in favor of “clear and convincing”); McFarland v. LaForce, 119 Mo. 585, 27 S.W. 1100 (1894) (Barclay, J. concurring) (rejecting the “beyond reasonable doubt” standard in favor of “clear and convincing”); Sise-more v. Pelton, 17 Or. 546, 21 P. 667 (1889) (rejecting “beyond a doubt” standard in favor of “clear and cogent”). Many of these jurisdictions follow the “clear and convincing” standard. Whether courts really intended to require proof beyond a reasonable doubt is uncertain. Bogert, Trusts & Trustees § 464, at 775 (2d ed. rev. 1977); 1 U.Fla.L.Rev. 97,98 (1948). It is apparent, however, that courts demand more than a mere preponderance of the evidence. Bo-gert suggests that the reasons are predicated upon a “high regard for the sanctity of land titles” and the ease with which frauds on creditors can be worked.

Although some Florida courts have required evidence to be “clear, strong and unequivocal ... ”, Grapes v. Mitchell, 159 So.2d 465 (Fla.1963); Goldman v. Olsen, 159 Fla. 435, 31 So.2d 623 (1947); Geter v. Simmons, 57 Fla. 423, 49 So. 131 (1909); Har-nish v. Peale, 386 So.2d 8 (Fla.5th DCA 1980); Jones v. Jones, 140 So.2d 318 (Fla.3d DCA 1962); Estey v. Vizor, 113 So.2d 576 (Fla.3d DCA 1959), the “clear and convincing evidence” standard is also found. Peacock v. Firman, 177 So.2d 560 (Fla.3d DCA), cert, denied, 183 So.2d 215 (Fla.1965). “Clear and convincing” is also the standard of evidence required to prove constructive trusts. Brown v. Vining, 334 So.2d 647 (Fla.3d DCA 1976); Carberry v. Foley, 213 So.2d 635 (Fla.3d DCA 1968), cert, denied 222 So.2d 750 (Fla.1969). The standard that “evidence must be so clear, strong, and unequivocal as to remove from the mind of the Chancellor every reasonable doubt as to the existence of the trust”, Goldman v. Olsen, supra at 624, is countermanded by the holding of King v. King, 111 So.2d 33 (Fla. 1959) that evidence of an implied trust must be of “clear and convincing character.”

Upon consideration of the foregoing authorities, we conclude that the purpose of requiring more than a preponderance of the evidence is to compel a degree of certainty when the parties’ conduct is the only evidence of their intent.

It appears dubious whether the courts really mean to require proof beyond a reasonable doubt. They do, however, in all probability exact somewhat stronger and clearer proof than in the ordinary equity case.... Thus Judge Pound, in Doane v. Dunham [1902, 89 N.W. 640, 64 Neb. 135, 136], after showing that the complainant has the burden of proving the payment of the price, an intent to have a trust for himself, and also of rebutting a possible inference of a gift arising from a close relationship to the grantee, said: ‘What would be sufficient to constitute a preponderance of the evidence and to sustain a judgment in an ordinary case might not suffice in another, where, in addition to the burden resting upon the plaintiff in any case, particular presumptions are to be overcome.’ And, in referring to the ‘clear and convincing’ rule, a Vermont court has said [Williams v. Wager, 1892, 24 A. 765, 64 Vt. 326, 331]: ‘Nothing more can be meant by the rule than this, that the trier of the case, whether it is the court or one of its masters, must be reasonably satisfied of the fact which the evidence tends to prove.’ And a Pennsylvania court [Epstein v. Ratkosky, 1925,129 A. 53, 283 Pa. 168, 172], agreeing with an Illinois court [.Hartley v. Hartley, 1917, 117 N.E. 69, 279 Ill. 593], concluded that ‘what that intention was may be proved by the same quantum or degree of evidence required to establish any other fact upon which a judicial tribunal is authorized to act.’ (footnotes inserted).

Bogert, Trusts & Trustees, supra § 464 at 775-76.

For these reasons, we hold that clear and convincing, the burden of proof enunciated in King v. King, supra, is the standard applicable to establish a resulting trust.

Was the resulting trust established by clear and convincing evidence? We agree with the trial court that it was. Mr. and Mrs. Hiestand conveyed the property to Mr. Hiestand and to Martha Geier, who had agreed to pay half the purchase price. Although the title remained with Arthur Hie-stand, it should have included Martha Geier. The evidence established a resulting trust in her behalf with regard to half the value of the note and mortgage resulting from the sale to Barkett by virtue of her beneficial interest.

Although in the final judgment the court at one point stated that the testimony and exhibits presented on behalf of Martha Geier supported her allegations by the greater weight of the evidence, the court went on to find as a matter of law and fact that she had established by clear and convincing evidence her entitlement to a resulting trust. The judgment, therefore, was clearly predicated upon a correct statement of the law. We agree with the trial court that the evidence supported the imposition of a resulting trust.

The trier of facts has the right to accept testimony and reject other testimony. Grapes v. Mitchell, supra. This court will not re-try questions of fact. Goldfarb v. Robertson, 82 So.2d 504 (Fla.1955); Hancock v. Piper, 219 So.2d 746 (Fla.2d DCA 1969).

Next, we consider the attorneys’ fees awarded by the trial court. Unless a contract or statute provides for attorneys’ fees, a court may not award them. Campbell v. Maze, 339 So.2d-202 (Fla.1976); Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973); Fountain-bleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla.3d DCA 1962). Since no contract or statute provided for attorneys’ fees to be awarded to Martha Geier, and since this action does not fall within exceptions permitting attorneys’ fees .in situations in which a joint venturer may recover in an action for accounting or business dissolution, A. J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (Fla.1938); Tobin v. Lef-kowitz, 367 So.2d 682 (Fla.3d DCA 1979); Cooper v. Fulton, 158 So.2d 759 (Fla.3d DCA 1963), we reverse the award.

Affirmed in part, reversed in part.

      . The appeals from both orders have been consolidated.

      . As corrected by Order Correcting Final Judgment.


author: BASKIN, Judge. SCHWARTZ, Judge

text:
    Cheryl ROBERTSON, Appellant, v. DEAK PERERA (MIAMI), INC., Appellee.
    No. 80-226.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 28, 1981.

      Alldredge & Gray and James H. Gray, Jr., Miami, for appellant.
    Heller & Kaplan and Daniel Neal Heller and Lisa H. Green and Robert Golden, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Whether a dealer in Jamaican currency who fails to warn a customer that transporting Jamaican currency into Jamaica without authorization constitutes a crime under Jamaican law is answerable for negligence, is the question raised in this appeal. Appellant contends the dealer, Deak Perera (Miami), Inc., owed her a duty to warn of the danger inherent in transporting the currency into Jamaica. The trial judge disagreed and dismissed the complaint. We agree with the trial court and affirm the dismissal of the amended complaint.

According to appellant Robertson, the currency dealer located at Miami International Airport should have known the laws of the country whose currency it sold and should have foreseen and warned her against the risk. Had that been done, she asserts, she would not have suffered the embarrassment of arrest, detention, confiscation of her belongings, trial, and sentence of one day in jail to which she was subjected as a result of transporting Jamaican currency into Jamaica.

Appellant sought to recover damages predicated upon Deak Perera’s negligence in failing to warn her of the danger. A cause of action in negligence, however, must be based upon a legal obligation for the benefit of another. W. Prosser, Law of Torts § 53 (4th ed. 1971). “Negligence in the air, so to speak, will not do.” Pollock, Law of Torts 468 (13th ed. 1920). In the absence of a duty to the plaintiff, actionable negligence does not exist. 23 Fla.Jur., Negligence §§ 9, 10 (1959).

Appellant contends that appellee’s duty stems from the contract of sale. A duty to exercise care may be created by a contract, 23 Fla.Jur., Negligence § 15 (1950), and the violation of that contractual duty may give rise to an action in tort. Here, however, appellee satisfied the contract by selling currency to appellant. No contractual violation occurred. . No other duty to appellant remained to be performed.

Next, we consider appellant’s contention that the potential or latent danger of transporting Jamaican currency into Jamaica imposed a duty to warn upon the seller. Under products liability law, a duty to warn exists only with regard to the manufacture or sale of a product which is potentially dangerous. A seller may be held liable for harm caused by a product which might reasonably have been expected to be capable of inflicting damage either by its nature or because it is defective. W. Prosser, Law of Torts § 96 (4th ed. 1971). The rule is entrenched in a long line of cases beginning with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). In the case under consideration, the money itself was not alleged to be defective or potentially dangerous, and appellant’s claim does not fall within the realm of products liability law. Appellant’s damages did not result from the use of the money, but from transporting the currency into Jamaica when such conduct was prohibited by law. We therefore reject her contention.

Affirmed.

SCHWARTZ, Judge

(dissenting).

According to the complaint, a professional foreign money trader sold Jamaican currency to the unknowledgeable plaintiff at the Miami International Airport. Even though, as common sense as well as the pleading tell us, the defendant should have known from the location of the transaction that the money was bought to take it into Jamaica, and even though it also knew or, in the exercise of its expertise, should have known that it was unlawful to do so, it failed to tell its customer that this was true. The utterly foreseeable result was that she was arrested and confined in Jamaica when she got there with the currency. The court says that our law does not entertain the possibility of the defendant’s liability under these circumstances. I totally disagree.

The majority bases its conclusion upon the non-existence of a legal “duty” imposed upon the seller of money to reveal that the purchaser, merely by possessing it, runs a known risk of criminal prosecution. By even putting the inquiry in this way, the court essentially frames the issue in terms of the result — a bootstrapping process in which courts should not indulge, at least not without acknowledging that this is being done. As Prosser says,

Th[e] concept of a relative duty is not regarded as essential by the continental law, and it has been assailed as serving no useful purpose, and producing only confusion in ours. Its artificial character is readily apparent; in the ordinary case, if the court should desire to find liability, it would be quite as easy to find the necessary “relation” in the position of the parties toward one another, and hence to extend the defendant’s duty to the plaintiff. The statement that there is or is not a duty begs the essential question— whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself. It is embedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant’s responsibility may be limited, has been devised. But it should be recognized that ‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection, [e. s.]

W. Prosser, Law of Torts, § 53 (4th ed. 1971).

On the facts before us, I think that what is therefore the real question, “whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct,” answers itself in the affirmative. There seems to be no basis whatever for insulating a defendant which has made a profit from a customer from the foreseeable consequences of its failure to reveal what it knows or should know about that very transaction.

The majority is apparently heavily influenced by the absence of a prior precedent which has imposed liability in a similar factual setting. This should make no difference. A common law duty exists when a court says it does because it thinks it should. By holding that no duty exists because no previous decision has recognized it, a court abdicates its judicial responsibility to a silent past. Holmes said that it was no less than “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” It is even more unacceptable to adopt a rule on the ground that no one since Henry IV has held to the contrary.

Furthermore, if it is of any importance, already established “duties” do indeed cover the situation at hand. In Banfield v. Add-ington, 104 Fla. 661,140 So. 893, 896 (1932), the supreme court quoted the following, admittedly conclusory, statement:

‘One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk * * * it is the duty of every artificer to exercise his art rightly and truly as he ought.’ Webb’s Pollock on Torts, pp. 533-636.

More specifically, Perera’s responsibility conceptually does not differ from the duty of the seller of any product, however non-defective or innocuous in itself, to give warning that it may cause harm to a substantial group of its users (“Jamaican money will cause harm to those who take it to Jamaica.”) and to give appropriate directions as to its proper use (“Don’t take Jamaican money to Jamaica.”). See Mathis v. National Laboratories, 355 So.2d 117 (Fla. 3d DCA 1978), and cases cited; 28 Fla.Jur. Sales § 161 (1968). The formulation of this doctrine in 2 Harper & James, Law of Torts § 28.7 (2d ed. 1956) seems to cover this case precisely:

[0]ne of the most common requirements of care is the giving of reasonable warning or instructions for safe use where the prudent maker would foresee that a condition or propensity of the product is likely not to be fully known and appreciated by those using it, and that some use to which the article is likely to be put will be unreasonably dangerous without that knowledge.

One of the strengths of the common law is said to be its ability to adjust and apply long-standing legal principles to novel situations. I fear that the court’s decision in this case casts doubt upon the accuracy of that accolade.

      . All the defendant had to do was to inform the plaintiff to purchase the currency at its own airport office in Jamaica after she arrived. In that way, Robertson would have remained free, and Perera would not even have lost the benefit of the transaction.

      . It is a moot point as to whether this is because, as Perera suggests, no one has had the unjustified gall to bring such an action, see Mims v. Mims, 305 So.2d 787 (Fla. 4th DCA 1974); because no prior plaintiff has had so imaginative a lawyer; or because no prior money changer has been so reckless with the well-being of its customers.

      . O. W. Holmes, The Path of the Law, Jurisprudence in Action (1953).


author: SCHWARTZ, Judge.

text:
    Darcell NELSON, Appellant, v. SHELL OIL COMPANY et al., Appellees.
    No. 80-460.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied May 1, 1981.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Kwitney, Kroop & Schein-berg, Miami Beach, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before HENDRY, SCWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

The plaintiff-appellant was injured by a tortious act of an employee of the OK Shell service station. We affirm the summary judgment entered for the Shell Oil Company on the ground that the operators of OK were, as a matter of law, independent contractors, rather than agents or servants of Shell, and that it was therefore not vicariously liable for the acts of the employee under the respondeat superior doctrine. Miller v. Sinclair Refining Co., 268 F.2d 114 (5th Cir. 1959); Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927); De La Torre v. Chevron U.S.A., Inc., 374 So.2d 1046 (Fla.3d DCA 1979) (per curiam), cert, denied, 385 So.2d 756 (Fla. 1980); McMillion v. Sinclair Refining Co., 236 So.2d 151 (Fla.lst DCA 1970); Drum v. Pure Oil Co., 184 So.2d 196 (Fla.4th DCA 1966); Cawthon v. Phillips Petroleum Co., 124 So.2d 517 (Fla.2d DCA 1960). As the court said in the Cawthon case, 124 So.2d at 519, the primary factor in determining the independent contractor question in a case such as this is “the right of control as to the mode of doing the work contracted for.” See generally, Mumby v. Bowden, 25 Fla. 454, 6 So. 453 (1889); Miami Herald Publishing Co. v. Kendall, 88 So.2d 276 (Fla. 1956); Variety Children's Hospital, Inc. v. Perkins, 382 So.2d 331, 335 (Fla.3d DCA 1980). On this key point of the extent of Shell’s control over OK’s method of operation on a day-to-day basis, the facts are strikingly similar to those in Ortega v. General Motors Corp., 392 So.2d 40, 42-43 (Fla.4th DCA 1980). We approve and adopt Judge Wetherington’s excellent discussion of the issue at 392 So.2d 42-43, and follow the Ortega holding that summary judgment for the putative employer was appropriately entered. On the other hand, Fernandez v. Valle, 364 So.2d 835 (Fla.3d DCA 1978), cert, denied, 373 So.2d 457 (Fla.1979), on which the appellant relies almost exclusively, is not determinative. The degree of control which could be exercised by the oil company over the operations of the station in Fernandez was markedly greater than in the case at bar.

Affirmed.


author: NESBITT, Judge.

text:
    George V. HOURIHAN and Katrina A. Hourihan, Appellants, v. GROSSMAN HOLDINGS LIMITED, Bleeman Holdings Limited, the Meridian Group Limited and Markborough Properties Limited, Appellees.
    No. 80-670.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 28, 1981.

      Wilson E. Hodge, Homestead, for appellants.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Rudolph F. Aragon, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   NESBITT, Judge.

Appellants (buyers) bring this appeal from the final judgment of the trial court which found the appellees (sellers/contractors) in breach of a contract to build a house for appellants but awarded no damages. Appellees cross-appeal from the finding that they breached the contract. We affirm the trial court’s holding as to the appellees’ breach of the contract but reverse and remand that part of the judgment which failed to award damages.

Appellants entered into a sale contract to purchase a house to be built by appellees on a particular lot. The contract provided that appellees would construct a dwelling on the lot “which is substantially the same as either the plans and specifications therefor on file at Seller’s office, or, if constructed, the model therefor located in Seller’s model area .. .. ” Prior to the commencement of the construction, the buyers learned of and remonstrated against the contractors’ plan to build the house as a “mirror image” of the plans and model shown to the buyers when they entered into the contract. Their desire that the house be constructed in accordance with the plans was so that they could obtain the optimal benefit of the prevailing winds which would minimize the need for air conditioning as well as for esthetic reasons. Nonetheless, the contractors erected a mirror image of the dwelling. The buyers then commenced this action for breach of contract. At the conclusion of the bench trial, the trial court found the builders had breached their contract by building the mirror image but denied all money damages to the buyers on the ground that the award of money damages under the circumstances would constitute economic waste and because the value of the house as constructed had enhanced substantially over the contract price.

We agree with the appellants’ contention that the trial court applied the wrong measure of damages.

In Edgar v. Hose a, 210 So.2d 233 (Fla. 3d DCA 1968), this court aligned itself with what is now complained of as being the minority view as follows:

[D]amages for a contractor’s breach of a contract to construct a dwelling, where it is not constructed in accordance with the plans and specifications, are the amount required to reconstruct it to make it conform to such plans and specifications, rather than the difference in loan or market value on the finished dwelling, since unlike a commercial structure, a dwelling has an esthetic value and must be constructed as the owner wants it, even though the finished dwelling may be just as good.

210 So.2d at 234.

The appellees insist that: (a) application of the foregoing rule violates the fundamental concept that compensatory damages are not awardable where to do so would constitute economic waste; and (b) the application of Edgar v. Hosea, supra, would require a whole or partial dismantling or reassembling of a useable building. 13 Am.Jur.2d Building and Construction Contracts § 79. In this case, the rule against economic waste has no application for at least two reasons. First, as is made plain by Section 346 of the Restatement of Contracts, the rule is applicable only to instances for “unavoidable harm that the builder had reason to foresee . ... ” [emphasis supplied] Secondly, it is clear that the rule for economic waste is applicable to commercial buildings rather than residential dwellings. Edgar v. Hosea, supra.

Moreover, in this case it is clear that the appellees/contractors may not proclaim that they substantially complied with the contract, because there was a willful and intentional failure to perform in accordance with the plans and specifications over the buyers’ protests. 13 Am.Jur.2d Building and Construction Contracts § 81; Annot., 76 A.L.R.2d 805, 823 (1961); D. B. Dobbs Law of Remedies § 12.21 at 899 (1973).

The rule in Edgar v. Hosea, to which we re-adhere, has not had the pernicious effect complained of by the building industry. We take judicial notice of the burgeoning construction of residences, notwithstanding that holding pronounced over twelve years ago. Indeed, it is our view that any other rule would be contrary to the pride of ownership that average homeowners expect when entering into what probably is the largest investment they will ever undertake—one which they may live with the greater portion of their lives.

The appellees also contend that the buyers were not damages because the house had increased in value so as to offset the damages resulting from the breach. Whether the increase is illusory, because it is purely a result of inflation, or real, because of a general increase in the value of the home, this argument cannot aid the appellees. Upon entering into the contract to purchase the home, any increase in value (or decrease, for that matter) rightfully belongs to the buyers. See, e.g., Gassner v. Lockett, 101 So.2d 33 (Fla.1958); Stupner v. Cacace, 231 So.2d 525 (Fla. 3d DCA 1970). Had the appellees constructed the house as contracted for, the buyers would have reaped the benefit of the increase in value of that home. Likewise, had the value of the home decreased, due to market conditions, the buyers would suffer the loss. Surely, the appellees do not suggest the buyers’ damages would be increased due to a drop in value. Consequently, the trial court improperly applied the increase in the value of the home to offset the damages.

The appellees/contractors have cross-appealed the trial court’s finding that they breached the contract. There is no contention that the trial court did not have competent and substantial evidence before it on which to render its decision. Instead, appellees assert that the trial court misapplied O’Neill v. Broadview, Inc., 112 So.2d 280 (Fla. 2d DCA 1959). Their reliance on that decision is wholly misplaced. There, the trier of fact found in favor of the contractor in a similar instance where it had erected a “mirror image” home on the basis that only a unilateral mistake by the buyer had occurred for which the remedy of cancellation was inappropriate. In addition, in O’Neill, there was no discussion as to the dwelling’s placement on the lot in conformity with the model.

For the foregoing reasons, the final judgment in favor of the appellants is affirmed as to the breach of the contract. The judgment with respect to the issue of damages is reversed and remanded for a new trial.

      . Buyers were shown plans whereby the master bedroom, the “Great” room, and the living room would have a southeastern exposure thereby enabling them to take advantage of the tradewinds. The mirror image faced north and allegedly blocked off the winds. Additionally, the buyers would have had a view of the residential area. Instead, they now could view the “scenic” traffic of a major artery.


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

text:
    David BEREK et al., Appellants, v. METROPOLITAN DADE COUNTY, etc. et al., Appellees.
    No. 80-839.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied May 1, 1981.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg; Rentz & Haggard, Miami, for appellants.
    Robert A. Ginsberg, County Atty. and Robert L. Blake, Asst. County Atty., for appellees.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

A jury returned a verdict in the amount of $85,000 in favor of David Berek and against Metropolitan Dade County. The trial court, pursuant to the limitation fixed by the waiver of sovereign immunity statute, Section 768.28, Florida Statutes (1979), entered judgment against the County for $50,000. Berek then moved the trial court to order the County to pay his costs of litigating the action and interest accrued after judgment. Berek’s motion was denied, and this appeal, ensued. We affirm.

Our decision turns on the construction to be given to Section 768.28(5), Florida Statutes (1979), which provides, in pertinent part:

“The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment.' Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature... . ”

The doctrine of sovereign immunity rests on two public policy considerations: the protection of the public against profligate encroachments on the public treasury, Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958), and the need for the orderly administration of government, which, in the absence of immunity, would be disrupted if the state could be sued at the instance of every citizen, State Road Department v. Tharp, 146 Fla. 745, 1 So.2d 868 (Fla.1941). The enactment in 1973 of Section 768.28(5) was a legislative declaration that the countervailing public policy of allowing citizens injured by the tortious action or inaction of the state to sue for the recovery of damages outweighed the state’s interest in not being discommoded by litigation. But at the same time the Legislature permitted the state to be sued, it chose to continue to protect against profligate encroachments on the public treasury by limiting the waiver of sovereign immunity to a specified dollar amount, $50,000.

Thus, the policy of protecting the public against profligate encroachment on taxpayers’ moneys remains in effect. We therefore must construe Section 768.28(5) in accordance with this policy and employ a rule of strict construction against waiver of immunity beyond this amount. Spangler v. Florida State Turnpike Authority, supra.

Section 768.28(5) contains no specific provision authorizing the payment of costs and interest. Compare, e. g., § 4-160, Conn. Gen.Stat. (1980) (providing that costs may be allowed against the state as the court deems just); § 34-4-16.5-17, Ind. Code Ann. (Burns 1980) (providing that state not liable for interest unless not paid in 180 days); § 143.291.1, N.C.Gen.Stat. (1980) (providing that costs may be taxed against the losing party in the same manner as any civil action). We cannot and will not infer from legislative silence the authority to make such awards.

Berek contends that Section 57.041, Florida Statutes (1979), which authorizes the recovery of costs by a party recovering judgment and contains no exception for a state or county judgment debtor, is specific authority for an award here. We reject this contention. Whatever rights of recovery against the state are given to a claimant must, in our view, affirmativély appear in the waiver of immunity statute and cannot be read into it. See Commonwealth, Department of Transportation, Bureau of Highways v. Lamb, 549 S.W.2d 504 (Ky. 1976) (in which the court construed Kentucky’s waiver of sovereign immunity statute, which provided that recovery “shall not exceed $50,000 exclusive of interest and costs,” to prevent the recovery of interest and costs despite a separate statute providing generally for recovery of interest from the date of judgment). Moreover, while Section 57.041, Florida Statutes, has been held to authorize the assessment of costs against the state and its agencies, see, e. g., Simpson v. Merrill, 234 So.2d 350 (Fla.1970), this holding is inapposite to tort claims against the state which are allowed only within the parameters of the waiver statute.

We decline to follow the holding in State, Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), that the state is liable for interest and costs beyond the $50,000 limit. In our view, the court there gave unwarranted meaning to the provision in Section 768.28, which states that “liability shall not include punitive damages or interest for the period prior to judgment.” Employing a single rule of statutory construction, expressio uníus exclusio aiterius, the court in Yant concluded from the spe-cifie exclusion of pre-judgment interest that post-judgment interest and costs, not specifically excluded, were necessarily included and recoverable. Cognizant of the fundamental rule that we must consider the statute as a whole in determining legislative intent, State v. Rodriquez, 365 So.2d 157 (Fla.1978); Wilensky v. Fields, 267 So.2d 1 (Fla.1972), we discern the Legislature’s intent to be to stringently circumscribe the authority of courts to make awards against the state. Accordingly, we construe the statute to declare that recovery of punitive damages or pre-judgment interest is always precluded, that is, even where the total recovery is less than $50,-000; and that post-judgment interest and costs are recoverable, but only to the extent that the total of the judgment for damages and the post-judgment interest and costs does not exceed $50,000. See Anderson v. State, 26 Ill.Ct.Cl. 119 (1967) (attorneys’ fees may be paid from award providing total does not exceed $100,000 statutory limit). In a word, the Legislature has said $50,000, whatever the components may be, is the most the Legislature will permit a court to award a claimant. Abiding by this dictate, we affirm.

Affirmed.

SCHWARTZ, Judge

(dissenting).

I would follow State, Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978) and State, Department of Transportation v. Knowles, 388 So.2d 1045 (Fla. 2d DCA 1980) and reverse. In my view, the authorization of the recovery and payment of a $50,000 judgment necessarily carries with it the obligation to pay both the costs required to secure that judgment as mandated in all actions at law by Section 57.041, Florida Statutes (1979), see, Kendall East Estates, Inc. v. Banks, 386 So.2d 1245, 1247 (Fla. 3d DCA 1980), and interest on that amount under Section 55.03, Florida Statutes (1979), which likewise has general application. See, Florida Insurance Guaranty Association v. Gustinger, 390 So.2d 420, 421, n.2 (Fla. 3d DCA 1980). The majority’s position on the latter point permits unlimited delay in the satisfaction of a duly entered judgment without any adverse effect whatever upon the judgment debtor. I cannot believe that the legislature intended any such result.

      . To the extent that State, Department of Transportation v. Knowles, 388 So.2d 1045 (Fla. 2d DCA 1980), follows Yant in this regard, we decline to follow it as well. The separate holding in Knowles that a single claimant can recover more than $50,000 where there is more than one claimant and the total claims do not exceed $100,000, involves a construction of a distinct clause of Section 768.28, which we are not asked to construe. See also Department of Health and Rehabilitative Services v. McDou-gall, 359 So.2d 528 (Fla. 1st DCA 1978). If the separate holding in Knowles is correct, then the cost award there of $741.75, still within this $100,000 limit, would be permissible under our reading of the statute.

      . In our view, the rule of statutory construction employed in Yant eviscerates the manifest legislative intent, see United States v. Insco, 496 F.2d 204 (5th Cir. 1974), and, moreover, ignores the competing rule that waiver of immunity statutes are to be strictly construed. See Span-gler v. Florida State Turnpike Authority, supra; Holt v. City of Bloomington, 70 Ind.Dec. 221, 391 N.E.2d 829 (1979); State v. Scott Construction Co., 97 Ind.App. 652, 174 N.E. 429 (1931) (in the absence of specific authority, interest not recoverable against sovereign; no mention of provision excluding only recovery of punitive damages); Commonwealth, Department of Transportation, Bureau of Highways v. Lamb, supra (interest and costs not recoverable against sovereign; no mention of provision excluding only recovery for pain and suffering).

      . In arriving at this conclusion, we do not rely, as did the court below, on Metropolitan Dade County v. Espinosa, 362 So.2d 1068 (Fla. 3d DCA 1978). The County argues that our decision in Espinosa, affirming without opinion a lower court ruling denying a claim identical to Berek’s, is controlling. Berek argues that the affirmance in Espinosa has no precedential effect. On this score we agree with Berek. We do not regard a per curiam affirmance without opinion as having precedential significance for other cases, see Jenkins v. State, 385 So.2d 1356 (Fla. 1980); Greene v. Massey, 384 So.2d24 (Fla.1980), notwithstanding that such an af-firmance may establish the law of the particular case. But see Golden Loaf Bakery, Inc. v. Charles W. Rex Construction, Inc., 334 So.2d 585 (Fla.1976) (England, J., concurring).

      .Our reading of the statute is compatible with its further provision that judgments in excess of the statutory limits may be paid in part or in whole only by further act of the Legislature. This allows the Legislature, not a court, to determine whether further encroachment on the public treasury is warranted in a particular case. The “inequity” of permitting a court to award interest and costs to claimants whose judgments are below $50,000, but precluding such an award where the judgment is beyond that amount, does not differ from the “inequity” created when a claimant whose actual damages are below $50,000 is fully compensated, while one whose actual damages far exceed the statutory limits is restricted to a recovery of $50,000. We read the statute as a legislative effort to permit compensation of tort claimants against the state to the extent set forth, not an effort to put tort claimants on an equal footing. Any inequities which arise are the business of the Legislature, not the courts.
      The concern expressed by Judge Schwartz in his dissent, that the effect of our holding is that the state and its agencies can delay payment on a judgment with impunity, fails to recognize that the state is a unique judgment debtor. A judgment creditor may not obtain a lien against or levy execution against the property or funds of a state, county or municipal corporation in the absence of express authorization. See 30 Am.Jur.2d, Executions § 195-201 (1967); Meri-wether v. Kilbee, 154 Fla. 631, 18 So.2d 534 (1944); City of Bradenton v. State ex rel. Oliver, 117 Fla. 578, 158 So. 165 (1935); City of Coral Gables v. Hepkins, 107 Fla. 778, 144 So. 385 (1932); State ex rel. Montgomery v. City of Fort Pierce, 106 Fla. 845, 143 So. 733 (1932); Special Tax School District No. 1 of Palm Beach County v. Smith, 61 Fla. 782, 54 So. 376 (1911); § 55.11, Fla.Stat. (1979). A creditor must depend on the willingness of the state and the availability of funds if he is to collect his judgment at all. It is these factors, not compulsion, that cause the state to pay judgments, and will likely cause the state to pay them promptly.

      . I am particularly unpersuaded by the court’s disagreement with the stress given by the Yant court upon the statute’s specific exclusion of pre-judgment interest. If, as the majority says, the allowance of any interest whatever must be affirmatively provided for, I do not understand why the legislature found it necessary or appropriate expressly to exclude only pre-judgment interest, which is almost never allowed in a tort case, anyway, particularly when, in contrast, post-judgment interest is generally assumed and is statutorily provided to attach to every judgment. The answer is, I think, just what Yant concluded, that the exclusion of pre -judgment is a strong indication of the legislative desire to permit post -judgment interest.
      Moreover, I believe that, as a general principle of Florida appellate decision-making, we should ordinarily give persuasive effect to decisions of our compatriot courts of appeal. In a case such as this, in which everything else is at least equal, I would prefer to follow the first and second districts on the precise issue of Florida statutory law before us, instead of the courts of Kentucky and Illinois on questions which are necessarily only analogous.


text:
    DENES AND DENES & ASSOCIATES, INC., Appellant, v. WALTER E. HELLER & CO. OF FLORIDA, INC. et al., Appellee.
    Nos. 80-1114, 80-1115.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 28, 1981.
    Ainslee R. Ferdie, Coral Gables, for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz, Fort Lauderdale, Heller & Kaplan, Miami, and Frank Sinagra, Fort Lauder-dale, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Appellant has failed to demonstrate any error in the court’s entering judgment for appellees Heller, Flick and Garcia declining to impose an equitable lien and to award equitable relief. § 95.11(5), Fla.Stat. (1975); Kimbrell v. Fink, 78 So.2d 96 (Fla.1955); Roehner v. Atlantic Coast Development Córp., 356 So.2d 1296 (Fla. 4th DCA 1978).

Taxing of costs for a copy of deposition is error. Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952); Gator Shoe Corp. v. Taudte, 384 So.2d 1344 (Fla.3d DCA 1980); Cohen v. Dennis, 209 So.2d 465 (Fla.3d DCA 1968).

The award of attorney’s fees pursuant to Section 57.105, Florida Statutes (1978) is not merited under the facts of this case. Such an award is also inconsistent with a prior ruling by the court on appellees’ motion for summary judgment wherein it was expressly held that there were material issues of fact or law. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). See also, T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (Fla.3d DCA 1980).

Affirmed in part, reversed in part.


text:
    J. L. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1294.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied May 1, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

J.L.B. appeals from an adjudication of delinquency arising from a determination that he was guilty of grand theft. We reluctantly reverse on the holding that this finding is not supported by the record.

This is another in the apparently endless series of cases involving the legal sufficiency of the evidence to link the particular defendant or juvenile respondent with a crime perpetrated by another. In this instance the issue arises in the following simple and all-too-familiar context. The victim was entering her vehicle in a parking lot in the city of Miami when she saw two juveniles, one of whom was J.L.B., heading towards her car. After she was seated, and while she was talking to a passenger, one of the boys — she could not say which one— reached through the window and grabbed a chain and medallion from her neck. Both boys immediately fled the scene. J.L.B. was found soon afterwards hiding under a bus.

Since no one could identify the one juvenile who took the jewelry, it must of course be assumed that it was not the present appellant. K. W. U. v. State, 367 So.2d 647 (Fla. 3d DCA 1979), cert, denied, 378 So.2d 349 (Fla.1979). J.L.B. could be found guilty, therefore, only as an aider or abettor of the thief. That conclusion may not lawfully be drawn from the evidence. To reverse the order of emphasis we gave to the elements of aiding and abetting in J. JET. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla. 1980), such a finding requires not only that the defendant intended to assist in committing the crime, but that he in fact participated or aided in its perpetration. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933). In this case, even assuming the adequacy of the evidence concerning J.L.B.’s evil intent, a point we need not decide, there is no showing that he carried out that intent by actually doing anything which assisted his companion in the offense. It is a “basic premise of Anglo-American criminal law .. . that no crime can be committed by bad thoughts alone. Something in the way of an act . .. is required too.” W. LaFave & A. Scott, Handbook on Criminal Law, § 25, at 178 (1972). So far as this record demonstrates, J.L.B. simply walked to the car along with an acquaintance, stood there while the crime took place, and ran off after it occurred. This is simply insufficient to establish the overt assistance or participation which is required to justify an adjudication as an aider and abettor. D. M. v. State, 394 So.2d 520 (Fla. 3d DCA 1981); P. R. v. State, 389 So.2d 1078 (Fla. 3d DCA 1980); J. O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980); J. H. v. State, supra (alternative holding), and cases cited. Under the law we are bound to apply, see, D. M. v. State, supra; Ruiz v. State, 388 So.2d 610, 613 (Fla. 3d DCA 1980), review denied, 392 So.2d 1380 (Fla. 1981), J.L.B. must be discharged.

Reversed.

      . On the intent issue, the case is arguably distinguishable from J. H. v. State, supra, on the grounds that, in this case, the two boys were seen together walking directly towards the victim and the scene of the offense (which was not on a public sidewalk) before it was committed, and that, unlike J.H., the respondent here did not immediately cease his flight and inform the person who apprehended him that he had done nothing wrong.

      . Compare the holdings in Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972), and Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968), where the defendants actually assisted the perpetrator by driving him to or from the scene, but in which the requisite showing of advance knowledge and intent was not present.
      It may be observed that the actual participation element is much more difficult to prove when, as in the numerous juvenile cases, including this one, in which the issue has presented itself in this court, the offender and his alleged accomplice are on foot.


text:
    OLD REPUBLIC INSURANCE COMPANY, Appellant, v. Katherine G. CARAVASIOS, Appellee.
    No. 80-1343.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 28, 1981.
    John F. McMath, Miami, for appellant.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Morton v. Ansin, 129 So.2d 177 (Fla.3d DCA 1961).


author: DANIEL S. PEARSON, Judge.

text:
    CITIBANK, N.A., Petitioner, v. Honorable Edward S. KLEIN, as Circuit Judge for the 11th Judicial Circuit, Dade County, Florida and Ira Kinsler, Respondents.
    No. 81-134.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Rehearing Denied April 28, 1981.
    Smathers & Thompson and John H. Schulte, Miami, and Landon dayman, Coral Gables, for petitioner.
    Stanley H. Apte, Miami Beach, for respondents.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Kinsler sued in the Dade County Circuit Court to, inter alia, enjoin a Miami area bank, issuer of a letter of credit, from paying the beneficiary of this letter of credit, Citibank, N.A., a New York based national banking association. Citibank, N.A. moved to dismiss, asserting that the Circuit Court had neither personal jurisdiction over it, nor in rem jurisdiction over the letter of credit. Before this motion could be heard, Kinsler voluntarily dismissed his action against Citibank, N.A. His action against the issuer continued, and the Circuit Court thereafter temporarily enjoined the issuer from honoring the letter of credit. Citibank asks us to issue our writ prohibiting the respondent judge from conducting further proceedings in respect to this letter of credit and to vacate the temporary injunction.

We grant the relief sought by Citibank, N.A. upon a holding that (1) in the absence, as here, of personal jurisdiction over the holder-beneficiary Citibank, N.A., in order to acquire in rem jurisdiction, it was necessary that the letter itself, at all times located in New York, be within the trial court’s jurisdiction, Tueta v. Rodriguez, 176 So.2d 550 (Fla. 2d DCA 1965); (2) the holding of Tueta v. Rodriguez, supra, that the relationship between the issuer of an irrevocable letter of credit and the beneficiary of that letter is not that of debtor and creditor so as to give the court where the issuer is located jurisdiction of a res upon which its judgment could operate, controls the present case, notwithstanding the subsequent enactment of Section 675.-114(2Xb), Florida Statutes (1979), which authorizes “a court of appropriate jurisdiction” to enjoin the honoring of a draft under circumstances arguably similar to those alleged by Kinsler, since this statute, while authorizing the remedy, does not purport to determine which court is one of appropriate jurisdiction, a determination made in Tueta v. Rodriguez, supra, see Murray, Negotiable Instruments, 20 U.Miami L.Rev. 225, 228 (1965); (3) Kinsler’s reliance on Dynamics Corporation of America v. Citizens and Southern National Bank, 356 F.Supp. 991 (N.D.Ga.1973), is misplaced, since in Dynamics, as distinguished from the present case, the beneficiary of the letter of credit raised no issue of the court’s jurisdiction and, in fact, submitted itself to the jurisdiction of the court by intervening in the action.

Accordingly, we vacate the trial court’s order of January 14, 1981, temporarily enjoining the issuing bank from honoring the letter of credit. We hold further that the respondent judge is without jurisdiction to further proceed in this cause so as to affect the rights of Citibank, N.A. under the letter of credit. We are confident that the respondent judge will be guided by our opinion without the necessity of formally issuing a writ of prohibition.

      . Section 675.102(3), Florida Statutes (1979), specifically states:
      “This chapter [Article 5] deals with some but not all of the rules and concepts of letters of credit as such rules or concepts have developed prior to this act or may hereafter develop. The fact that this chapter states a rule does not by itself require, imply, or negate application of the same or a converse rule to a situation not provided for or to a person not specified by this chapter.”
      The holding in Tueta is, in our view, exactly the type of interstitial rule of law envisioned by Section 675.102(3).