text:
    John LOMELO, Jr., Mayor of the City of Sunrise, Appellant, v. CITY OF SUNRISE, Florida, a municipal corporation, and Dan Pearl, William “Bill” Colon, Lawrence “Larry” Hoffman, Steven W. Effman, and John Montgomery, as members of and constituting the City Council of the City of Sunrise, Florida, Appellees.
    No. 81-2249.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 12, 1983.

      David R. Mackenzie, Lauderhill, for appellant.
    Philip S. Shailer of Shailer, Purdy & Jolly, Fort Lauderdale, for appellees Dan Pearl, William “Bill” Colon, Lawrence “Larry” Hoffman, Steven W. Effman and John Montgomery, as members of and constituting the City Council of the City of Sunrise, Fla.
   HERSEY, Judge.

The mayor of the City of Sunrise, Florida, appeals from a declaratory judgment which determined that the city had no duty to pay attorneys’ fees incurred by the may- or in his successful defense against a felony indictment.

The indictment charged the mayor with corruption by threat against a public servant. Appellant’s brief succinctly states the circumstances which led to the indictment.

Appellant testified that he happened to be at the Sunrise Musical Theatre when he observed police officers of the City of Sunrise arresting a young man the Mayor recognized and knew to be a resident of the City of Sunrise.

Appellant then testified that he spoke to the lieutenant in charge of the detail and asked if the boy could be released in his father’s custody without having to post a FIVE THOUSAND ($5,000.00) DOLLAR bond.

The indictment alleges that at this point threats were made by Appellant to secure the release of the young man.

The Appellant went on to testify that he then went to the police station and called the City Attorney of the City of Sunrise to ask if he (Appellant) had the authority to release him on his own recognizance through his father.

Based upon his conversation with the City Attorney, the Appellant, as Mayor of the City, released the young man on his own recognizance.

Subsequent to these events the Appellant was indicted.

The Appellant testified that pursuant to the Charter of the City of Sunrise that the Chief of Police reports directly to him.

Appellant, after indictment, sought to have the City Attorney of the City of Sunrise represent him but this was not possible as he had been suspended by the Governor after the indictment was returned. As a result, Appellant had to secure private counsel.... [T]he City Council of the City of Sunrise refused to pay the bill for attorneys services rendered.

Concerning this incident, the indictment set out that appellant did, among other things:

1. Inquire of Lt. Ernest Howey as to whether any “courtesy” could be extended to Michael Bradshaw;
2. Request that Michael Bradshaw be released from custody and the charges be voided or words to the same tenor and effect;
3. Ask if Lt. Ernest Howey would take care of this or would it be necessary to go to someone higher;
4. After being advised by Lt. Ernest Howey that he (Howey) was not the arresting officer but that he would speak with Officer Roberts and support Roberts in any decision he made, did remind Lt. Howey that he, (John Lomelo, Jr.) has a long memory; and
5. That he, (John Lomelo, Jr.) could take care of his (Lt. Howey’s) family.

Appellant was acquitted on these charges.

The parties agree that no state statute, city ordinance or provision of the city charter authorizes or requires reimbursement for attorneys’ fees under these circumstances. However, appellees, in their brief, concede that:

[A] public officer is entitled to a defense at the expense of the public in defending suits or misconduct charges while performing his public duties and while serving a public purpose. Appellees take no issue with said principle; ....

We think this accurately reflects the present status of the law. It is settled that a municipal corporation has the right and power to retain and pay private counsel to protect the interests of the municipality and that invasion of those interests may take the form of an attack on one or more public officers. City of North Miami Beach v. Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert. discharged, 227 So.2d 33 (Fla.1969). In Markham v. State, Department of Revenue, 298 So.2d 210, 211 (Fla. 1st DCA 1974), the court explicitly states:

It is a fundamental concept of the law in Florida and elsewhere that public funds may not be expended for other than public purposes. Public officers are, of course, entitled to a defense at the expense of the public in a law suit arising from the performance of the officer’s official duties and while serving a public purpose. Duplig v. City of South Daytona, Fla.App. (1st) 1967, 195 So.2d 581.

It is neither remarkable nor legally significant that this rule evolved from cases in which the issue is posed in terms of the propriety, after the fact, of municipalities paying legal fees incurred by public officials. The rule and its rationale apply as well pre-payment as post-payment. Thus Shuler v. School Bd. of Liberty County, 366 So.2d 1184 (Fla. 1st DCA 1978), involves as does our case the refusal of the body politic (a school board) to employ and pay for an attorney to represent a public official (the superintendent). Shuler exemplifies an application of the rule discussed in these earlier cases and imposes a “duty to pay.”

A recent pronouncement of the Third District Court of Appeal on this issue in City of Hialeah v. Bennett, 376 So.2d 483 (Fla. 3d DCA 1979), is worth repeating here:

Affirmed on the authority of the rule stated as follows in Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 676, 278 N.E.2d 908, 910 (1972):
[A] municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act or was incapable of, or was disqualified from, acting.
Accord, Waigand v. City of Nampa, 64 Idaho 432, 133 P.2d 738 (1943); Braslow v. Barnett, 74 Misc.2d 26, 343 N.Y.S.2d 819 (Dist.Ct.1973); Krahmer v. McClafferty, 282 A.2d 631 (Super.Ct.Del.1971); see City of North Miami Beach v. Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert. disch., 227 So.2d 33 (Fla.1969); cf. Shuler v. School Board of Liberty County, 366 So.2d 1184 (Fla. 1st DCA 1978), cert. dismissed, 368 So.2d 1373 (Fla.1979).

Subsequently the First District Court of Appeal applied the principle in similar fashion. Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981).

These cases establish that a municipal corporation or other public body is obligated to furnish or pay fees for counsel to defend a public official subjected to attack either in civil or criminal proceedings where the conduct complained of arises out of or in connection with the performance of his official duties. This obligation arises independent of statute, ordinance or charter. It is not subject to the discretion of the keepers of the city coffers.

The revised home rule charter of the City of Sunrise provides, in pertinent part:

Section 4.04 Mayor: Powers and Duties
(1) The Mayor shall serve in such capacity on a full-time basis.
(2) The Mayor shall serve as Chief Executive Officer of the city and shall see that the provisions of the charter, ordinances, laws and rules of the city are complied with and enforced and may use the police power of the city for such purposes and shall see that peace, good order, safety and good morals are preserved within the city.
Section 4.04 Charter Officers: City Clerk, Legal Officer, Chief of Police
(4) Chief of Police. The Chief of Police shall be the head of the Police Department and shall be responsible to the Mayor, and shall be responsible for the prevention and control of crime and safety and security of the city and its citizens.

John Lomelo, Jr., as a private citizen, had no right or authority to interfere with a lawful arrest in progress. In his capacity as mayor, however, he possessed authority to release an arrestee on his own recognizance or otherwise. Thus it was as mayor that he sought and effectuated the arres-tee’s release. The indictment alleged that in so doing he violated a criminal statute. Obviously he had no right to threaten the officer or the officer’s family. Such conduct would constitute a gross abuse of his power and office. However, he was found innocent of that charge. The remaining facts indicate that he obtained an arrestee’s release by virtue of his power as mayor granted in the city charter. Thus he clearly acted in his official capacity and such actions were authorized by the public body. If the city council was or is displeased with his activities other remedies are available. They may not abandon his legal defense simply because they disapprove of his actions.

The trial court found no abuse of discretion in the refusal of the City Council of the City of Sunrise to pay appellant’s attorneys’ fees. Since we conclude that appellees have no such discretion under these circumstances, we reverse and remand for the entry of a final judgment requiring payment by the City of Sunrise of the legal fees in issue.

REVERSED AND REMANDED WITH DIRECTIONS.

BERANEK and DELL, JJ., concur.


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    MAJESTIC WINDOW SHADES, INC., a Florida corporation; Frank Cohen, David Cohen and Edward Brenner, Appellants, v. Anthony CAMPAGNA and Carol Campagna, his wife, Anthony Campagna Enterprises, Inc., a Florida corporation, d/b/a Window Treatments by Jason; and Eric Window Products, Inc., a Florida corporation, Appellees.
    No. 82-792.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 19, 1983.
    Robert D. Scharf of Rubinstein & Kornik, P.A., Miami, for appellants.
    Kenneth D. Stern of Lavalle, Wochna, Rutherford & Brown, P.A., Boca Raton, for appellees.
   ANSTEAD, Judge.

This is an appeal of an order denying appellants’ motion to dismiss or transfer on the grounds of improper venue. This case represents an excellent example of the degree to which the process of appellate review is enhanced when the trial court sets out its findings of fact and conclusions of law in a written disposition of the cause. We find no error in the findings and conclusions of the trial court and accordingly affirm for the reasons set out in the order on appeal.

LETTS, C.J., and BERANEK, J., concur.


author: JOANOS, Judge.

text:
    Nathaniel Charles SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. AN-413.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Nathaniel Charles Scott, pro se, appellant.
    No appearance for appellee.
   JOANOS, Judge.

In a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850, appellant asserted four errors:

(1) conviction obtained using evidence obtained pursuant to an unlawful arrest;
(2) conviction obtained by violating privilege against self-incrimination;
(3) denial of effective assistance of counsel;
(4) plea of guilty involuntarily entered, without understanding of consequences.

The first two issues could have been raised on direct appeal and are not properly addressed in a motion for post-conviction relief. See Goode v. State, 403 So.2d 931 (Fla.1981); Kilpatrick v. State, 422 So.2d 934 (Fla. 1st DCA 1982). Questions regarding the effectiveness of assistance of counsel and the voluntariness of a guilty plea are properly raised in a Rule 3.850 motion, however, in denying the motion the trial court attached portions of the record which show conclusively that appellant is not entitled to relief.

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


text:
    McDONALD’S and G.A.B. Business Services, Inc. and National Union Insurance Company, Appellants, v. Betty WEILER, Appellee.
    No. AO-115.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Rehearing Denied Jan. 11, 1983.

      John F. McMath, Miami, for appellants.
    Jerold Feuer, Miami, for appellee.
   JOANOS, Judge.

We have reviewed the record and briefs in this workers’ compensation appeal and find that there is competent substantial evidence to support the deputy commissioner’s (DC) order, except that portion awarding payment of Dr. Stillman’s and Dr. Crown’s medical bills.

The DC failed to make a determination that Dr. Stillman’s and Dr. Crown’s failure to file medical reports was excused or waived. On remand, it is necessary for the DC to determine if good cause or waiver to excuse the non-compliance with the reporting requirements of section 440.13(1), Florida Statutes (1981) existed. Otherwise, the medical bills of Dr. Stillman and Dr. Crown should be disallowed. Olson v. Wagner, 390 So.2d 1247 (Fla. 1st DCA 1980).

Accordingly, the order is AFFIRMED in part, REVERSED in part and REMANDED for proceedings consistent with this opinion.

SHAW and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    Charles W. CRISWELL and Barbara E. Criswell d/b/a Farrah’s Ltd., Appellants, v. Thomas J. BOYLE and Wanda Sue Boyle, Appellees.
    No. AJ-207.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    Douglas D. Chunn of Commander, Legler, Werber & Dawes, P.A., Jacksonville, for appellants.
    Wayne M. Singletary of Bray & Single-tary, P.A., Jacksonville, for appellees.
   PER CURIAM.

There being an insufficient record upon which to determine whether there is reversible error in the trial court’s ruling, we affirm. However, Appellants may supplement the record with those portions of the trial court’s proceedings tending to support their arguments on appeal. Fla.R.App.P. 9.200(f)(2). Such supplementation shall be done within the time allowed for a petition for rehearing.

ROBERT P. SMITH, Jr., C.J., and McCORD and MILLS, JJ., concur.


text:
    FIRESTONE STEEL PRODUCTS COMPANY OF CANADA, Appellant, v. Delores Gordon SNELL, as Personal Representative of the Estate of Richard Gordon, Appellee.
    No. 82-881.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 12, 1983.

      Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellant.
    Virgin, Whittle & Garbis and Gary E. Garbis, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The non-final order under review denying Firestone’s motions to quash service of process and dismiss for lack of jurisdiction is reversed upon a holding that the plaintiff failed to allege or prove the prerequisites to securing personal jurisdiction over Firestone under either section 48.181 or section 48.193, Florida Statutes (1981), since (1) the complaint lacks even an allegation that Firestone, a nonresident corporation, ‘operates, conducts, engages in, or carries on a business or business venture in Florida’ and that the action arises therefrom so as to authorize substituted service of process under section 48.181, National League for Nursing v. Bluestone, 388 So.2d 1090 (Fla. 3d DCA 1980); Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976); Fla.R.Civ.P. 1.070(i); and (2) the complaint likewise fails to provide any basis for jurisdiction under section 48.193 inasmuch as (a) neither the commission of the alleged tortious act [§ 48.-193(l)(b)], nor the resulting injury [§ 48.-193(l)(f) ], occurred within the State of Florida, see Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972); April Industries, Inc. v. Levy, 411 So.2d 303 (Fla. 3d DCA 1982), and (b) Firestone was not personally served with process pursuant to section 48.194 as required to confer jurisdiction under section 48.193, Underwood v. University of Kentucky, 390 So.2d 433 (Fla. 3d DCA 1980); Bradford White Corp. v. Aetna Insurance Co., 372 So.2d 994 (Fla. 3d DCA 1979).

Reversed.


text:
    Mose KING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-1064.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.

      Mose King, Jr., pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Mose King, Jr. filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 titled “Motion to Vacate Judgment and Sentence;” he signed it January 4, 1982. The court denied the motion March 10 and, pursuant to Rule 3.850, gave King fifteen days within which to file for rehearing or thirty days to appeal. King opted to file a motion for rehearing which he signed March 25; however, it was not filed with the Circuit and County Court Clerk until April 5. The trial court summarily denied this motion on April 8, but the order was not recorded until April 9, and King’s notice of appeal was recorded May 10.

Florida Rule of Criminal Procedure 3.850 provides in part:

An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for post-conviction relief shall include a statement that the movant has the right to appeal within thirty days of the rendition of the order. The prisoner may file a motion for rehearing of an order denying a motion under this rule within fifteen days of the date of service of the order.

(Emphasis supplied.) King’s motion for rehearing, signed within fifteen days of the court’s order denying his motion, was not filed with the court until April 5, twenty-six days after the order was recorded.

It has been said that “[although a motion for rehearing is authorized by Rule 3.850, it must be filed within fifteen days of the service of the order” denying the motion for post-conviction relief. Williams v. State, 392 So.2d 323, 323 (Fla. 1st DCA 1980), appeal dismissed, 399 So.2d 1147 (Fla.1981). Since King’s motion for rehearing was not filed within the fifteen days, it was untimely. Id. Therefore, the notice of appeal, which was predicated on the untimely motion for rehearing, see Southern Atlantic Construction Corp. v. First Corp. of DeSoto County, 419 So.2d 729 (Fla. 4th DCA 1982), and was recorded exactly two months from recording of the order denying the Rule 3.850 motion, also was untimely. Fla.R. App.P. 9.110(b). Thus, we dismiss King’s appeal. See Mathis v. State, 419 So.2d 774 (Fla. 1st DCA 1982).

HERSEY, GLICKSTEIN and WALDEN, concur.


author: LARRY G. SMITH, Judge.

text:
    Joyce HOPKINS, Appellant, v. E-SYSTEMS, COMMERCIAL DIVISION and Liberty Mutual Insurance Co., Appellees.
    No. AM-202.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 7, 1983.

      Philip M. Agnes, of Alexander G. Paderewski, P.A., Sarasota, for appellant.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   LARRY G. SMITH, Judge.

We affirm the order of the deputy commissioner denying workers’ compensation death benefits. The facts are that the deceased and appellant, after twenty-three years of marriage, were divorced in 1975. The divorce was occasioned by a desire to force the deceased, an alcoholic, to obtain treatment. While the treatment was in progress the couple continued to reside together on week-ends, and after the treatment was completed, they continued to live together. The deceased supported appellant, they filed joint income tax returns as husband and wife, and generally conducted themselves and held themselves out as husband and wife as prior to the divorce.

Appellant urges that the test for recovery of death benefits is whether appellant was substantially dependent upon her deceased former husband for financial support. Cases from other jurisdictions relied upon by appellants apply the test of dependency on the part of the claimant as the principle criteria for receipt of compensation in death cases. Florida’s act, on the other hand, designates specific classes of beneficiaries, and provides further that they shall be entitled to benefits only if they meet the test of dependency.

Chapter 440 does not define the term “spouse” except in Section 440.02(15):

(15) The term “spouse” includes only a spouse substantially dependent for financial support upon the decedent and living with the decedent at the time of the decedent’s injury and death, or substantially dependent upon the decedent for financial support and living apart at said time for justifiable cause.

Webster’s Third New International Dictionary (1981) defines “spouse” as, “a man or woman joined in wedlock: married person, husband, wife.” Appellant obviously cannot qualify as a legal “spouse,” although she would have been entitled to make this claim prior to January 1, 1968, the date on which the institution of common law marriage in Florida was abolished. We view this legislative expression of the public policy of the State as militating against a more expansive interpretation of the word “spouse” in the context of workers’ compensation proceedings.

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.

      .See, for example, Department of Industrial Relations v. Workers’ Compensation Appeals Board, 94 Cal.App.3d 72, 156 Cal.Rptr. 183 (1st Dist.Ct.App.1979); Parkinson v. J & S Tool Company, 64 N.J. 159, 313 A.2d 609 (N.J.1974). Appellant also relies on Burgess Construction Co. v. Lindley, 504 P.2d 1023 (Alaska 1972). However, Alaska Stat. § 23.30.265(15) defines “married” to include a person who is divorced, but is required by the decree of divorce to contribute to the support of his former spouse. In a concurring opinion, Justice Erwin criticized the majority for stretching the statutory definitions too far.

      . Compensation for death is payable “on account of dependency upon the deceased,” to the spouse, children, etc. Section 440.-16(l)(b)l., 2., and 3., Florida Statutes. See, South Florida Grassing/Risk Management Services, Inc. v. Bunns, 399 So.2d 93 (Fla. 1st DCA 1981); Lopez v. Urban League of Greater Miami, IRC No. 2-337 (1978), cert. den., 366 So.2d 883 (Fla.1978).

      . Section 440.16(6) provides:
      Relationship to the deceased giving right to compensation under the provisions of this section must have existed at the time of the accident, save only in the case of afterborn children of the deceased.

      . Section 741.211, Florida Statutes (1967).


author: HENDRY, Judge.

text:
    Lilah G. PETERS, as Personal Representative of the Estate of Fred M. Peters, deceased, Appellant, v. Stanley D. MITCHEL, M.D., Sylvan R. Lewis, M.D., and Parkway General Hospital, Inc., Appellees.
    Nos. 82-150, 82-151.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Anderson & Moss, Daniels & Hicks and Patrice A. Talisman, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Thornton & Herndon and Raymond V. Miller, Thomas R. Post, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Appellant Lilah Peters seeks reversal of two trial court orders dismissing her amended complaint joining Jeffrey Peters, minor son of Lilah and the decedent, as a plaintiff in a wrongful death action.

The original complaint by appellant as personal representative of the decedent’s estate was filed within the applicable statute of limitations. After the statutory period had run, the trial court granted appellant leave to amend to include Jeffrey’s claim, but subsequently dismissed the claim, upon separate motions by the hospital and the physicians, as barred by the statute of limitations. Appeals from the two orders were consolidated by this court.

We reverse the trial court’s orders and hold that the claim asserted in the amended complaint arises “out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading” so as to relate back to the date of the original complaint as provided in Florida Rule of Civil Procedure 1.190(c). Dye v. Houston, 421 So.2d 701 (Fla. 1st DCA 1982) (amendment joining decedent’s widow in wrongful death action after limitation period had run related back to date of original complaint); Handley v. Anclote Manor Foundation, 253 So.2d 501 (Fla. 2d DCA 1971), cert. denied, 262 So.2d 445 (Fla.1972) (amendment joining guardian of decedent’s son — same); cf. Daniels v. Weiss, 385 So.2d 661 (Fla. 3d DCA 1980) (amendment to pleading did not relate back to date of original complaint since spouse’s claim for loss of consortium, although derivative in nature, stated a separate cause of action from claim for medical malpractice); Cox v. Seaboard Coast Line Railroad Co., 360 So.2d 8 (Fla. 2d DCA 1978), cert. denied, 367 So.2d 1123 (Fla.1979) (amendment to pleading asserting minor’s own personal injuries in suit for wrongful death of his father presented new cause of action and did not relate back to date of filing of complaint). Our holding makes it unnecessary to decide whether, as appellant also contends, the amendment was filed within the statute of limitations.

Reversed and remanded with directions to proceed with the cause.


text:
    Lawrence JONES, Appellant, v. STATE of Florida, Appellee.
    No. 82-1520.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, Tom Wm. Odom, Certified Legal Intern, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Certified Legal Intern, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Breedlove, 400 So.2d 468 (Fla. 4th DCA 1981).

LETTS, C.J., and BERANEK and HERSEY, JJ., concur.


text:
    Larry Bryan CHAPPELL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-538.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ. and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Chappell was a juvenile bindover to the criminal division of the circuit court. He was charged by information with attempted first degree murder and unlawful use of a firearm in the commission of a felony. Chappell was convicted of attempted second degree murder as well as the second charged offense. He appeals his judgment of conviction, claiming that the trial court committed several errors. We reverse upon a holding that the jury received instructions in an impermissible manner.

During the course of their deliberations, the jury asked the trial court for written instructions as to the elements of first degree murder and two lesser included offenses. Defense counsel requested that either the jurors be required to rely on their memories, or that all the instructions, including those on penalties, be sent to the jury room in written form. The trial judge refused to send back the instructions on penalties, apparently because the jury had twice been orally instructed thereon. Over defense counsel’s objection, the remainder of the instructions were furnished to the jury in writing.

This procedure was contrary to Florida Rule of Criminal Procedure 3.400(c), as construed in Payne v. State, 395 So.2d 284 (Fla. 3d DCA 1981) and Morgan v. State, 377 So.2d 212 (Fla. 3d DCA 1979), cert. denied, 389 So.2d 1115 (Fla.1980). We observe that Rule 3.400(c) does not mandate that whenever a jury seeks written reinstruction it must be provided with the information requested. The rule is optional. However, when the court elects to utilize the rule, it must be literally complied with by furnishing the jurors with all the written charges concerning matters about which they have been previously instructed.

Our disposition of this issue makes it unnecessary to consider the other points raised by the appellant. The judgment and conviction are reversed and the case remanded with directions to grant the appellant’s motion for a new trial.


text:
    Gary William SAYERS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-674.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant; Gary William Sayers, in pro. per.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Although we find no merit in the appellant’s attacks upon his convictions, we do agree that the trial court erred in failing to renew the offer of assistance of counsel at the sentencing hearing. Fla.R.Crim.P. 3.111(d)(5); Carter v. State, 408 So.2d 766 (Fla. 5th DCA 1982); Baranko v. State, 406 So.2d 1271 (Fla. 1st DCA 1981); Billions v. State, 399 So.2d 1086 (Fla. 1st DCA 1981); see generally Machwart v. State, 222 So.2d 38 (Fla. 2d DCA 1969).

Accordingly, the judgments of conviction are affirmed, the sentences imposed are vacated, and the cause remanded to the trial court for resentencing, prior to which an offer of assistance of counsel shall be made by the trial judge. Nothing in this opinion prohibits the trial court from again sentencing the appellant to life imprisonment on Count I and twenty years and five years on Counts II and III, respectively, the sentences to run consecutively.

Remanded for resentencing.


text:
    David SCOTT a/k/a David Scott Williams, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2011.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant having failed to demonstrate reversible error in the trial proceedings, the judgments of conviction and sentence for burglary and theft are affirmed. The sentence was enhanced pursuant to Section 775.084(4), Florida Statutes (1979) and is supported only by the oral finding that “this is necessary for the protection of society”, which finding is woefully short of what is required by the statute. Ruiz v. State, 407 So.2d 1042 (Fla. 3d DCA 1981). We reverse the enhanced portion of the sentence and remand for further findings and resentencing in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.


text:
    Tracy Randy TACKETT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2332.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Our review of the record in the light of the appellant’s points on appeal discloses that no harmful error occurred during the trial. Therefore, the judgment under review is affirmed. As the parties agree, the order entered under Section 947.16(3), Fla. Stat. (1981) should be corrected after remand to provide for the retention of jurisdiction for a specified period of no more than one-third of the sentence. The defendant need not be present when this is accomplished.

Affirmed as modified.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. M.N.M., a juvenile, Appellee.
    No. 81-2563.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds, Asst. Atty. Gen., for appellant.
    Orta & Associates and Jorge Orta and Rafael Silva, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   NESBITT, Judge.

The state appeals from an order suppressing tangible evidence of drugs and weapons seized from the juvenile. We reverse.

At approximately 3:00 a.m., a police officer observed an altercation in the parking lot of a bowling alley. The juvenile and a companion were standing by their car, exchanging shouts and threats with a group of eight to twenty other people. Two other officers arrived and attempted to disperse the crowd. One policeman asked the juvenile, who had partially re-entered the vehicle, to step outside the car. As he complied with this request, a pair of brass knuckles fell from the vehicle. At about the same time, someone in the crowd shouted that there was a gun. Bending down to pick up the brass knuckles, the officer looked into the car for a gun and saw marijuana cigarettes in an open ashtray. The officer then arrested the juvenile and patted him down for weapons. A large knife was found concealed in his pocket. Subsequently, the police searched the vehicle and uncovered a pistol, a bag of marijuana, and a “roach clip.” Finding that these drugs and weapons were illegally seized, the trial court granted the juvenile’s motion to suppress. We reverse.

We need not consider whether there was a lawful stop of the vehicle because the automobile and its occupants were already stationary for reasons unrelated to the police activity. State v. Williams, 371 So.2d 1074 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 771 (Fla.1980). The de minimis intrusion involved in ordering the juvenile to get out of his vehicle was justified by the potential risk to the officer in approaching a volatile situation. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

Having found that the officers were where they had a right to be, it follows that the officers properly seized the brass knuckles and marijuana cigarettes, both of which were of an apparently incriminating nature and observed in open view. Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1980); State v. Hughes, 375 So.2d 615 (Fla. 3d DCA 1979); State v. Flores, 305 So.2d 292 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 189 (Fla.1975). At that point, the officers effectuated a valid arrest, subsequent to which they properly searched the juvenile and the vehicle. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981).

Because we find that the officers’ activities were lawful and proper, we reverse the order suppressing the evidence of the drugs and weapons and remand for further proceedings.

Reversed and remanded.


author: SCHWARTZ, Judge.

text:
    CITY OF SOUTH MIAMI, Appellant, v. Stephen L. DEMBINSKY, Appellee.
    No. 81-2720.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Gus Efthimiou, Jr., Miami, for appellant.
    Rash, Katzen, Kay & Pintado and Stephen H. Rash, South Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The appellee Dembinsky is a former South Miami police officer. His service began on November 22, 1978, when the city agreed to enroll him for training in the Southeast Institute of Criminal Justice, commonly known as the Police Academy. While he was there, on April 20, 1979, the city presented him with and he executed a so-called Cost of Training Agreement under which he promised that he would reimburse it for his academy expenses if he voluntarily left the force within two years of his employment. At that time, and for the first six months after graduation, Dembin-sky — like all South Miami police officers— was on probationary status, subject to dismissal at the will of the city. Dembinsky left the city on his own within the two-year period on May 4, 1980 and thereafter sued South Miami for unpaid salary and benefits. The city answered admitting that some monies were due and raised the issue involved in this appeal by counterclaiming for the police academy charges under the Cost of Training Agreement. On Dembinsky’s motion, the trial court held that the agreement was unenforceable for lack of consideration and entered summary judgment for the plaintiff for the amount of $2,250.31 in unpaid compensation plus interest. We reverse.

We do so on the ground that the city’s continued employment of Dembinsky after the agreement, despite its admitted right then and for more than six months thereafter to fire him if he refused to execute it or for any other reason, rendered his promise of reimbursement an enforceable one. It is of course the general rule that declining or failing to exercise a legal right to take action adverse to the promisor — in a word, forbearance — constitutes valid consideration for an agreement which benefits the promisee. Boymer v. Birmelin, 227 So.2d 358 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 537 (Fla.1970) and cases cited; City of Valparaiso v. Long, 141 So.2d 334 (Fla. 1st DCA 1962). This principle has been often and recently applied to the very situation involved here. In Wright v. Seaton, Inc. v. Prescott, 420 So.2d 623 (Fla. 4th DCA 1982), the court held that continued employment notwithstanding the ability to discharge the employee at will was sufficient to render enforceable a covenant not to compete which was executed after the employee had been initially hired. In support of this conclusion, it was said

[Mjore important is the rule stated in 17 C.J.S. Contracts § 100(3), at 799-800 (1963):
Although a contract is lacking in mutuality at its inception, such defect may be cured by the subsequent conduct of the parties. Want of mutuality is no defense in the case of an executed contract, and a promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee.
(Footnotes omitted.) Not only does Florida follow that rule, Russell v. Martin, 88 So.2d 315 (Fla.1956); Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla.1956), adopting Florida-Georgia Chemical Co. v. National Laboratories, Inc., 153 So.2d 752 (Fla. 1st DCA 1963), but it is applicable under the circumstances of this case.
If appellant continued to employ appel-lee, the latter promised that upon termination of his employment he would not compete with appellant. Even if we were to assume — and for the sake of discussion we do because appellant retained the right to cancel the agreement — an absence of mutuality of obligation at the inception and for the executory portion of the agreement, appellant completely performed its obligations to continue to employ and pay appellee for his services from the commencement date through April 16, 1980.

Tasty Box Lunch Co. v. Kennedy, 121 So.2d 52, 54 (Fla. 3d DCA 1960), said:

Inasmuch as the employment was a continuing contract terminable at the will of the employer or the employee, the continued employment and agreement to pay commissions was consideration for the employee’s agreement not to compete.

The foregoing language was quoted with approval in McQuown v. Lakeland Window Cleaning Co., 136 So.2d 370, 371-72 (Fla. 2d DCA 1962). Finally, in Dickinson v. Auto Center Manufacturing Co., 639 F.2d 250, 253 (5th Cir.1981), the court said:

[I]t is clear that in Florida the primary element of consideration essential to formation of a contract, see, e.g., Frissell v. Nichols, 94 Fla. 403, 114 So. 431 (1927), is satisfied when any act of a plaintiff from which a defendant derives benefit, or by any labor, detriment, or inconvenience sustained by a plaintiff at either defendant’s express or implied consent is present. Tampa Northern R.R. Co. v. City of Tampa, 104 Fla. 481, 485, 140 So. 311, 313 (1932). Moreover, the detriment which may be found to constitute adequate consideration for a promise need not be an actual loss to the promisor and may be based on either the express or implied consent of the promisee.
The Florida Courts’ application of these principles have been broad and have often been utilized to interpret employment contracts. Indeed, particularly where employment was a continuing contract terminable at the will of either the employer or employee, the Florida Courts have held continued employment constitutes adequate consideration to support a contract. Tasty Box Lunch Co. v. Kennedy, 121 So.2d 52, 54 (Fla.App.1960).

420 So.2d at 627, 628.

The Prescott and Tasty Box cases are directly, in fact a fortiori, applicable to this one. While the validity of the Prescott holding might have been subject to question if — as did not occur — the employer had itself subsequently fired the employee and then nevertheless attempted to enforce the non-compete agreement, no such result could ever occur here. This is because Dembinsky’s promise was a conditional one which would become, and in the event became, enforceable only if he quit before the city got value for its training money in the form of two years of his services. If South Miami had fired him, he simply would not owe it the money. Consequently, there is even less reason than in Prescott to be concerned about the absence of “an in depth analysis of the question of mutual obligation,” 420 So.2d at 628, in the prior cases, much less to undertake one ourselves. We are content merely to follow and apply to the facts before us the well-established and, we think, well-justified principles enunciated by those authorities.

Finally, we note our agreement with the appellee that there is no evidence that the consideration we find for Dembinsky’s promise was in fact overtly bargained for; that is, he was never told either that his promise was being exacted in return for the city’s undertaking to continue his employment, or that he would be discharged if he did not sign. This makes no difference, however, because in this context at least, there is no such requirement. Dickinson v. Auto Center Manufacturing Co., 639 F.2d 250 (5th Cir.1981); Wright & Seaton, Inc. v. Prescott, supra; Tasty Box Lunch Co. v. Kennedy, 121 So.2d 52 (Fla. 3d DCA 1960); Hogan v. Bergen Brunswig Corp., 153 N.J. Super. 37, 378 A.2d 1164, 1167 (1977), and cases cited. See Restatement of Contracts § 84(a) (1932).

For these reasons, the judgment below is reversed and the cause remanded for further proceedings consistent herewith.

Reversed.

      . The city does not dispute the correctness of this amount.

        . The Prescott court expressed that concern as follows:
      Let us assume in the present case that immediately after appellee appended his name to the parties’ employment agreement, appellant delivered to him then and there a written notice that his employment was forthwith terminated without cause; or that this same notice was delivered to him one day, one week, or one month after employment had continued pursuant to the agreement, in which period no trade secrets became known to appellee. Would appellee be bound by his covenant or was the ‘promise’ of continued employment only illusory? Accordingly, we are troubled by the phrase ‘terminable at will’ that is employed in the three opinions in the absence of supportive analysis.
      420 So.2d at 628.

      . Dipping our toes only gingerly into the great sea of theoretical controversy on this question, we observe that the class of cases which involve, as here, a promise which may be initially lacking in mutuality but which becomes binding after performance by the promisee, does not fit within Justice Holmes’ view that consideration must be “given and accepted as the motive or inducement of the promise.” Holmes, The Common Law 293 (1923). See generally, 1 A. Corbin on Contracts, §§ 118 et seq. (1963). Another conceptual basis for the consideration requirement must be formulated if the jurisprudential theory of the matter is to coincide with what the law actually is. But see Corbin, supra, § 109.


text:
    Russell VETTER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 82-123.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Bernard Butts, Hialeah, for appellant.
    Talburt, Kubieki & Bradley and Betsy E. Hartley and Jon D. Derrevere, Miami, for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The judgment below is affirmed on the authority of Indomenico v. State Farm Mutual Automobile Ins. Co., 388 So.2d 29 (Fla. 3d DCA 1980) and State Farm Mutual Automobile Ins. Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). As in Allstate Ins. Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982), we acknowledge and certify that this decision is in constitutional direct conflict with Harbach v. New Hampshire Ins. Group, 413 So.2d 1216 (Fla. 5th DCA 1982).


author: BASKIN, Judge.

text:
    CITY OF MIAMI, a municipal corporation, Appellant, v. FLORIDA RETAIL FEDERATION, INC., a Florida corporation; Superex Drugs, Inc., a Michigan corporation; Jefferson Stores, Inc., a Delaware corporation, and G.C. Murphy, Company, a Pennsylvania corporation, Appellees.
    No. 82-231.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Jose R. Garcia-Pedrosa, City Atty. and Mikele S. Carter, Asst. City Atty., for appellant.
    Roberts, Baggett, LaFace, Richard & Wiser and Barry Richard, Tallahassee, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

The City of Miami appeals from an amended final judgment entered in a class action. A group of merchants filed a lawsuit to recover excess payments of occupational license taxes. They contended that City of Miami Ordinance 9188 violated section 205.043, Florida Statutes (Supp.1980), which permits cities to increase occupational license taxes up to 100% over the 1971 level with regard to businesses for which the tax was $100 or less; up to 50% for businesses for which the tax fell between $101 and $300; and up to 25% for businesses for which the tax was greater than $300. The trial court agreed and ruled that the ordinance violated section 205.043, Florida Statutes (Supp.1980) to the extent that the ordinance raised occupational license taxes 100% without regard to the 1971 taxes paid by merchants. The court required the City to reimburse merchants for 1980-81 and 1981-82 occupational license tax overpay-ments and to pay the merchants’ attorneys a sum equal to one-third of the gross amount of reimbursement for 1980-1982.

The City contests the reimbursement to those taxpayers who failed to protest their tax payments. In addition, the City challenges the requirement that it pay attorneys’ fees on behalf of taxpayers who receive no benefit because they cannot be located.

Concerning the necessity for protest, the merchants assert that they paid the taxes under statutory mandate subjecting them to substantial sanctions in the event they failed to comply. They contend that, accordingly, their taxes were paid involuntarily and they were not required to protest. As to attorneys’ fees, the merchants raise the City’s failure to present the issue to the trial court. We are asked to decide whether taxpayers who failed to protest their taxes at time of payment may recover excess occupational license taxes paid pursuant to city ordinance and whether the City must pay attorneys’ fees on behalf of those taxpayers who are not reimbursed. We affirm.

We turn first to the need to protest. A taxpayer is entitled to a refund of taxes paid pursuant to an unlawful assessment, Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978), but voluntary payment of an illegal tax prevents the taxpayer from obtaining a refund. Broward County v. Mattel, 397 So.2d 457 (Fla. 4th DCA 1981). In Mattel, the court stated: “Contrary to appellant’s contention, no statutory provision authorizing a refund is necessary for the taxpayer to obtain a refund where payment of an illegal tax is involuntary. 31A Fla.Jur.2d, Taxation § 887.” Id. at 459. Thus, whether taxpayers who failed to protest may obtain a refund depends on whether the excessive tax was paid voluntarily or involuntarily. The Mattel court reasoned that the threat that sanctions would be imposed if license taxes were not paid rendered the payment of the illegal tax involuntary and that recovery was available despite the absence of protest. Here, as in Mattel, the tax under consideration was unlawfully assessed, nonpayment subjected taxpayers to severe sanctions, and, accordingly, payment was involuntary.

The City relies primarily on Ingraham v. City of Miami, 388 So.2d 305 (Fla. 3d DCA 1980) and Willig v. Blake, 358 So.2d 871 (Fla. 3d DCA 1978) to support its assertion that the taxpayer must protest an illegal tax in order to receive a refund. In our view, those cases do not decide the issues before us. In Willig, the court considered the sufficiency of notice to the tax collector of a contest under section 194.171, Florida Statutes (1975), governing ad valorem taxation. The basis for the Willig protest requirement-was the principle that when the legislature has created a procedure whereby a taxpayer is permitted to pay only that portion of the tax he admits in good faith to be owing, any payment made in excess of that amount must be deemed voluntary. Because he failed to protest in a timely fashion and because he failed to follow the procedure described in the statute, Willig did not prevail. Those circumstances do not appear in the case before us.

Similarly, Ingraham does not resolve the issue before us. Ingraham did not hold that protest is required before a taxpayer may obtain a refund of illegal taxes. Instead, the court ruled that the tax under consideration was valid. Thus, Ingraham’s reference in dictum to the need to protest when seeking a refund depends, we glean from its citation to Willig, upon the assumption that the taxes were paid voluntarily. Here, we reiterate, excess taxes were paid involuntarily. Whether the time has come to abandon the myth that any taxes may be considered to have been paid voluntarily when no statutory scheme similar to the one in Willig is provided, we need not decide at this time. In accordance with the foregoing authorities, as explained, we therefore hold that the involuntary payment of an invalid tax, which has been promulgated without an authorized procedure for protest, presents no bar to recovery by a taxpayer who has paid without protest.

We affirm the award of attorneys’ fees predicated upon the benefit obtained for class members by the attorneys. Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973); see Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). That benefit included not only reimbursement of funds, but removal of the threat of criminal prosecution as well.

Affirmed.

      . The court certified the class as “consisting of all retail merchants who paid occupational license taxes to the City of Miami in the year 1979 in excess of $100 and who paid or were charged an occupational license tax for the year 1980.” Florida Retail Federation, Inc. entered a voluntary dismissal during the proceedings.

      . Nonpayment of the occupational license tax subjects the taxpayer to a daily $500 fíne and 60 days in prison, as well as to civil penalties. § 3(aa) Charter of the City of Miami (1980); § 1-6 Code of the City of Miami (1980).


text:
    James FARRELL and Industrial Fire and Casualty Insurance Company, Appellants, v. Elizabeth PEAK, Appellee.
    No. 82-254.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Goodhart & Rosner, Jeanne Heyward, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold Ginsberg, George P. Telepas, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Lance v. Martinez-Arango, 251 So .2d 707 (Fla. 3d DCA 1971); Kendel v. Pontious, 244 So.2d 543 (Fla. 3d DCA 1971), writ discharged, 261 So.2d 167 (Fla.1972).


text:
    CITY OF HIALEAH, a municipal corporation, Appellant, v. Marie HURRELL, Appellee.
    No. 82-275.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy & Graham and Richard A. Sherman, for appellant.
    Bill Shuford, Jr. for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Seventy-three-year-old Marie Hurrell slipped and fell in an area between the street and a sidewalk located in the City of Hialeah. She sustained injuries and sued the City for negligence. Following trial, the jury returned a verdict in the City’s favor. The trial court then entered an order granting a new trial on the ground that the jury “misconstrued, misinterpreted or misapplied the law” and returned a verdict “contrary to the law and contrary to the manifest weight of the evidence.” The order granting a new trial is the subject of this appeal. Finding support in the record for the trial court’s ruling, we affirm. City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977).

The trial court’s broad discretion should not be disturbed in the absence of a clear showing of abuse. Florida First National Bank v. Dent, 404 So.2d 1123 (Fla. 1st DCA), dismissed, 404 So.2d 1123 (Fla.1981). Appellant correctly argues that Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) requires the court to state with specificity its reasons for concluding that the verdict is against the manifest weight of the evidence. Travelers Indemnity Co. v. Hicks, 363 So.2d 628 (Fla. 3d DCA 1978). Although the order under consideration is deficient because it fails to include record references in support of its findings, reversal is not our sole recourse. Adopting the procedure utilized in Wackenhut v. Canty and Jarkesy, we have reviewed the record, White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978); Adams v. Wright, 403 So.2d 391 (Fla.1981), and find support for the trial court’s decision in the testimony presented at trial. Henry Etter, an expert witness, testified that the shoulder of the street in question was not maintained in good condition and posed a danger to pedestrians. Other testimony revealed that the City made no improvements to the street after 1965, although the defects had existed for several years. The jury failed to give appropriate weight to the evidence.

Having found support in the record for the trial court’s grant of a new trial, we affirm.


text:
    Mary Lee BROOKS, Appellant, v. Francis Elton BROOKS, Jr., Appellee.
    No. 82-360.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Burnett Roth, Miami Beach, for appellant.
    Beckham & McAliley and George E. Schulz, Jr., Jacksonville, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant Mary Lee Brooks appeals from an order denying her motion for modification of the alimony and child support provisions of the final judgment of dissolution of the parties’ marriage.

On June 14, 1976, during the pendency of the dissolution action, an agreement was entered into between the parties. The agreement, which was later incorporated by reference into the final judgment, provided, inter alia, that the husband [appellee] pay to the wife for her support and maintenance the sum of $200.00 per month, as and for rehabilitative alimony for a term not to exceed five years, at which time alimony would cease. It further provided that the husband pay to the wife as and for the support of the two minor children of the parties, the sum of $200.00 per month per child, until each child reached the age of eighteen. As additional support, the husband agreed to provide medical care and hospital expenses and limited dental expenses. He also agreed to pay for the college education or professional training of the children, if his finances permitted.

Appellant’s petition for modification alleged that in view of the increase in age of the children and the inflationary spiral of living expenses it was impossible for the children to be maintained and supported properly with the amount of support provided for in the agreement; that her circumstances had deteriorated, and the husband's financial circumstances had improved to the extent that he should be required to increase his support payments for the minor children. It was further alleged that the appellant had not been able to rehabilitate herself so as to properly provide for her support, even though she had two jobs. She therefore requested that the court order a continuance of the payments required for alimony and maintenance, which payments had expired.

Error has not been demonstrated as to the trial court’s refusal to extend alimony payments to the appellant. Where the amount of alimony payments is fixed not by the court, but by agreement between the parties, the one seeking to modify the amount of alimony has a heavy burden. Appellant has not met this burden. Pusey v. Pusey, 386 So.2d 269 (Fla. 3d DCA 1980); Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA), petition for review denied, 392 So.2d 1378 (Fla.1980); Scott v. Scott, 285 So.2d 423 (Fla. 2d DCA 1973).

It is not the function of this court to substitute its judgment for that of the trial court in the absence of a finding that the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). We find no such abuse of discretion.

However, with respect to the trial court’s denial of increased child support, we find error and reverse. In 1976, when the amount of child support was set, the children were seven and nine years old. At this time they are thirteen and fifteen. As they have grown older, the cost of their support has risen and the purchasing power of the dollar has declined, while the income of the husband has increased from $26,135 to $35,400. It is true that the husband has incurred some additional debts since 1976, but there is evidence showing that his income has increased to the extent that he can afford to provide additional support for the children. Therefore, we have concluded that the trial court’s failure to increase the child support payments constituted an abuse of discretion. Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA), cert. denied, 238 So.2d 107 (Fla.1970).

The order appealed is reversed insofar as it denies additional child support and the cause is remanded to the trial court with directions to increase the amount of child support from $200.00 per month per child to $250.00 per month per child, effective as of the date of this opinion. In all other respects the order appealed is affirmed.

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


text:
    Elaine S. HILF, Appellant, v. Paul B. HILF, Appellee.
    No. 82-456.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Edward C. Vining, Jr., Miami, for appellant.
    Hal P. Dekle, Tampa, Schwartz, Klein, Steinhardt & Weiss and Raphael Stein-hardt, North Miami Beach, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. See and compare Andrews v. Andrews, 409 So.2d 1135 (Fla. 2d DCA 1982); Hagen v. Hagen, 308 So.2d 41 (Fla. 3d DCA 1975).


text:
    Bobby BETTGE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-473.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Mark R. Baer and Angelo A. Ali, DeMeo & Sherman and Thomas Sherman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See State v. Webb, 398 So.2d 820 (Fla.1981); Russell v. State, 415 So.2d 797 (Fla. 3d DCA 1982); State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), aff’d, 387 So.2d 963 (Fla.1980).


text:
    George Keith McDONALD, Appellant, v. The STATE of Florida, Appellee.
    No. 82-501.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Bennett H. Brummer, Public Defender, and Gelber, Glass & Canal, John Lipinski, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The judgment of conviction and the enhanced sentence entered thereon are affirmed upon a holding that (1) the information charging burglary was not fatally defective for failure to allege non-consent, see State v. Hicks, 421 So.2d 510 (Fla.1982); (2) the proof with respect to ownership was sufficient, see In the Interest of M.E., 870 So.2d 795 (Fla.1979); Jones v. State, 415 So.2d 852 (Fla. 5th DCA 1982); Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977); cert. denied, 365 So.2d 709 (Fla.1978); (3) the fingerprint evidence establishing the defendant’s presence was sufficient, see Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982); State v. Perry, 297 So.2d 638 (Fla. 2d DCA 1974); and (4) the trial court properly enhanced the defendant’s sentence, pursuant to section 775.084(l)(a)2, Florida Statutes (1979), based upon official court records reflecting prior felony convictions and a pre-sentence investigation report not objected to by appellant which characterized him as incorrigible, see Eutsey v. State, 383 So.2d 219 (Fla.1980); McClain v. State, 356 So.2d 1256 (Fla. 2d DCA 1978).

Affirmed.


text:
    Manuel LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-529.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

A trial judge may not summarily adjudicate a defendant guilty of direct criminal contempt when the alleged contemptuous conduct took place not in his presence or within his hearing, but, in fact, took place a week before the instant proceedings and before a different trial judge. Rule 3.830 Florida Rules of Criminal Procedure.

The state contends that because the alleged contemptuous acts took place in open court it was an offense that could be considered as a direct criminal contempt by any judge at any time. We reject this contention. The first sentence of Rule 3.830 speaks of the court, but the last two sentences speak of the judge and clearly the rule can only be interpreted to mean that the conduct takes place in open court before a judge and that the judge and court must be the same.

The conviction of direct criminal contempt under review is reversed without prejudice to proceed against the appellant under Rule 3.840.

Reversed and remanded with directions.

      . A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court. Emphasis added.


text:
    Elizabeth De GUZMAN, Appellant, v. KENDALL SKATING CENTER, LTD. and Allianz Insurance Co., a foreign corporation licensed to do business in the State of Florida, Appellees.
    No. 82-646.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      DeMeo & Sherman and Thomas Sherman, Coral Gables, for appellant.
    Lanza, Sevier & Womack, Coral Gables, and Judith A. Bass, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   NESBITT, Judge.

Mrs. Guzman was injured when knocked down by another skater at Kendall Skating Center. She sued the skating center alleging that its failure to adequately supervise the skating area proximately caused her injuries. After answer and very limited discovery, the defendant moved for summary judgment, which was granted. We reverse.

In its motion for summary judgment, the defendant claimed there was no evidence tending to show that it knew or should have known of the presence of the offending skater or of the danger created by that skater. The response to the motion was accompanied by identical affidavits which stated, inter alia:

That Affiant observed several unruly and wild persons, including the individual who ultimately pushed the Plaintiff down, who were allowed to skate without any supervision. Said individuals were observed twenty to thirty minutes before the incident occurred shouting and yelling.

Whether the defendant had actual or constructive knowledge of any danger created by the disorderly skaters was a material issue in this case. See Hilgenhurst v. Knight-Ridder Newspaper, Inc., 400 So.2d 523 (Fla. 3d DCA), pet. for review denied, 411 So.2d 382 (Fla.1981); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969); Nance v. Ball, 134 So.2d 35 (Fla. 2d DCA 1961). A reasonable inference from the affiants’ testimony is that the rink personnel, called “skate guards,” also knew or should have known of the disruptive skaters and in sufficient time to have prevented them from causing any harm. The defendant presented no proof to overcome this inference and thus was not entitled to a summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed.


text:
    Robert HEISTERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-657.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Levine, Finger & Zenobi, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We review an order revoking probation. We sustain the revocation upon a finding that the probationer was found guilty of the commission of assault and battery in South Carolina, that he had relocated without permission and that he had committed an attempted battery in Key West, Florida. All other grounds of revocation referred to in the order are not supported by the record on appeal and are hereby stricken from said order.

The order under review, as modified, is hereby affirmed.

Affirmed as modified.


text:
    The STATE of Florida, Appellant, v. James McQUAY, Alfred Cunningham, Michael Shipman, Antonio Allen a/k/a Torrence Allen and Richard Allen Bowe, Appellees.
    No. 82-735.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellant.
    Eugene F. Zenobi, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

In 1980 a trial judge granted an extension to the State, permitting prosecution within 60 days of the receipt of any mandate issued in connection with an interlocutory appeal pursuant to then Fla.R.Crim.P. 3.191, 1980. The Rules of Criminal Procedure changed on January 1, 1981 and accorded the State 90 days, see Rule 3.191(g) 1981. After January 1, 1981, the mandate was returned and without 60 days, but within 90 days, the state attempted to continue the prosecution. The trial court held the speedy trial time had run and discharged the defendants. We affirm.

The 1981 rule change did not operate to automatically invalidate the trial judge’s 1980 order, which was valid when rendered, providing 60 days as the time limit. State v. Jenkins, 389 So.2d 971 (Fla.1980).

Therefore, the order granting discharge be and is hereby affirmed.

Affirmed.


text:
    Jorge CHATELOIN, Appellant, v. FLANIGAN’S ENTERPRISES INC., a/k/a Big Daddy’s Lounges, and Gertrude Flagel, Appellees.
    No. 82-988.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Gerald E. Rosser, Miami, for appellant.
    Proenza & White and Kevin P. O’Connor and Morris Proenza, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The owner of an alcoholic beverage establishment is not responsible for any injuries caused to a patron who was shot by another patron, when the injury occurred several miles from the premises and a considerable time after the patrons had left the premises. The injury was too remote as to time and place, even if the proprietor could be held responsible for the criminal activity of its patrons, which we do not here decide. See and compare Concrete Construction Inc. of Lake Worth v. Petterson, 216 So.2d 221 (Fla.1968); Bell v. Jefferson, 414 So.2d 273 (Fla. 5th DCA 1982); Gottschalk v. Smith, 334 So.2d 102 (Fla. 3d DCA 1976).

Therefore, the final summary judgment here under review be and the same is hereby affirmed.

Affirmed.


text:
    Maria BARRIOS, Appellant, v. James DRAPER and Industrial Fire & Casualty Company, Appellees.
    No. 82-1123.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Richard B. Burke, Miami, for appellant.
    Goodhart & Rosner, and Mauricio J. Ejenbaum, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal from an order granting the defendants’ motion for relief from a final judgment. We reverse.

Based upon the fifth district’s decision, in Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981), holding that the permanent injury requirement of the no fault statute was unconstitutional, the plaintiff recovered a judgment upon a special interrogatory verdict which found no permanent injury. No appeal was filed by the defendant. Thirty-six days after entry of the final judgment, the supreme court reversed the fifth district’s decision. See Chapman v. Dillon, 415 So.2d 12 (Fla.1982). Four days later, the defendant filed his motion for relief from final judgment.

A party seeking relief from judgment based on a mistake of law has two alternatives. He may file a motion pursuant to Florida Rule of Civil Procedure 1.530(g) within ten days after entry of the final judgment or file an appeal within thirty days. See Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975); Keller v. Belcher, 256 So.2d 561 (Fla. 3d DCA 1971), cert. denied, 280 So.2d 682 (Fla.1972). Having failed to avail themselves of either of these alternatives, the defendants are precluded from relief.

Accordingly, we reverse the order vacating the judgment with directions to reinstate the final judgment in favor of the plaintiff.


text:
    Gonzalo MUNEVAR, Appellant, v. Delia MUNEVAR, Appellee.
    No. 82-2057.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Mann, Dady, Corrigan & Zelman and Marvin B. Nodel, Miami, for appellant.
    Alexander William Kent, Coral Gables, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Small v. Small, 422 So.2d 1054 (Fla. 4th DCA).


text:
    LAWRENCE F. BRILL, INC., Petitioner, v. Joseph GARFIELD and Kenneth Treister, et al., Respondents.
    No. 82-2437.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    McDermott, Will & Emery and James E. McDonald, Miami, for petitioner.
    Craig W. Lekach, Fort Lauderdale, for respondents.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The petition for writ of certiorari is granted. The trial court’s order denying the petitioner’s motions to dismiss the respondents’ third-party complaints is quashed with directions to the trial court to compel arbitration pursuant to the parties’ agreement and to stay all further proceedings in the trial court on the third-party complaints pending arbitration. See Ziegler v. Knuck, 419 So.2d 818 (Fla. 3d DCA 1982); Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA), pet. for rev. denied sub nom., Fairways Plaza Associates v. Commercial Construction Corp., 419 So.2d 1197 (Fla.1982).


text:
    Olga ROMANI, Petitioner, v. Fred CRAWFORD, Director, Dade County Department of Correction and Rehabilitation, and the Honorable Gerald Klein, Judge of the County Court of the Eleventh Judicial Circuit of Florida, Respondents.
    No. 82-2439.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Carin Kahgan, Miami, for petitioner.
    Jim Smith, Atty. Gen., for respondents.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The petition for writ of habeas corpus is denied. State v. Arthur, 390 So.2d 717 (Fla.1980); Kinson v. Carson, 409 So.2d 1212 (Fla. 1st DCA 1982).


text:
    Drew WASHINGTON, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-2498.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Drew Washington, in pro. per.
    Jim Smith, Atty. Gen., for respondent.

      Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Miguel D. HENRIQUEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-2541.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Miguel D. Henriquez, in pro. per.
    Jim Smith, Atty. Gen., for respondent.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Petitioner, Miguel D. Henriquez, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    The STATE of Florida, Appellant, v. Mary DONAGHY, Appellee.
    No. 82-1204.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Richard J. Stone and Michael J. Getel-man, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Fla.R.Crim.P. 3.840(a)(1).


author: DELL, Judge.

text:
    SUNSTREAM JET CENTER, INC., Appellant, v. LISA LEASING CORPORATION and United States Fire Insurance Company, Appellee.
    No. 81-1303.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Kimberly V. Barenz, Boca Raton, for appellant.
    Larry L. Adair of Law Offices of Jordan A. Greene, Miami, for appellee.
   DELL, Judge.

Sunstream Jet Center appeals a final judgment in favor of Lisa Leasing Corporation and the subsequent denial of its motion to set aside that judgment.

Appellant sued appellee to recover $23,-754.14 allegedly due for repair work performed on appellee’s aircraft. Appellee answered and counterclaimed for damages resulting from appellant’s failure to properly repair the aircraft. On December 1, 1980, appellee filed requests for admission, production of documents and first set of interrogatories directed to appellant. Receiving neither the requested discovery nor objections to any part of the discovery requests, appellee moved for an order compelling discovery. On March 2, 1981, following a hearing which appellant’s counsel failed to attend though notified, the trial court granted appellee’s motion to compel discovery and ordered appellant to make discovery by March 22, 1981 or have its pleadings stricken and an order of default entered. This deadline came and went without any response to the discovery order.

On April 9, 1981, appellee moved for an order of default and judgment after default for appellant’s failure to comply with the order compelling discovery. Without further notice or hearing the trial court granted appellee’s motion for default and entered a final judgment in the amount of $77,-183.85, based upon an affidavit of claim and fee affidavits submitted by appellee. The trial court denied appellant’s motion to set aside the final default judgment.

Appellant contends that the trial court erred in entering a final default judgment without notice and that the trial court erred in assessing damages against appellant without providing notice and a trial on the amount of appellee’s unliquidated damages.

Rule 1.500(b) provides:

BY THE COURT. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such parties; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.

While we are compelled to follow the dictates of Rule 1.500(b) as was the court in Owens-Illinois, Inc. v. Lewis, 260 So.2d 221 (Fla. 1st DCA 1972), we do so reluctantly.

We recognize the ever increasing case load of the trial judges and the pressures of time placed on them by crowded dockets and motion calendars. While a sound basis exists for the requirement of notice in most circumstances, we fail to see the need for compliance with Rule 1.500(b) in discovery matters. Rule 1.380(a), Florida Rules of Civil Procedure requires notice and a hearing on a motion to compel discovery. If the trial judge in the order compelling discovery gives notice of the sanctions which will befall a disobedient party for noncompliance within a date certain, that party can hardly claim lack of due process by the entry of a default judgment for noncompliance without further notice. Should the party affected by the order compelling discovery find it impossible to comply with the court’s order, prudence would dictate that he file a motion for an extension of time to comply or for relief from that order prior to the date set for discovery. If on the other hand he has complied with the order and the court enters a default because of fraud or by mistake, he may seek relief under Florida Rule of Civil Procedure 1.540(b). But for a party to sit back, do nothing and then seek relief asserting that he lacked notice of the consequences of his actions is repugnant to us. However, we must remand this case for an evidentiary hearing after notice to appellant to determine whether appellant’s failure to comply with the trial court’s order compelling discovery resulted from such wilfulness or bad faith as would justify the sanction of striking pleadings and entering a default.

If on remand the trial court determines that the default judgment should stand appellant must be given an opportunity to defend on the issue of damages.

In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).

Fla.R.Civ.P. 1.440(c). Also see B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980); Tallman Pools of Georgia, Inc. v. Wood, 399 So.2d 112 (Fla. 1st DCA 1981).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

BERANEK and HERSEY, JJ., concur.


text:
    Marianne HOLM, Appellant, v. SUN BANK/BROWARD, N.A., f/k/a Sun Bank of Broward County, N.A., Appellee.
    No. 81-1334.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Minervino Rodriguez, Jr., of Mills & London, P.A., Miami, for appellant.
    Romney C. Rogers of Rogers, Morris & Zeigler, Fort Lauderdale, for appellee.
   DELL, Judge.

In a mortgage foreclosure action, Marianne Holm appeals the dismissal of her third-party complaint against appellee, Sun Bank/Broward, N.A.

Appellant executed a note and mortgage in favor of appellee. After the note was past due, appellee assigned the mortgage to Suburban Realties, Limited, without recourse. Suburban Realties filed a complaint to foreclose the mortgage against appellant. Appellant filed her answer and a third-party complaint, charging that ap-pellee had fraudulently induced her to execute the mortgage by misrepresenting that the mortgage was a mere technicality which would not place her property in any risk of loss through foreclosure. Appellee moved to dismiss the third-party complaint and argued that, even if appellant had a cause of action for misrepresentation, because of the assignment of the mortgage the cause of action now ran only against Suburban Realties. The trial court granted the motion to dismiss and this appeal followed.

We agree with appellant’s contention that appellee’s assignment of the mortgage may not be used as a shield to insulate appellee from liability for its own tortious conduct. We find no merit in appellee’s argument that its assignment of the note and mortgage transferred liability for any such misrepresentations to the assignee, Suburban Realties.

The trial court, in passing on a motion to dismiss, must assume that all facts alleged in the complaint are true, Hammonds v. Buckeye Cellulose Corporation, 285 So.2d 7, 11 (Fla.1973), and must decide the motion to dismiss only on questions of law, Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968). Appellant alleged sufficient ultimate facts to state a cause of action for fraudulent misrepresentation.

Accordingly, we reverse the order dismissing the third-party complaint and remand to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LETTS, C.J., and HERSEY, J., concur.


author: HERSEY, Judge.

text:
    Edward CERRITO and Joan R. Cerrito, Appellants, v. Jacqueline R. KOVITCH and Ed-Jo Corp. of Florida, Inc., a Florida corporation, Appellees.
    No. 81-1609.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Timothy H. Kenney of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellants.
    Richard W. Wasserman, Miami Beach, for appellee-Jacqueline R. Kovitch.
   HERSEY, Judge.

This appeal arises from an action to foreclose a mortgage. Appellants defended on the basis of a violation of the usury statute. § 687.03, Fla.Stat. (1977). Apparently in reliance on Smith v. Barnett Bank of Murray Hill, 350 So.2d 358 (Fla. 1st DCA 1977), appellants raised usury as a counterclaim rather than pleading it as an affirmative defense. Appellants also unsuccessfully filed a demand for jury trial (on more than one occasion).

The various procedural skirmishes are rendered irrelevant by our determination that usury is an affirmative defense and that no right to trial by jury arises upon its appropriate assertion. Substantial competent evidence supports the substantive aspects of the final judgment: appellees were entitled to foreclosure; the amounts of money in issue were properly computed and funds were accurately allocated.

We therefore return to an evaluation of appellants’ premise that the usury statute creates a cause of action for damages, activating the right to jury trial guaranteed by both Article I, Section 22, of the Florida Constitution and the Seventh Amendment to the Constitution of the United States.

In Smith, 350 So.2d at 359, the court reasoned as follows:

The Declaration of Rights secures the right of jury trial for cases in which a jury trial was traditionally afforded at common law.... No right of action for recovery of usurious interest paid or other damages was afforded at common law.... However, an action for the recovery of money as damages was among the class of cases in which the common law afforded a right of jury trial... .
The right of action afforded by Section 687.04, Florida Statutes (1975) is a right of action for money damages, for which a jury trial is appropriate. It is insignificant to the determination of counter-claimants’ right to a jury trial that the right of action they assert is created by statute rather than by common law. If the rule were otherwise, claims for money damages based on modern legislation would be subject to denial of a jury trial, and the right to jury trial would shrink as time and legislation change the citizen's rights of redress and access to the courts. [Citations omitted.]

We agree with that rationale with one important, and indeed determinative, exception. We disagree that the usury statute creates a cause [right] of action for money damages. The Smith court relies on Hightower v. Bigoney, 156 So.2d 501 (Fla.1963), to support its premise that the right to trial by jury is not waived simply because the legal issue is raised in a compulsory counterclaim filed in an equitable action. We have no quarrel with the correctness of that proposition. Its extension to equate the defense of usury with such a “legal issue” is in our view unjustified.

In Moretto v. Sussman, 274 So.2d 259, 260 (Fla. 4th DCA 1973), we noted that:

Usury is a creature of statute. Thus, usury violations are statutorily governed and give rise only to those penalties and relief statutorily contained or provided. Other damages, compensatory or punitive, are not recognized or permitted. See Coral Gables First National Bank v. Constructors of Florida, Fla.App.1960, 119 So.2d 741; Coe v. Muller, Fla.1917, 74 Fla. 399, 77 So. 88; Tel Service Co. v. General Capital Corp., Fla.1969, 227 So.2d 667; Spinney v. Winter Park Building & Loan Ass’n., Fla.1935, 120 Fla. 453, 162 So. 899.

The relief which the statute provides is primarily defensive. It exacts a penalty by blocking the recovery of money (interest) that otherwise would be due and payable. Thus the second district in Diversified Enterprises, Inc. v. West, 141 So.2d 27, 29 (Fla. 2d DCA 1962), held that “Usury is an affirmative defense and must be properly pleaded by a defendant.” The commentary in 32 Fla.Jur.2d, Interest and Usury § 72, at 83 (1981) states: “Usury is an affirmative defense .... ” (Based upon the cases we have cited.)

Where usurious interest has already been paid, however, the statute permits the borrower to allege usury as a cause of action. Dezeil v. King, 91 So.2d 624 (Fla.1957); Tel Service Co. v. General Capital Corp., 227 So.2d 667 (Fla.1969). The statute establishes that the penalty to be assessed when usurious interest has been collected is double the amount of the interest paid. § 687.04, Fla.Stat. (1981).

We conclude that neither compensatory nor punitive damages are implicated by a defensive plea of usury. Moreover, usury in the customary setting is solely an equitable affirmative defense whether alleged in an action at law on the debt or in an equitable action to foreclose on the security for that debt. (Despite the prohibition by modern rules of procedure merging law and equity, distinguishing between the two sometimes aids analysis.) For these reasons, we affirm the final judgment in all respects. In doing so we necessarily and here expressly create conflict with the first district’s Smith case.

It has been brought to our attention that although the original promissory note was introduced into evidence, subsequently a copy was substituted. Appellees shall be required to surrender the original promissory note which is now merged into the final judgment to the trial court for cancellation.

AFFIRMED.

DOWNEY and WALDEN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. Ralph E. MOORE, Appellee.
    No. 81-1873.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Stephen D. Jerome, Pompano Beach, for appellee.
   GLICKSTEIN, Judge.

The state appeals from an order granting appellee’s “sworn” motion to dismiss. We' question whether the motion was “sworn to”, as that term is used in Florida Rule of Criminal Procedure 3.190(c)(4), which provides in part:

The facts on which such motion is based should be specifically alleged and the motion sworn to.

Appellee declared that the motion was “true and correct to the best of his knowledge and belief.” He should have been required to attest to its truth, unqualifiedly. See State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). We see a distinction between a defendant’s oath and that of an assistant state attorney who can traverse only in good faith on the basis of the contents of his file, not what he knows of his own knowledge.

The basis for the order of dismissal was the state’s failure to traverse. We reverse and remand because Florida Rule of Criminal Procedure 3.190(d) requires a traverse of a sworn motion which alleges factual matters. The motion in this case was speculative and conclusory in nature, not factual. It required neither traverse nor eviden-tiary hearing.

The facts show that the information was filed on October 9, 1980, charging appellee with aggravated battery and possession of a weapon while engaged in a felony on October 27, 1979. Appellee’s motion asserted:

The failure of the State to place the Defendant under arrest prior to January 15, 1981 was entirely unjustifiable and the delay in commencing prosecution has prejudiced the Defense.
As a result of this unjustifiable delay, the Defense can not remember all of the facts and circumstances which will show that the Defendant was a victim, responding and acting entirely in his own self defense. As a further result, the result, [sic] the defense is unable to locate people who were present at the time of the incident and who could, with due diligence, have been found had prosecution been commenced and Defendant arrested at a time nearer to the time of the incident alleged.
There is no justification for the state to have waited so long after the incident in question to arrest the Defendant.

In State v. Newman, 367 So.2d 251, 252 (Fla. 4th DCA 1979), this court said:

[Speculative allegations such as general allegations of loss of witnesses and failure of memories are insufficient to establish the requisite actual prejudice. United States v. Medina-Arellano, 569 F.2d 349 (5th Cir.1978).

We subsequently disapproved conclusory allegations in Kassel v. State, 382 So.2d 1354 (Fla. 4th DCA), pet. for rev. denied, 388 So.2d 1114 (Fla.1980). We do it again here.

HERSEY and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    PALM BEACH AVIATION, INC., Appellant, v. Gerald KIBILDIS, Appellee.
    No. 81-2109.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Allan L. Hoffman, West Palm Beach, for appellant.
    No appearance for appellee.
   DOWNEY, Judge.

Appellee sued appellant in two counts for damages for breach of contract and negligence arising out of the bailment of an airplane. From a judgment on a jury verdict for appellee, appellant has perfected this appeal.

The pleadings and evidence reflect that in 1979 appellee purchased a Cessna 150 aircraft in dismantled condition for the sum of $3,800. Needing a place to tie down the aircraft, appellee contracted with appellant to rent space at Palm Beach International Airport. In August, 1980, in pursuance of that contract appellee tied his airplane down on the rented facilities. A few days later it was discovered that the plane had been vandalized and the engine stolen. Claiming breach of contract and negligence on appellant’s part, appellee commenced this suit. In its answer appellant asserted affirmative defenses involving agency, contributory negligence, and independent intervening cause. At the close of the evidence, the trial court directed a verdict for appellee in the sum of $3,000.

Appellant poses three points on appeal that suggest that the trial court erred a) in allowing the appellee as an owner to testify to the value of the stolen property, b) in holding the contract involved was not a bailment, and c) in holding that, as a matter of law, no agency existed between appellant and Palm Beach County. From our study of the record and appellant’s brief we believe appellant’s second and third points demonstrate error.

Appellant’s first point was not preserved for appeal because appellant’s objection to appellee’s testimony at trial was based on a ground different from the ground appellant raises here.

Under appellant’s second point appellant argues the direction of the verdict on the contract count was erroneous. We agree.

The contract between the parties was a bailment contract for the mutual benefit of the parties. In order for a bailee such as appellant to be liable to a bailor such as appellee, the bailee must be guilty of some fault, such as negligence, that results in harm to the bailed property. 5 Fla.Jur.2d, Bailment, §§ 9-10.

At trial appellant adduced evidence from which the jury could have concluded that appellant exercised that degree of care toward appellee’s aircraft that a reasonably prudent person would bestow on his own aircraft and was therefore not liable to appellee. Under these circumstances the circuit court should have permitted the jury to decide whether appellant breached its duty of care toward appellee’s property; thus it was reversible error for the court to direct a verdict for appellee on the question whether appellant had breached the bailment contract.

It is also contended that appellant’s agency defense was not moot. On the contrary, if, as appellant alleged, the property was owned by Palm Beach County and appellant was merely the County’s agent in leasing the space and collecting rent, a jury might well find that the liability, if any, would rest with the county as a disclosed principal rather than with appellant. 2 Fla. Jur.2d, Agency and Employment, § 80.

Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial.

LETTS, C.J., and GLICKSTEIN, J., concur.

      . Appellee did not favor us with a brief although directed to do so.


text:
    Suzanne B. O’BRIEN, Appellant/Cross-Appellee, v. William F. O’BRIEN, III, Appellee/Cross-Appellant.
    No. 81-2285.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Edna L. Caruso, West Palm Beach, and William R. Scott, Stuart, for appellant/cross-appellee.
    F. Shields McManus of McManus, Stewart & Ferraro, P.A., Stuart, for appel-lee/ cross-appellant.
   DOWNEY, Judge.

The final judgment of dissolution under review in this appeal awarded the wife custody, child support, lump sum rehabilitative alimony, certain personal property which had been jointly held, and attorneys fees. The wife and husband were decreed to be tenants in common in certain jointly owned realty and, in addition, the husband was awarded a waterfront lot and certain personal property.

The wife contends that the award of rehabilitative alimony was improper and inadequate, that the child support awarded was inadequate, and that allowing some of the personal property to remain jointly owned constituted error. The husband, by way of cross-appeal, suggests that error was committed in awarding rehabilitative alimony “irrespective of remarriage or death of either party” and in awarding the wife attorneys fees.

After considering each point raised by the parties, we find no reversible error except the amount awarded, the wife as lump sum rehabilitative alimony. The sum of $100 per week is inadequate to meet her needs during the rehabilitative period. Upon consideration of the record, the amount of lump sum rehabilitative alimony should be increased to $32,500 payable at the rate of $200 per week. The husband contends that the provision awarding rehabilitative alimony in lump sum payable in installments to “continue irrespective of the death or remarriage of either of the parties” constitutes error. We disagree. Rehabilitative alimony may be awarded in lump sum payable over a period of time and lump sum alimony survives the death or remarriage of the parties. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). We would distinguish the case of Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977), as it did not involve an award of rehabilitative alimony in lump sum. Therefore, the award was modifiable and terminable upon death or remarriage.

Accordingly, the judgment appealed from is affirmed in all respects except as modified above.

AFFIRMED IN PART AND REVERSED IN PART.

LETTS, C.J., and WALDEN, J., concur.


text:
    STATE of Florida, Appellant, v. R.J., a child, Appellee.
    No. 82-164.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Jim Smith, Atty. Gen., Tallahassee and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert M. Leen of Leen & Schneider, Hollywood, for appellee.
   GLICKSTEIN, Judge.

This is a timely appeal from an order dismissing (with leave to re-file) a Petition for Adjudication of Delinquency on the ground that it failed to allege an essential element of the crime of burglary. We reverse and remand. The petition charged appellee with burglary and alleged that he

on the 19th day of October A.D. 1981 in the County and State aforesaid did unlawfully enter or remain in a structure or the curtilage thereof, located at 3601 Southwest 89th Avenue, Miramar, property of Broward County School Board, with intent to commit therein the offense of Theft, to-wit: the obtaining, using, or endeavoring to obtain or use the property of another, said property being of value, with the intent to permanently and unlawfully deprive the owner or any other person of said property or the use and benefit thereof, contrary to F.S. 810.02(1) and F.S. 810.02(3), 3rd Degree Felony

(Emphasis supplied.) The trial court conducted a hearing on the sufficiency of the petition; and based on Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), dismissed it because of the state’s failure to allege non-consensual entry. Subsequent to the trial court’s order, the supreme court quashed the decision of the district court of appeal in State v. Hicks, 421 So.2d 510 (Fla.1982), and concluded that non-consent is not an essential element of burglary. It said:

The critical element in both the prior and present burglary statutes is that a defendant enter or remain in the premises “with the intent to commit an offense therein.”

Id. at 512.

DELL and WALDEN, JJ., concur.

      . A petition for an adjudication of delinquency must, like an information or indictment, allege the essential elements of a crime. K.M.S. v. State, 402 So.2d 593 (Fla. 5th DCA 1981).