author: BERANEK, Judge.

text:
    WINN-DIXIE STORES, INC., Petitioner, v. The Honorable John G. FERRIS, as Circuit Judge for the Seventeenth Judicial Circuit, Broward County, Florida, Respondent.
    No. 81-1480.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    Rehearing Denied Jan. 29, 1982.
    Mercer K. Clarke of Smathers & Thompson, Miami, for petitioner.

      Harry A. Stewart, Gen. Counsel, and John Franklin Wade, Asst. Gen. Counsel for Broward County, Fort Lauderdale, for respondent.
   BERANEK, Judge.

This is a petition for writ of prohibition. Petitioner, Winn-Dixie Stores, Inc., urges that the Circuit Court lacked jurisdiction to entertain a “Petition for Enforcement” filed by the Broward County Board of County Commissioners on behalf of the Human Rights Board of Broward County. We conclude the court below did not have jurisdiction and grant the writ.

In 1978, the Board of County Commissioners of Broward County enacted Ordinance No. 78-29 entitled “Broward County Human Rights Ordinance.” This ordinance established certain standards regarding discrimination and created the Human Rights Board as a County Agency. The purpose of the Board was to consider complaints regarding discrimination in general. This case involves alleged racial discrimination in employment practices by petitioner, Winn-Dixie Stores, Inc. The ordinance established procedures for investigation and hearings on employee discrimination grievances and empowered the Board to impose sanctions upon a party found guilty of discrimination. Section 507 of the ordinance provides that, “[i]f the respondent does not accept to be bound by the order, then the Board may seek enforcement through a de novo judicial proceeding in the Circuit Court.”

Pursuant to this County Ordinance, Mr. Charles Paige, a resident of Broward County, filed a complaint with the Human Rights Board claiming Winn-Dixie discriminated against him as an employee. The Board eventually entered an order finding that Winn-Dixie had engaged in discriminatory practices. An order was entered requiring that Mr. Paige be reinstated with back pay, that the unlawful discriminatory practices cease, and that Winn-Dixie file a written report detailing its compliance with the order and pay attorneys’ fees. No affirmative steps were taken in compliance with the order of the Human Rights Board and, on January 13, 1981, the Broward County Board of County Commissioners filed a proceeding in Circuit Court entitled “Petition for Enforcement.” This petition attached a copy of the order of the Human Rights Board and sought an order from the Circuit Court enforcing the Board’s order. The defendant, Winn-Dixie Stores, Inc., filed various motions attacking the jurisdiction of the circuit court over the subject matter of the litigation. These motions were denied and the defendant was ordered to respond to the Petition. The Petition for Enforcement was clearly not in the nature of a de novo proceeding.

Certain facts are agreed upon by the parties. On the .same day Mr. Paige filed his complaint with the Broward County Human Rights Board, he also filed a complaint with the Federal Equal Employment Opportunity Commission (EEOC) asserting the same acts of discrimination as were made to the Human Rights Board. The EEOC made an investigation and determined that there was no reasonable cause to believe that the allegations of discrimination were true. The EEOC issued a Notice of Right to Sue and on April 8, 1981, Mr. Paige, represented by counsel, filed a complaint in the United States District Court against Winn-Dixie and others alleging discrimination under Title VII of the Federal Civil Rights Act of 1964. This action is still being prosecuted and remains pending in the Federal District Court. The relief sought by Broward County on Mr. Paige’s behalf in the action in the State Circuit Court and the relief sought by Mr. Paige in his Federal Title VII suit are substantially the same.

The parties also agree that Mr. Paige did not make a complaint of discrimination to the State of Florida Commission on Human Relations created under Section 23.163, Florida Statutes (1979), nor has he filed an action in circuit court pursuant to Section 23.167(12), Florida Statutes (1979).

Petitioner contends the Circuit Court lacks subject matter jurisdiction over the controversy and that the motions to dismiss based upon this ground should have been granted. We agree. The County seeks to have the Circuit Court confirm and enforce an order entered by the County Human Rights Board. The County ordinance which creates the Board also purports to create jurisdiction in the Circuit Court to enforce the orders of the Board. Article V, Section 5(b) of the Florida Constitution provides that Circuit Courts shall have original jurisdiction not vested in the County Courts. Article V, Section 20, provides that the Legislature may make such changes in the jurisdiction of the Circuit Court as would not be inconsistent with Sections 1 through 19 of the Article. Section 26.012, Florida Statutes (Supp.1980) defines the jurisdiction of the Circuit Courts to be exactly as that set forth in Article V, Sections 5 and 20 of the Constitution.

Basically, the Circuit Courts of Florida do not have jurisdiction to enforce municipal or county ordinances. Article V, Section 6(b) provides that County Courts shall have uniform jurisdiction throughout the State and that such jurisdiction shall be as prescribed by general law. Pursuant to this constitutional mandate, the Legislature has described the jurisdiction of County Courts in Section 34.01, Florida Statutes (Supp.1980), which provides: “County Courts shall have original jurisdiction: .. . (b) Of all violations of municipal and County ordinances.... ” In short, County Courts have jurisdiction to enforce municipal and county ordinances and the vesting of said jurisdiction in the County Court deprives the Circuit Courts of this jurisdiction. Only the Florida Constitution and the Legislature, where authorized by the Constitution, may confer jurisdiction on the courts of this State. Art. V, §§ 5(b), 20; and § 26.012, Fla.Stat. (Supp.1980). The cause of action for enforcement of an order of the Broward County Human Rights Board in the Circuit Court is unauthorized. If Winn-Dixie is guilty of violating the Bro-ward County Ordinance, then this violation may not be remedied in the Circuit Court pursuant to the statutes and Constitution of this State. Obviously, the Circuit Court may be given jurisdiction over such matters, but it must be by general law. Indeed, Section 23.167(12), Florida Statutes (1979), provides that any aggrieved person may bring a civil action against an employer for employment discrimination. The parties to the present action agree that Chapter 23 is not involved herein and does not form the jurisdictional basis for the action below. Clearly Mr. Paige could have brought an action in circuit court but he chose instead to proceed in federal court under Title VII.

Although the pleading filed by the County was entitled a “Petition for Enforcement” and sought confirmation and enforcement of the Board’s order, the County argues now that the suit was actually one for injunction of a public nuisance. In the alternative, the County asserts this was simply a suit for injunction under the general equitable jurisdiction of the Circuit Court. Once again, the pleading filed belies these arguments. The Petition sought confirmation and enforcement of an order rather than injunctive relief based upon the inadequacy of other legal remedies. Mr. Paige clearly has remedies available. He has proceeded before the EEOC and presently has pending an action in Federal District Court under Title VII of the 1964 Civil Rights Act. He further had an action available to him pursuant to Section 23.167(12), Florida Statutes (1979).

We conclude that the court below lacked jurisdiction over the subject matter, and the writ of prohibition is hereby granted. The matter is remanded to the trial court with directions to dismiss the action.

PROHIBITION GRANTED.

DOWNEY and HERSEY, JJ., concur.

      . A copy of the ordinance which was attached to the Petition for Enforcement filed before the Circuit Court provided for “de novo” judicial proceedings. We were advised by counsel at the time of oral argument on December 3,1981, that an amendment had occurred in the ordinance deleting the “de novo” requirement.

      . Although certain documents were filed in the proceedings before the Human Rights Board by Winn-Dixie, the matter was not defended on the merits by presentation of evidence or argument of counsel.

      . The relief sought in the Title VII suit is actually somewhat broader than that sought on behalf of Mr. Paige in the state court action. The Title VII suit contains claims for damages due to mental distress and for punitive damages. These allegations of damages are not made in the state court action, but these differences are not germane to our consideration here.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Barbara O. FOREMAN, Appellant, v. COLUMBIA COUNTY SCHOOL BOARD, Appellee.
    No. TT-353.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Martin L. Black, Lake City, for appellant.
    Michael Murphy, Lake City, for appellee.
   WENTWORTH, Judge.

Appellant, a teacher for fourteen years in the Columbia County School System holding a continuing teacher’s contract, was recommended by the superintendent of schools to fill a newly created administrative position of director of secondary education. The Columbia County School Board abolished the position prior to acting on the superintendent’s written recommendation. The superintendent of schools then recommended appellant for the position of assistant principal at Columbia High School. The school board tabled that recommendation without acting on it. Appellant filed a request with the Columbia County School Board for a hearing pursuant to Florida Statutes § 120.57 to determine whether good cause existed for the action taken by the board with regard to the two positions for which appellant had been recommended. The board denied appellant’s request for a hearing. In this timely appeal, appellant argues it was improper for the school board to deny her a hearing. We agree and reverse.

A school board is statutorily required to exercise the powers and perform the duties listed in Florida Statutes § 230.23. One of those requirements is that the school board must “act on the written recommendations submitted by the superintendent of persons to act as administrative, supervisory . .. and all other non-instructional personnel and appoint persons to fill such positions.” Section 230.23(5)(b), Florida Statutes. The term “act on the written recommendations” is defined in the statute as requiring the school board to consider the recommendations or nominations of the superintendent submitted as prescribed by law and prohibiting the school board from rejecting such recommendations or nominations except for good cause.

Appellee refers to language in McDowell v. School Board of Suwannee County, 365 So.2d 454 (Fla. 1st DCA 1978), distinguishing the earned status of nominees for continuing contracts from annual contract nominees, to support its contention that a nominee for an annual contract has no right to a statement of good cause for the board’s rejection of the nomination. Appellee’s position is clearly not supported by the McDowell decision that nominees for continuing contracts are entitled to a hearing. We find it unnecessary to consider the validity of the further McDowell inference, by dictum, that a nominee for an annual contract instructional position may not be so entitled, since we are here concerned only with non-instructional nominations. Cf., Section 231.36, Florida Statutes.

In the present case, we are compelled to give effect to the clear mandate of § 230.23(5)(b) that appellant be given a statement of good cause for the board’s failure to appoint her to the positions she had been recommended to fill. The right to request a hearing and respond is incident to appellant’s right to be informed of the reasons for the board’s failure to appoint her to those positions. McDowell, supra.

Appellee argues that even if appellant is entitled to a hearing, the proceeding need only be an informal hearing under § 120.57(2) rather than a formal proceeding under § 120.57(1), Florida Statutes. A formal hearing under § 120.57(1) is required, absent waiver, when disputed issues of certain material facts must be resolved and the substantial interest of a party will be determined. Chestnut v. School Board of Hillsborough County, 378 So.2d 1237 (Fla. 2nd DCA 1979); Bowling v. Department of Insurance, 394 So.2d 165, 174 n. 17 (Fla. 1st DCA 1981). Section 120.57(2) proceedings may in other circumstances be appropriate. Graham Contracting v. Department of General Services, 363 So.2d 810, 815 (Fla. 1st DCA 1978); United States Service Industries v. Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980); and United States Service Industries v. Department of Health and Rehabilitative Services, 385 So.2d 1147, 1149 (Fla. 1st DCA 1980).

Accordingly, the order below denying appellant’s request for a hearing is reversed and this cause is remanded for action consistent with this opinion.

REVERSED and REMANDED.

ERVIN and SHAW, JJ., concur.


author: SHAW, Judge.

text:
    Marlene M. GAMBRELL, Appellant, v. David Earl TURNER and Government Employees Insurance Company, a foreign corporation, Appellees.
    Bankruptcy No. YY-299.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 27, 1982.

      G. Frank Godfrey of Wood, Godfrey & Carlin, P. A., Jacksonville, for appellant.
    Earl M. Barker of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   SHAW, Judge.

This is an appeal from a final order dismissing Gambrell’s complaint and denying leave to file a second amended complaint with substituted service. We reverse and remand.

In April, 1977, Gambrell filed a complaint alleging that Turner’s negligent operation of his automobile in March, 1974, caused a collision with and injury to Gambrell, for which Government Employees Insurance Company (GEICO) is liable as Turner’s insurer. Since that time, Gambrell has been unable to effect personal service on Turner. Attempted substituted service on Turner was quashed, and leave to amend with substituted service was denied. Affidavits by Gambrell’s attorney and two private investigators aver that Turner has relocated a number of times within and without Florida, has been employed in at least one other state, and is either concealing his whereabouts or has become a non-resident. These affidavits are uncontroverted except for GEICO’s conclusionary assertion that they fail to show a diligent attempt to effect service of process.

Florida Rule of Civil Procedure 1.190(a) requires that Gambrell obtain leave of court to amend her complaint. We recognize the presumption of correctness given to the trial court’s denial of such leave. However, by its terms, Rule 1.190(a) provides that leave should be freely given when justice so requires. Gambrell’s uncontroverted affidavits state a prima facia case for concluding that Turner has either become a nonresident or is concealing his whereabouts, and that substituted service is appropriate. The trial court should not deny leave to amend unless the privilege to amend has been abused or the complaint is clearly not amendable. Highlands County School Board v. K. D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2nd DCA 1980). Accordingly, we conclude that justice requires that leave to amend under Florida Rule of Civil Procedure 1.190(a) and substituted service under Sections 48.171 and 48.151, Florida Statutes (1980) be granted.

REVERSED and REMANDED for further proceedings in accordance with this opinion.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.


author: SHIVERS, Judge.

text:
    Elizabeth McKENNEY, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, and General Adjustment Bureau, Appellees/Cross-Appellants. SCHOOL BOARD OF PALM BEACH COUNTY, and General Adjustment Bureau, Appellants, v. Elizabeth McKENNEY, Appellee/Cross-Appellant.
    Nos. ZZ-194, ZZ-404.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Rehearing Denied Feb. 5, 1982.

      Timothy H. Kenney, of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant and appellee/cross-appellant Elizabeth McKenney.
    John Neil Buso, of Walton, Lantaff, Schroeder & Carson, Miami, for appellants and appellees/cross-appellants School Board of Palm Beach County, and General Adjustment Bureau.
   SHIVERS, Judge.

This is a consolidated appeal from two workers’ compensation orders. In Case No. ZZ-194, claimant appeals from the entry of an order of modification partially denying her claim for temporary total disability benefits and finding she sustained a 35% permanent partial psychiatric impairment as a result of the accident. The employer/carrier cross-appealed the entry of the order of modification, contending there was no mistake in the determination of fact by the deputy commissioner and no change in the claimant’s condition since the entry of the previous order. In Case No. ZZ-404, the employer/carrier appeal from an order awarding attorney’s fees and costs and the claimant cross-appeals the award of costs. We affirm in part and reverse in part.

Claimant suffered a compensable industrial accident on June 4, 1977, when the school bus she was driving was struck by a car. At the time of the accident, she did not appear to be injured. However, several days later she began to complain of pain in her back, hips, and legs. She received treatment from numerous physicians who could not find a physical cause for her complaints although she continued to suffer from persistent pain. On February-9, 1978, a hearing was held which resulted in the entry of an order on October 5, 1978, finding the claimant sustained no permanent disability as a result of the accident.

From July 3, 1979, through January 8, 1980, claimant received treatment from Dr. Vaughn, a psychiatrist, who opined that she suffered from a “psycho-physiological mus-culoskeletal reaction” related to the accident. He concluded that her condition was not treatable and there was very little probability she could return to the labor market. He explained that claimant’s persistent pain and disability was of “psychological origin” with no physical basis although she suffers from “real pain.”

Claimant then filed a petition for modification of the order entered October 5, 1978. On November 25, 1980, the deputy commissioner entered the appealed order of modification, finding there was a change in claimant’s condition since the previous order and further finding that a mistake in fact was made in the previous order. He awarded claimant temporary total disability benefits from July 3, 1979,' through January 8, 1980, but denied temporary total disability benefits between February 9,1978, through July 3,1979, because “the claimant was not seeking work and was not under active medical care.” The deputy commissioner found that claimant did sustain a permanent psychological disability as a„ result of the accident, contrary to the previous order’s finding of no permanent disability, and awarded claimant a 35% permanent partial psychological disability. He found the claimant failed to show a loss of wage-earning capacity beyond the 35% impairment rating because she failed to conduct a good faith job search.

On December 23,1980, the second appealed order was entered awarding claimant an attorney’s fee of $5,300 and $1,251.80 in costs.

We reverse the appealed order of modification awarding claimant 35% permanent partial disability benefits because, contrary to the deputy commissioner’s findings, there was no mistake in the determination of fact and no change in claimant’s condition since the previous order of October 5, 1978. Section 440.28, Florida Statutes (1977). In order to modify a prior workers’ compensation order on the basis of a mistake in the determination of fact, evidence offered in support of the modification must not be merely cumulative; it must do more than add to or controvert the evidence already taken and considered by the deputy commissioner. Beaty v. M & S Maintenance Co., 124 So.2d 868 (Fla.1960). A reanalysis of the prior record by the deputy commissioner and a change in his conclusion as the result of retrospective exploration of the original record is not sufficient to justify a modification. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960). The previous order found that claimant had no permanent disability as a result of the accident. In entering the order of modification and awarding claimant permanent partial disability benefits, the deputy commissioner relied upon the cumulative testimony of Dr. Vaughn. Dr. Vaughn testified the claimant presently has the same symptoms and the same psychological condition that she had shortly after the accident in January 1977. Dr. Auld examined the claimant after the previous order and testified that she had the same complaints at that time as he found in reviewing the reports of the physicians who examined or treated the claimant prior to the previous order. Dr. Scherer examined the claiihant on September 27, 1980, and concluded she suffered from “functional overlay” which means that her symptoms were of psychological origin. Dr. Hayslip, who treated the claimant prior to the previous order, opined the claimant had “considerable functional overlay” and this diagnosis was actually noted by the deputy commissioner in the previous order denying permanent disability benefits.

Additionally, no one, including the claimant, testified that her condition had changed since the previous order so the modification order is also not sustainable on the basis of a change of condition.

Although there is sufficient evidence to support the unappealed award of temporary total disability benefits from July 3, 1979, to January 8, 1980, the deputy commissioner was correct in denying temporary total disability benefits from February 9,1978, to July 3,1979. There is no medical testimony in the record indicating the claimant was temporarily and totally disabled between February 9,1978, and July 3, 1979, and, based upon her own testimony, she failed to look for employment after February 8, 1978. A claimant who fails to produce medical evidence that she was unable to work and who does not test her ability to work, has failed to meet her burden of proving that she was temporarily and totally disabled. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981).

In light of our reversal of the order of modification, we must also reverse the subsequent order awarding claimant attorney’s fees and costs since this award was predicated upon the award of permanent partial disability benefits. However, since claimant’s attorney secured the unappealed award of temporary total disability benefits to the claimant, we remand to the deputy commissioner to determine a reasonable attorney’s fee and the amount of properly assessable costs.

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

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


author: BASKIN, Judge.

text:
    William M. HANSEN, Petitioner, v. DEAN WITTER REYNOLDS, INC. and Phillip Pauze, Respondents.
    No. 81-1878.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 28, 1982.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and Curtis Carlson, Miami, for petitioner.
    Smathers & Thompson and Hugh J. Turner, Jr., Miami, for respondents.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

By Petition for Writ of Certiorari, William M. Hansen challenges a trial court order which stayed proceedings and compelled him to arbitrate his claims against a securities brokerage firm and one of its employees for negligence and fraud in options transactions. Certiorari is the appropriate method of review. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980). We hold that respondents, by answering the complaint without demanding arbitration, waived their rights, Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977); their conduct was inconsistent with the exercise of a right to arbitrate, Roberts Construction Co. v. Masters & Company, Inc., 403 So.2d 1114 (Fla. 5th DCA 1981), even though they asserted Hansen’s failure to arbitrate as an affirmative defense. We hold, therefore, that the trial court departed from the essential requirements of law, and we quash the order pertaining to arbitration.

Our decision renders it unnecessary for us to review the enforceability of the arbitration clauses contained in the Customer’s Agreement and Options Trading Agreement, both of which provide that New York law governs.

For these reasons, we grant Petition for Writ of Certiorari and quash the order compelling arbitration. We remand the cause for further proceedings.


author: BARKDULL, Judge.

text:
    Beverly FERGUSON and Emanuel Edelstein and George Goldblum d/b/a MG Investments, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION and Liberty Mutual Insurance Company, Appellees.
    No. 81-190, 81-850.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Feb. 4, 1982.

      Pelzner, Schwedock, Finkelstein & Klaus-ner and Joseph J. Finkelstein, McCormick, Bedford & Backmeyer and Thomas E. Back-meyer, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   BARKDULL, Judge.

Beverly Ferguson, an employee of a tenant in a building owned by M.G. Investments, entered the cab of an automatic elevator on the tenth floor. The elevator started down, picked up speed and came to a sudden stop at the sixth floor, due to the third strata of emergency stopping devices. The stop was abrupt, like a “bomb going off in the building”. The plaintiff was thrown to the floor of the elevator cab, suffering injuries.

Ferguson brought suit against Emanuel Edelstein and George Goldblum, d/b/a M.G. Investments, as owner of the building including the elevator and the automatic cab thereof, and Westinghouse Electric Corporation, the company that designed, manufactured, installed and serviced the elevator pursuant to a written agreement with M.G. Investments. M.G. Investments cross-claimed against Westinghouse, contending that if it was liable to the plaintiff the cross-defendant was liable over to the cross-plaintiff because of their contractual relationship.

At trial, the plaintiff presented her case under the theory of res ipsa loquitur. At the conclusion of the plaintiff’s case, the trial court directed a verdict and ultimately entered a final judgment for both defendants on plaintiffs claim and subsequently entered a final judgment for the cross-defendant on the crossclaim because of the judgment theretofore entered on the directed verdict. The plaintiff has appealed the adverse final judgment entered on the directed verdict at the conclusion of her case, and M.G. Investments has appealed the adverse final judgment on its crossclaim. The cases have been consolidated for disposition in this court.

We reverse both final judgments. The plaintiff was a business invitee in the building owned by the defendant, M.G. Investments. She entered an automatic elevator cab in a highrise building and the elevator “had a momentary interruption of normal operation”, which caused it to come to other than a normal stop causing injuries to her. The evidence disclosed that the plaintiff did nothing to cause the cab to come to an abrupt stop. The defendants had complete ownership and control of this automatic elevator cab. Such a vehicle is uniquely under the control and maintenance of the defendants and the doctrine of res ipsa lo-quitur is particularly applicable in elevator cab cases. Commercial Union Insurance Co. v. Street, 327 So.2d 113 (Fla. 2d DCA 1976); Otis Elevator Co. v. Seale, 334 F.2d 928 (5th Cir. 1964); Bond v. Otis Elevator Co., 388 S.W.2d 681 (Tex.1965); 21 Fla. Jur.2d, Elevators and Escalators, § 10; 26 Am.Jur.2d, Elevators and Escalators, §§ 67-69; Anno., 64 A.L.R.3d 950, § 15, page 978.

We reverse both final judgments and return the matter to the trial court for purposes of a new trial.

Reversed and remanded with directions.

      . M.G. urges that the directed verdict was correct as to it because it did not control or maintain the elevator; this was the contract responsibility of Westinghouse. M.G. may prevail on its crossclaim if it is ultimately held liable to the plaintiff, but the maintenance contract will not relieve M.G. from liability to passengers injured in the elevator cab owned by it, which partakes of a dangerous instrumentality. Commercial Union Insurance Co. v. Street, supra; Tippecanoe Loan & Trust Co. v. Jester, 180 Ind. 357, 101 N.E. 915 (1913); Compare: Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959).

      . Anno., 64 A.L.R.3Ü 950.


author: PER CURIAM.

text:
    SUN BANK OF OCALA, as guardian of the property of George E. Stahl, Incompetent, Dorothy Tindell Gilleon, the wife of George E. Stahl, and Donald J. LaPorte, Appellants, v. INTERNATIONAL HARVESTER COMPANY, a foreign corporation, Harold Harrington Howard, Sr., and Harold Harrington Howard, Jr., Appellees.
    No. 81-1974.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Feb. 12, 1982.
    Robert J. Galamaga, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

We find no abuse of discretion in the trial court, under Section 47.122, Florida Statutes (1979) [forum non conveniens], transferring plaintiffs’ personal injury cause of action to the county where the accident which caused the injury occurred, when 95 of the 99 witnesses listed by the plaintiffs live outside of the Eleventh Judicial Circuit and 80 witnesses either live in the county where the accident occurred or in nearby counties. See: Orange Blossom Hills, Inc. v. Vice, 402 So.2d 504 (Fla. 3d DCA 1981); Kilpatrick v. Boynton, 374 So.2d 557 (Fla. 4th DCA 1979); Kelly-Springfield Tire Company v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978); Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); Gaboury v. Flagler Hospital, 316 So.2d 642 (Fla. 4th DCA 1975); Peterson, Howell and Heather v. O’Neill, 314 So.2d 808 (Fla. 3d DCA 1975); Sec. 47.122, Florida Statutes (1977).

Affirmed.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. M.T.S., a child, Appellee.
    No. 81-325.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 27, 1982.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellant.
    Joseph M. Gersten, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

M.T.S. was born displaying symptoms of drug withdrawal and there were indications that the infant had sustained brain damage. When the child was only two weeks old, the State of Florida petitioned the circuit court to declare the child a dependent, pursuant to Sections 39.408 — 39.41, Florida Statutes (1979), alleging as a basis for the dependency adjudication that the child was: (a) abandoned; (b) abused; or (c) neglected as those terms are defined by Section 39.01, Florida Statutes (1979).

The initial hearing was continued because the mother was hospitalized due to her mental condition. At the second hearing, the mother appeared and testified to the following: (1) she had attempted to slash her wrists; (2) another sibling child was in foster care; (3) her sole means of support was $220 received from social security benefits; and (4) she was unable to care for the child because she was suffering from an hereditary mental illness and was presently hospitalized. The child’s father was unknown. The infant’s maternal grandfather could not accept care for the child because he had no one to look after the child while he worked. Independent evidence also established the mother’s incapacity to provide care, nurture, and support to the child. At the conclusion of the hearing, the trial court reserved ruling on the dependency issue and continued the hearing for two months. During that time, the child remained in shelter care. After a third hearing, the court entered the present order denying the petition for a determination of dependency on a finding that the evidence did not activate Chapter 39, Florida Statutes (1979).

The trial court found that the child was not abandoned for a period of six months or longer as required by Section 39.01(1), supra. There was no conduct on the part of the mother that would constitute abuse as defined by Section 39.01(2), supra. The mother cannot be said to have neglected her child as defined by Section 39.01(27), supra, because the court found she was not financially able. See, In the Interest of P.S. v. State, 384 So.2d 656 (Fla. 5th DCA 1980). We agree with these findings by the trial court.

The state then argues that where a child cannot be deemed dependent by virtue of Chapter 39, supra, the circuit court, under its inherent jurisdiction to protect minors, can declare a child dependent. The trial court found that Chapter 39, supra, was the exclusive means by which a child may be declared a dependent. We agree.

Our review of the common law indicates that, historically, ill treatment or neglect would warrant a change of child custody. 14 Ruling Case Law § 46, Infants (1916). Misconduct or unfitness would likewise warrant a change of custody from parent to some third party. 20 Ruling Case Law § 14 Parent and Child (1918). Clearly, by Section 39.01, supra, the Legislature sought to restrict the cases in which a child could be taken away from its parents. Because the same general grounds which existed at common law have been made more stringent by statute, it is apparent that the Legislature has preempted and displaced the common law in this area. See, 3 Fla. Jur. Statutes §§ 112, 130 (1974).

In concluding that Chapter 39, supra, constitutes the sole and exclusive means by which the circuit court can declare a child to be dependent, the trial court also observed that this constituted a “tragic oversight.” We reluctantly concur with the ruling of the trial court as well as his commentary. Obviously, there is a hiatus in Chapter 39, supra, whereby a child of a parent who is impoverished and suffering from mental illness, drug abuse or alcoholism will not be protected for six months after the onset of the parent’s illness.

Affirmed.

      . We observe that we are not here concerned with a great medical emergency whereby the state would be permitted to take custody of the child in order to provide such treatment. See, In the Interest of Ivey, 319 So.2d 53 (Fla. 1st DCA 1975).


author: HENDRY, Judge.

text:
    Burton LEVEY, Appellant, v. Michael J. GETELMAN, Appellee.
    No. 80-2022.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Feb. 1, 1982.

      Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin, Miami, for appellant.
    Lapidus & Stettin and Herbert Stettin, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

This is an appeal from a summary final judgment in favor of the defendant below in an action seeking damages, recision and cancellation of a contract for the sale of land on the grounds of fraudulent misrepresentation and breach of fiduciary duty. Appellant Levey, plaintiff in the court below, contends that genuine issues of fact exist precluding summary judgment. We agree and reverse.

Burton Levey and Michael Getelman were co-beneficiaries of a land trust which owned a small office building in downtown Miami where the parties practiced law. After Levey moved his practice to another location in March, 1977, Getelman remained in the building to manage the property. In July, 1978 the parties became aware that the City of Miami had an interest in acquiring the trust property. The City had the property appraised by two independent appraisers, but the parties were never told of. the value. Subsequent to this period Levey continually inquired of Getelman whether he had heard anything from the City with regard to the appraisals or possible acquisition. Although there was evidence to the contrary, Getelman insisted that he was never contacted by the City concerning purchase of the building. Early in 1979 the parties began negotiations, and Levey eventually sold his one-half interest in the property to Getelman for $100,000, the contract for sale stipulating that neither party had received any offer for purchase from a third party.

A month after the sale, the City of Miami made Getelman an offer for the property which was not acted upon, and in July, 1979, a condemnation action was filed by the City in circuit court. Levey was named and served as co-executor and co-trustee of the estate of Harry B. Schwartz, one of the original beneficial owners of the property. Levey then filed this suit in October, 1979, seeking injunctive relief to prevent Getel-man from receiving any condemnation proceeds, and damages for fraud and breach of fiduciary duty as well as imposition of a constructive trust and recision. Getelman moved for summary judgment, denying breach of any duty, asserting that no representation had been made, and contending that Levey had waived any claims by accepting mortgage payments after learning of the City’s offer. The trial court granted Getelman’s motion as to the counts for recision and for damages on the grounds that there was no genuine issue as to any material fact, Levey was bound by the prior condemnation judgment, and Levey had continued to accept mortgage payments from Getelman after he became aware of the alleged fraud. The court also dismissed as moot the remaining counts of the complaint seeking injunctive relief and imposition of a constructive trust on the proceeds from the condemnation action since the property had been sold and the trust divested of the proceeds.

Without conceding the correctness of the summary judgment as to recision, but recognizing that this remedy would be of no practical effect at this point, Levey contends that the summary judgment on the damage issue was erroneous since there were facts in the record to support an action for fraud and breach of fiduciary duty, and none of the affirmative defenses raised would preclude recovery as a matter of law.

On a motion for summary judgment, the existence or nonexistence of a material fact issue is the crucial question. Two requisites must be met in order to grant a summary judgment: (1) no genuine issue of material fact, and (2) one of the parties must be entitled to judgment as a matter of law on the undisputed facts.

Summary judgment is improper where, as in this instance, the pleadings and record reflect conflicting issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Fontainebleau Hotel Corp. v. Southern Florida Hotel and Motel Ass’n, 294 So.2d 390 (Fla. 3d DCA), cert. denied, 304 So.2d 132 (Fla.1974). Unresolved issues exist relative to whether Getelman’s representation to Levey that he had no knowledge regarding the City’s interest in the property was false and whether Levey relied upon this representation. See American International Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975) for discussion of the elements necessary to a fraud action. See also Besett v. Basnett, 389 So.2d 995 (Fla.1980) (recipient may rely on truth of representation even though its falsity could have been ascertained had investigation been made, unless recipient knows representation to be false or its falsity is obvious.) The evidence demonstrates that the City wrote to Getel-man and the neighboring property owner in January, 1979 about meeting to discuss acquisition of the property. Although Getel-man denies receiving the letter, proof of mailing (and the fact that the neighbor received his letter), raises a presumption that it was received by the addressee. Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973). Our determination that summary judgment was improvidently granted in this case is buttressed by the fact that fraud is not ordinarily a suitable subject for summary judgment Nessim v. DeLoache, 384 So.2d 1341 (Fla. 3d DCA 1980); Bryant v. Small, 236 So.2d 150 (Fla. 3d DCA 1970).

Unresolved questions also exist relative to whether Getelman owed a fiduciary duty to Levey as manager of their mutual financial interests and whether Getelman’s actions were a breach of this duty. See Donahue v. Davis, 68 So.2d 163 (Fla.1953); Fuller v. Pierce, 92 Fla. 129, 109 So. 238 (1926); Reaves v. Hembree, 330 So.2d 747 (Fla. 1st DCA 1976), cert. denied, 345 So.2d 423 (Fla. 1977); Prescott v. Kreher, 123 So.2d 721 (Fla. 2d DCA 1960), cert. denied, 131 So.2d 206 (Fla.1961).

We also agree with Levey’s final point which asserts that none of the affirmative defenses raised would preclude judgment as a matter of law. Aside from denying any knowledge of the City’s intentions, Getelman defends this action primarily by alleging that Levey waived any remedy by continuing to accept mortgage payments after learning of the City’s offer. Although Levey, by accepting payment, ratified the contract thus barring a claim for recision, he has not waived his right to damages for the fraud. Rolf’s Marina, Inc. v. Rescue Service & Repair, Inc., 398 So.2d 842 (Fla. 3d DCA 1981). Additionally, the trial court’s grant of summary judgment on the basis that Levey’s claim was barred by res judicata since he had the opportunity to litigate this claim in the condemnation proceeding was erroneous. Levey’s fraud claim is an entirely different cause of action and was not required to be raised in the prior proceeding. See Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953).

In light of unresolved issues of material fact, we reverse the summary final judgment under review and remand the cause to the trial court for further proceedings.

Reversed and remanded.

      . The property was originally owned in 25% shares by four individuals. Two of the owners sold out and at the time of this controversy, the beneficial interest in the trust was owned by Levey and Getelman alone.

      . In January, 1981, Getelman settled with the City for $778,405.57.


author: DANIEL S. PEARSON, Judge.

text:
    Julia McCain LAMPKIN-ASAM, Appellant, v. MIAMI DAILY NEWS, INC., a Florida Corporation, d/b/a The Miami News, and Timothy Johnson, as personal representative of the late Terry Johnson King, Appellees.
    No. 80-2053.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 27, 1982.

      Joel V. Lumer, Miami, for appellant.
    Joseph P. Averill, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Julia McCain Lampkin-Asam, the plaintiff below, wrote a book describing the events which, in Asam’s view, had precluded her from receiving research grants for almost a decade and developing a cure for cancer. A major theme of the book, entitled “Malignant Intrigue,” was that Asam’s professional competence as a cancer scientist had been disparaged and her mental stability questioned by people in the “cancer establishment.” Asam’s book identified one Dr. Wilhelmina Dunning, her former supervisor, as the primary villain whose statements concerning Asam had contagiously spread through the cancer research community so as to create, as the plaintiff’s title aptly put it, a malignant intrigue.

In 1973, Asam, wanting to draw public attention to her research and need for research funds, brought her 753-page book to the attention of The Miami News. The late Mrs. Terry Johnson King, then Lifestyle Editor of the News, interviewed Asam and decided to write a column about “Malignant Intrigue” and its author. King read the book and concluded that it was a rather vitriolic attack on Dr. Dunning. King decided to get Dunning’s side of the story before writing her column and interviewed Dunning on the phone. King then wrote the column, which, overall, was an unflattering evaluation of the plaintiff’s malignant intrigue theory. The column included a quote about Asam attributed to Dunning:

“To which the highly respected Dr. Dunning says, ‘She [Asam] is very emotionally disturbed, and has no qualifications to do cancer research. She may have gotten her doctorate from George Washington University, but I suspect they gave her the degree to get rid of her.’ ”

Asam then sued Dunning, The Miami News, and Mrs. King alleging defamation. From a summary judgment entered in favor of The Miami News and the estate of Mrs. King, Asam appeals.

We affirm the summary judgment. The determination that a person is a public figure is properly for the court. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Gadsden County Times, Incorporated v. Horne, 382 So.2d 347 (Fla. 1st DCA 1980); Belli v. Orlando Daily Newspapers, Inc., 389 F.2d 579 (5th Cir. 1968); Logan v. District of Columbia, 447 F.Supp. 1328 (D.D.C.1978); Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.D.C.1977), aff’d, 578 F.2d 442 (D.C.Cir.1978). Asam’s efforts to arouse public indignation and influence the allocation of public funds, Gibson v. Maloney, 231 So.2d 823 (Fla.1970), second appeal, 263 So.2d 632 (Fla. 1st DCA 1972); Murphy v. Daytona Beach Humane Society, Inc., 176 So.2d 922 (Fla. 1st DCA 1965); participation in public debates on public health matters, Yiamouyiannis v. Consumers Union of the United States, Inc., 619 F.2d 932 (2d Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 117, 66 L.Ed.2d 46 (1980); Exner v. American Medical Association, 12 Wash.App. 215, 529 P.2d 863 (1974); publication and distribution of the autobiographical “Malignant Intrigue” and other writings, lectures and speeches, and efforts to seek substantial publicity, including the very publicity which is the subject matter of this action, Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied sub nom. Hotchner v. Doubleday & Company, Inc., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977); Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976); Guitar v. Westinghouse Electric Corporation, 396 F.Supp. 1042 (S.D.N.Y. 1975), among other things, aggregately show her, as a matter of law, to be a public figure. Wolston v. Reader’s Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979).

Asam’s status as a public figure requires her to establish that the newspaper and Mrs. King acted with actual malice in the constitutional sense, Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), that is, the publication involved was deliberately falsified or published recklessly despite the publisher’s awareness of probable falsity, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gibson v. Maloney, supra. Viewing the evidence most favorably to the plaintiff, to determine whether there exists a genuine issue of material fact upon which a reasonable jury could find with convincing clarity that the defendants acted with such actual malice, we find absolutely no clear and convincing evidence that the defendants knew that the information published was incorrect or that the defendants had any degree, much less a high degree, of awareness of the probable falsity of this information. See Long v. Arcell, 618 F.2d 1145 (5th Cir. 1980).

Mrs. King’s testimony in her deposition is, unequivocally, that she accurately quoted Dr. Dunning. On the other hand, Dunning’s testimony is that she was “not sure” if she made the statements. Dunning doubted that she would remember the contents of a conversation which took place years before. While she did not recall the conversation with Mrs. King, she admitted some recollection of the book being reviewed, and because “... I had been maligned in the book, she might have contacted me to find out if the statements were true.” Dunning believed she was “misquoted,” because she would not have said those things “in that form.” She admitted that responses could possibly have been drawn from her in a succession of questions which could account for the eventual form of the statement attributed to her. Apart from whether she revealed it to Mrs. King during the telephone interview, it was, in fact, Dunning’s opinion that George Washington University might have given Asam her degree to get rid of her. Dunning admitted she could have said that the plaintiff was “not qualified to do independent cancer research.” But most significantly, Dunning said that if she made the remarks attributed to her by Mrs. King, she made them facetiously and did not “grant permission to anybody to publish such a facetious remark.”

In Long v. Arcell, supra, the Fifth Circuit affirmed a judgment notwithstanding a jury verdict of compensatory and punitive damages in favor of a defamation plaintiff. The litigation was prompted by the newspaper article which stated that an ambulance service may have violated the law by operating without a license from the State Board of Health. The reporter testified that he was told by two Board of Health employees that the ambulance service had not been licensed. At trial, one Board of Health employee directly contradicted the reporter’s testimony, saying that he told the reporter that the ambulance service was licensed to operate. Moreover, the ambulance service’s lawyer asserted that, on the day before publication, he read the reporter a letter from the other Board of Health employee which stated that the ambulance service was authorized to operate. The Fifth Circuit held, 618 F.2d at 1148-49:

“The plaintiffs’ case rested almost entirely upon the testimony of Bradshaw [a Board of Health employee] and Wilson [the attorney for the ambulance service]. Theirs was the only testimony relating directly to the defendant’s state of mind. There was no documentary evidence which showed that the defendants knew their article was false or entertained serious doubts about its accuracy.[] In sum, the jury was left to decide the case based on the conflicting accounts of the conversations described above. If the applicable burden of proof had been a preponderance of the evidence, a jury verdict either way would have to stand. Similarly, if liability could be imposed on a clear and convincing showing of negligence, we would be hard pressed to disregard the jury’s verdict. We repeat, however, that the plaintiff’s burden was to prove actual malice by clear and convincing evidence that the defendants knew that their information was incorrect or had a ‘high degree of awareness of .. . [its] probable falsity.’ (citation omitted).
“Although the Constitution neither condones nor encourages careless journalistic practices, the journalist who merely is careless may not be held liable for defaming a public figure. That is because the interests we must consider in libel cases are not only those of the defamed and the defamer. If they were, the former would prevail with a greater degree of frequency. In all libel suits between a public figure and a publisher the public intervenes as a matter of right, and its interest must be considered. Only by limiting liability to those situations in which the publisher has acted with actual malice do we fully protect the public’s right to the benefits of a free and uncensored press.”

Where, as in the present case, the person to whom the quoted words are attributed has not unequivocally denied making the statement attributed to her; has denied only the form, but not the substance, so as not to rule out the possibility that she was mistakenly, but immaterially, misquoted; and has indeed allowed that she may have actually made the statements “facetiously”; the requisite high standard of proof is simply not met. In re McDonough, supra (“that high standard of proof usually would require more than one man’s word against another, especially where, as here, mistake can not be ruled out.”).

Our holding makes it unnecessary to consider the other contentions made by the appellees in support of the summary judgments, and we expressly do not rule upon them.

Affirmed.

      . The column also characterized the charges made by Asam in her book as “almost paranoical.” Since we find King’s characterization to be an expression of opinion based on facts set forth in the column, it is, in our view, entitled to absolute constitutional protection. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981). In Gertz v. Robert Welch, Inc., 418 U.S. 323, 329-340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), the Supreme Court said:
      “[U]nder the First Amendment, there is no such thing as a false idea. However pernicious an opinion might seem, we depend upon its correction not on the conscience of judges or juries but on the competition of other ideas.”

        See also Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976); Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.), cert. denied sub nom. Hotchner v. Doubleday & Company, Inc., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977); Loeb v. Globe Newspaper Co., 489 F.Supp. 481 (D.Mass.1980). Therefore, we devote the remainder of this opinion to the Dunning statement.

      . Dunning was earlier favored with a summary judgment. Asam’s appeal from that judgment was dismissed by this court as untimely filed. Asam unsuccessfully sought relief in the Florida Supreme Court from this dismissal. Lampkin-Asam v. District Court of Appeal, 364 So.2d 469 (Fla.1978).

      . This is the well-accepted test for evaluating the propriety of a summary judgment in a defamation case where actual malice in the constitutional sense must be shown. See Yiamouyiannis v. Consumers Union of the United States, Inc., supra; Long v. Arceli, 618 F.2d 1145 (5th Cir. 1980); Hahn v. Sargent, 523 F.2d 461 (1st Cir.), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438 (9th Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974); Nader v. deToledano, 408 A.2d 31 (D.C.App.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); National Association of Government Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980); In re McDonough, 296 N.W.2d 648 (Minn. 1980); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super.Ct. 588, 422 A.2d 625 (1980). The standard (convincing clarity, not preponderance) against which the evidence is examined is dictated by New York Times v. Sullivan, supra; but the manner of examining the evidence (viewing it most favorably for the non-moving party) in light of the standard is the same as in all summary judgment cases. See Guam Federation of Teachers, Local 1581 v. Ysrael, supra. Compare Wasserman v. Time, Inc., 424 F.2d 920, 922-23 (D.C. Cir.) (Wright, J., concurring), cert. denied, 398 U.S. 940, 90 S.ct. 1844, 26 L.Ed.2d 273 (1970). See generally Comment, The Propriety of Granting Summary Judgment for Defendants in Defamation Suits Involving Actual Malice, 26 Vill.L.Rev. 470 (1981).

      . A plaintiff claiming defamation now has access into the editorial process to procúre evidence bearing on the element of actual malice. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). Such a plaintiff may even discover the identity of confidential sources. Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980).

      . We note also that the theory of the plaintiff’s action against Dr. Dunning was that Dunning told Mrs. King exactly what was printed and that Dunning had lied. When the plaintiff lost that action, she shifted gears and said that Dunning never said these things, and the newspaper fabricated the statement. Dunning’s testimony is even more suspect considering that it was given when Dunning was a defendant facing a defamation action.


text:
    CITY OF NORTH MIAMI, a Florida municipal corporation, and Howard Neu, as Mayor, Appellants, v. Sig SCHY, Appellee.
    No. 81-349.
    District Court of Appeal of Florida, Third District.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Simon, Schindler & Hurst and Sharon B. Jacobs, Miami, for appellants.
    Brown, Huysman, Matthews & Singer and Cindy S. Lederman, Miami, for appel-lee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellee Schy’s term of appointment as the Group “A” member of the Personnel Board of the City of North Miami having expired in June, 1981, the main appeal is dismissed as moot.

The cross-appeal from the trial court’s refusal to accept jurisdiction over count II of appellee’s complaint seeking damages and attorney’s fees under 42 U.S.C. §§ 1983 and 1988 is affirmed on the authority of Maine v. Thiboutot, 448 U.S. 1, 3, 100 S.Ct. 2502, 2503, 65 L.Ed.2d 555, 558 n. 1 (1980), and Martinez v. California, 444 U.S. 277, 283, 100 S.Ct. 553, 558, 62 L.Ed.2d 481, 488 n. 7 (1980).


text:
    MONTECRISTI CONDOMINIUM ASSOCIATION, INC., Appellant, v. Lawrence J. HICKEY, et ux., and Crystal Lake Apartments, Inc., et al., Appellees. CRYSTAL LAKE VILLAS ASSOCIATION, INC., Appellant, v. Lawrence J. HICKEY, et ux., and Crystal Lake Apartments, Inc., et al., Appellees. Joseph DEPASQUALE, Appellant, v. Lawrence J. HICKEY, et ux., Crystal Lake Apartments, Inc., et al., Percy Rosemurgy and Jane Rosemurgy, Appellees.
    Nos. 79-118, 79-134 and 79-135.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 10, 1982.
    Howard L. Conklin of Tripp & Conklin, Fort Lauderdale, for appellant, Montecristi Country Club Apartments, Inc.
    William A. Solien, Lighthouse Point, for appellant, Joseph DePasquale.
    Kenneth R. Mikos of Devitt, Friedrich, Blackwell, Mikos & Ridley, P.A., Fort Laud-erdale, for appellant, Crystal Lake Villas Association, Inc.
    John R. Young, of Hamilton, James, Mer-kle & Young, West Palm Beach, for appel-lees, Rosemurgy.
   BERANEK, Judge.

These consolidated appeals grow out of complex litigation in a long-standing condominium recreational fee dispute. The controversy originated in a class action filed initially in 1971. Plaintiffs in the original action were residents of the Crystal Lake Subdivision. These owners of individual and condominium units brought a class action against various parties alleged to be responsible for the maintenance and management of Crystal Lago Beach Club, a recreational facility which the residents and condominium entities in Crystal Lakes used. The action sought termination of certain covenants requiring recreational fee payments. It also sought a declaratory decree as to various rights and duties between the parties. Defendants in this initial action filed various motions to dismiss questioning the propriety of the case as a class action. These motions were denied and the defendants filed answers, counterclaims and cross-claims. The defendants, so far as necessary for the purposes of this case, were the developer of the Crystal Lakes Subdivision, Robert Sullivan, and three corporations, Crystal Lake Development Corp., Crystal Lake Apartments, Inc., and Crystal Lake Golf Course, Inc. Mr. and Mrs. Rosemurgy, the owners of the land used for recreational purposes, were also sued as defendants.

A controversy arose between Robert Sullivan and Rosemurgy concerning which party was entitled to collect and receive the proceeds derived from the recreational fees charged on the Crystal Lake operation. This controversy became involved in the litigation and after substantial pretrial activity and discovery a non-jury trial and certain stipulations resulted in the entry of a partial final judgment on November 20, 1973. This partial final judgment provided in part that Rosemurgy would be the party entitled to collect rents from the plaintiff class members on the recreational facility and that Rosemurgy had the responsibility to maintain these recreational facilities. This partial final judgment retained jurisdiction of the parties and subject matter for the purpose of entering such further orders as might be necessary to properly implement the judgment. No appeal was attempted from the judgment of November 20,1973, and no party to the present appeal contests the procedure or the judgment.

Approximately one year and four months after the initial judgment, Rosemurgy filed a document entitled “Motion for Declaratory Relief.” This motion, which was eventually treated as a complaint for declaratory decree, sought a declaration that Rosemur-gy was entitled to collect escalated recreational fees from the living units within Crystal Lakes Subdivision based upon an increase in the cost of living as reflected by the wholesale price index of all commodities published by the United States Department of Labor. Rosemurgy alleged that its entitlement to escalated recreational fees was supported by the court’s own prior partial final judgment and by the terms and conditions of various recorded reservations and restrictive covenants between the parties. The individual unit owners living in Crystal Lakes Subdivision were represented by the Crystal Lake Villas Association, the 4100 Condominium Association, the Montecristi Condominium Association, and the Crystal Lake 4251 Condominium Association. Each of these condominium associations had been a class plaintiff in the initial suit and represented various unit owners living within the areas in question. In addition to the four condominium associations, Rosemurgy sought a declaration against an individual named Joseph DePasquale who was alleged to own an apartment complex in the Crystal Lakes Subdivision. Mr. DePasquale was also alleged to be responsible for escalated recreational charges.

The condominium associations and Mr. DePasquale filed motions to dismiss directed at the “Motion for Declaratory Relief” on various grounds including jurisdictional arguments. The trial court concluded that jurisdiction over the unit owners was proper via the Associations. The motions to dismiss were denied and an interlocutory appeal was taken to this court which affirmed by a decision issued February 6, 1976. The appellants on the interlocutory appeal were the four condominium associations.

We note in passing that there have been various peripheral issues and parties throughout this litigation. We here describe and deal with only so much of the controversy as necessary to the resolution of the present appeals.

By pretrial order of May 19,1977 the trial court held that the Motion for Declaratory Relief should be considered as a formal Complaint for Declaratory Relief. The condominium associations and Mr. DePasquale filed answers, affirmative defenses, and counterclaims. Basically the unit owners, through their representatives, sought to avoid or cancel the escalated recreational fees.

Eventually a trial occurred and resulted in the final judgment of August 22, 1978, which is the subject of the instant appeal. The final judgment discloses that Rosemur-gy, by stipulation of the parties, presented a prima facie case in support of the complaint for declaratory decree. This prima facie case was presented to the court without a jury. At that point, a jury was impaneled for the purpose of answering some thirty-three (33) separate factual questions bearing upon the issues raised in the answers, affirmative defenses, and counterclaims of the condominium associations. The claims as to Joseph DePasquale were not submitted to the jury but by stipulation were considered by the court essentially on a stipulated record supplemented by certain evidence. The court eventually issued a final judgment as to all parties based upon all of the evidence heard and upon the jury’s answers to the 33 factual questions. No one complains as to the somewhat unorthodox procedure by which these matters were tried and determined.

Basically, the final judgment found in favor of the Rosemurgy claim for escalated rental charges against the Montecristi Condominium Association, the Crystal Lake Villas Association, Inc., and Joseph DePas-quale. The court found in favor of the 4100 Condominium Association and the Crystal Lake 4251 Association on the issue of fraud and deceit and held that these parties were not responsible for the escalated recreational fees. Although the court reached the conclusion that there was factual inequity and unfairness as to the escalated charges, these were found to be enforceable and the overall recreational fee payment scheme was held not unconscionable.

The appellants now before this court are two condominium associations and one individual. The effect of the final judgment is to require the individual unit owners represented by the two condominium associations to pay escalated recreational fees along with the individual owner, Mr. DePasquale. We note initially that no appellant seeks to overturn the court’s finding regarding an absence of uneonseionability.

We now proceed with the claims asserted by Mr. DePasquale. Basically De-Pasquale contends that the court erred in finding that the covenant requiring recreational fees contained in the deed of DePas-quale was one running with the land. Mr. DePasquale’s claims were, by stipulation, not tried before a jury but were submitted to the court alone. Under the circumstances and based upon the evidence presented we cannot fault the trial court in concluding that a covenant running with the land existed and that Mr. DePasquale was on notice of the escalated recreational charges. Under these circumstances, we affirm the trial court’s rulings as to Mr. DePasquale.

The same situation does not prevail in regard to the condominium association appellants. We reverse the final judgment as to these appellants and remand for further proceedings due to error in selection of the jury. When the procedure began for impaneling the jury, the court directed a question to all prospective jurors in the courtroom as to whether any of them owned a condominium upon which any form of recreational lease was present. The court then excused for cause all jurors who held an ownership interest in such a condominium. Eleven prospective jurors were excused and the eventual jury was chosen from the balance of those present in the courtroom. This dismissal of prospective jurors was over the objection of counsel for the defendant condominium associations. We conclude that excusing all jurors who happened to own condominiums constituted error which requires a reversal of the entire final judgment herein as it related to the condominium associations. The court relied upon the jury’s answers to various factual questions in reaching the final conclusions incorporated in the final judgment on declaratory decree. As such the entire proceeding must be vacated in order to remedy the error.

Although we recognize that a trial court has broad discretion on matters of jury selection, we feel the court here overstepped the bounds of propriety and abused that discretion. See Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911). Florida, as well as most jurisdictions in this country, prohibits the arbitrary exclusion of otherwise qualified persons from selection for jury service. Baker v. State, 150 Fla. 446, 7 So.2d 792 (1942). In Smith v. Sisters of Good Shepherd, 87 S.W. 1083 (Ky.1905), the court held a juror could not be challenged for cause simply because he was a member of the same religious faith as a party to the litigation. In Curtis v. District of Columbia, 363 F.2d 973 (D.C.Cir.1966), it was similarly held that a jury panel consisting almost entirely of governmental employees was not improper in the trial of a matter in which one of the parties to the suit was the District of Columbia. See generally Annot. 72 A.L.R.2d 905 (1960).

The accepted standard for testing juror bias is that a general, abstract bias or prejudice entertained by a juror regarding a particular class of litigation will not in itself disqualify him when it appears that the abstract bias can be set aside and that the juror will fairly and impartially decide the particular case solely upon the evidence and instructions of the court. Further, the systematic exclusion of any recognizable and identifiable group within the community has been held to violate the equal protection clause of the United States Constitution irrespective of a showing of prejudice. See 47 Am.Jur.2d JURY §§ 163, 164. A systematic attempt to exclude wage earners from jury service has been forbidden. Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946).

We conclude that the systematic exclusion of condominium residents from jury service on cases involving condominiums without any inquiry whatsoever as to actual bias or prejudice constitutes error of such magnitude as to render it unnecessary and obviously impossible to demonstrate actual prejudice in a particular case. We take judicial notice that a substantial segment of the population of South Florida resides in condominiums. Such individuals who are otherwise qualified to serve on juries may not be systematically excluded. Under these circumstances we find it unfortunately necessary to reverse the entire final judgment as to the two condominium association appellants before the court.

We do not consider or rule on the other numerous legal issues presented by these two appellants. The retrial of this matter will in all likelihood involve a further jury and non-jury proceeding. The parties will be different in that two condominium associations did not participate in this appeal and in view of the affirmance of the De-Pasquale appeal. Under these circumstances it will be necessary for the parties to amend the pleadings substantially before proceeding with any retrial. The parties are not bound to follow the same procedure and the passage of over ten (10) years since the case was initially filed may well require that the parties and the issues be clarified and repled. We leave this to the discretion of the trial court on remand.

The judgment below is affirmed as to appellant DePasquale, and reversed as to appellants Montecristi Condominium Association, Inc. and Crystal Lake Villas Association, Inc.

AFFIRMED IN PART, REVERSED IN PART.

ANSTEAD and HERSEY, JJ., concur.

      . We are not called upon to pass upon the propriety of determining fraud in a class action. The ruling has not been appealed.


author: GLICKSTEIN, Judge. ANSTEAD, Judge,

text:
    William Maurice RAMSEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2055.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 9, 1982.
    J. David Bogenschutz of Varón & Stahl, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an order denying a motion to vacate judgment and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

Appellant was charged with aggravated assault and possession of a short-barreled shotgun. He first pled not guilty, but then changed his plea on April 7, 1980 when his counsel informed the trial court that pursuant to negotiations with the prosecution appellant would plead no contest to the charge of aggravated assault and would be sentenced to imprisonment for three years. A nolle prosequi was to be entered on the other charge.

At the hearing on the change of plea appellant waived a pre-sentence investigation and the trial court sentenced him to imprisonment for three years. The trial judge recited on three separate occasions that appellant was being sentenced to a mandatory minimum of three years’ imprisonment. The following took place on one of the occasions:

THE COURT: Have any promises been made to you other than the State will nolle prosequi Count II and that you will sentenced [sic] on your plea to be adjudicated guilty of aggravated assault and sentenced to three year’s prison and that is a mandatory minimum sentence which means you have to serve the three calendar years before you are eligible for parole? Do you understand that?
MR. RAMSEY: Yes.

Notwithstanding the foregoing, within seven weeks of the sentencing appellant informed the trial court by letter that he learned upon imprisonment that he would not be eligible for parole, work release or gain time for three years although he had been told by his attorney that in return for a plea of no contest he would receive a “regular” sentence of three years. He ultimately obtained private counsel who filed the motion now being considered. In support of the motion, appellant filed affidavits signed by his trial counsel and himself.

Trial counsel swore that he had erroneously advised appellant that the sentence being imposed would not require appellant to spend three years in prison before being paroled or being eligible for “good time” consideration and that because of this erroneous advice appellant believed he would not spend three years in prison before being eligible for parole.

Appellant’s affidavit recited that his attorney advised him that the mandatory minimum provisions of his sentence did not require him to serve three years before being eligible for parole and that had he known at the change of plea what he had since learned he would not have changed his plea.

The test to be applied in such circumstances is recited in Thompson v. State, 351 So.2d 701 (Fla.1977), cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88 (1978) wherein the Florida Supreme Court held: “The defendant has established to our satisfaction that hé was prejudiced by an honest misunderstanding which contaminated the voluntariness of the pleas.” See also Costello v. State, 260 So.2d 198 (Fla.1972); Richmond v. State, 375 So.2d 1132 (Fla. 2d DCA 1979). Whether appellant can meet this test is best determined by the trial court after consideration of testimony from appellant and his trial attorney rather than by this court on the basis of affidavits only. Accordingly, we reverse the judgment and remand the cause to the trial court for an evidentiary hearing on the matters raised by appellant’s motion.

REVERSED AND REMANDED.

ANSTEAD, J., concurs specially with opinion.

HURLEY, J., dissents without opinion.

ANSTEAD, Judge,

concurring specially:

I concur in the reversal and remand of this case because of the presence in the record of uncontradicted affidavits by the appellant and his attorney which relate in essence that appellant was advised in advance that he would not actually have to serve the full mandatory minimum sentence of three years without consideration for parole imposed by the trial court. See Costello v. State, 260 So.2d 198 (Fla.1972) and Brown v. State, 245 So.2d 41 (Fla.1971). In essence this is like telling the client to ignore what the court says, just listen to me and do as I say. In my view this constitutes substantial neglect on the part of the attorney. Meeks v. State, 382 So.2d 673 (Fla.1980); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In Costello, the Supreme Court warned counsel against such conduct in no uncertain terms:

And, finally, we remind the defense bar of the tremendous burden placed upon it; defense attorneys must be careful when advising their clients to plead guilty. The problems confronting such lawyers were discussed recently by the Supreme Court of Minnesota, which said:
“In a criminal case, one decision which must ultimately belong to a client, is what plea to enter. A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function (Tentative Draft 1970) § 5.2(a). In making this decision the accused should have the carefully informed advice of his lawyer. The advice rendered to the client in the plea-making decision must reflect a professionally considered assessment of the client’s predicament. However, in advising his client under such circumstances, the lawyer must be careful not to misstate or misrepresent the facts in a manner which could unfairly persuade one to enter a plea of guilty. The general rule governing a lawyer’s conduct as it relates to the accused’s decision with respect to his plea is set forth in A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function (Tentative Draft 1970) § 5.1(b), as follows:
“ ‘It is unprofessional conduct for a lawyer intentionally to understate or overstate the risks, hazards or prospects of the case to exert undue influence on the accused’s decision as to his plea.’ ” (Olness v. State, 1971, 290 Minn. 198, 186 N.W.2d 706, 709.)

At 202.


text:
    Kathleen N. IRWIN, Walden & Walden, and S. Robert Zimmerman, Petitioners, v. Honorable Paul M. MARKO, III, Respondent.
    No. 81-1771.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 8, 1982.
    Edna L. Caruso, West Palm Beach, for petitioners.
    Robert Monas, Fort Lauderdale, for Kathleen N. Irwin and on behalf of Paul M. Marko, III.
    Robert I. Shapiro of Shapiro & Leder, Miami, for William T. Irwin.
   BERANEK, Judge.

This is a petition for mandamus seeking to require the trial court to exercise jurisdiction over the parties on the issue of the husband’s obligation to pay attorneys’ fees to counsel for the wife. The action was originally filed by the wife and an award of temporary attorneys’ fees was entered. After a great deal of bitter litigation on both the trial and appellate levels, the wife acquired new counsel, and she and her husband filed a stipulation for dismissal reciting that they had settled the case. The stipulation for dismissal was filed June 16, 1981. At that point, two interlocutory appeals were pending before this court which eventually resulted in an opinion issued September 2,1981. See Irwin v. Irwin, 402 So.2d 1353 (Fla. 4th DCA 1981). On the same day, September 2, 1981, this court also issued an order taxing attorneys’ fees in the two separate interlocutory appeals and remanding the matter to the trial court for determination as to the amount of fees. The fees were assessed in favor of the wife and against the husband. Despite the fact that the parties had filed their stipulation for dismissal two and one-half months earlier, this court was not notified.

Immediately after the filing of the stipulation for dismissal, the wife’s prior counsel filed a notice of lis pendens, a motion for injunction, a charging lien and a request for an equitable lien. All of these pleadings related to the husband’s asserted obligation to pay counsel the fees previously assessed and to be assessed under our order of September 2, 1981, and a further pending, but undetermined, motion to fix attorneys’ fees. In response to these pleadings, husband’s counsel filed a motion to strike asserting the trial court was totally without jurisdiction in view of the stipulation for dismissal. By order of September 2, 1981, the trial court concluded it was without jurisdiction in view of the dismissal and granted the motion striking all of the pleadings of the wife’s former counsel.

We conclude that the court’s order was erroneous and that jurisdiction existed for the purpose of entering further orders regarding attorneys’ fees. Initially, we note that the trial court certainly possessed continuing jurisdiction to enforce its own prior orders taxing attorneys’ fees in favor of the wife’s counsel. Section 61.16, Florida Statutes (1979), provides that “the court may order that the amount be paid directly to the attorney, who may enforce the order in his name.” The prior award of attorneys’ fees may be enforced in this action despite reconciliation of the parties and dismissal; it is totally vested and cannot be done away with without the consent of the attorney. We, therefore, conclude that the trial court erred in refusing to exercise further jurisdiction in this matter.

As to fees not yet assessed the cases decided on similar issues by other courts have not been totally consistent. Hayden v. Hayden, 373 So.2d 436 (Fla. 3d DCA 1979), relied upon Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), and held that the filing of an actual voluntary dismissal by one party resulted in a total absence of jurisdiction to further consider the question of attorneys’ fees. The later case of Knott v. Knott, 395 So.2d 1196 (Fla. 3d DCA 1981), reaches an arguably contrary conclusion. The Third District there held:

The statute clearly provides that an attorney may enforce an order requiring a party to pay a reasonable amount for attorneys’ fees and costs in his own name. The authorities cited in appellant’s brief preceded the enactment of section 61.16 in 1971 and are inapplicable. The attorneys have standing to enforce their claim.
The husband’s argument that the trial court was deprived of jurisdiction by the voluntary dismissal fails to persuade us for several reasons. First, the stipulation of dismissal does not refer to the rights of the attorneys provided in section 61.16. Thus, any rights inuring to the attorneys under section 61.16 survived the dismissal of the action between the parties. . . .
Where the parties to a divorce action become reconciled, the cause may be dismissed as to the divorce action and permitted to continue for allowance of attorneys’ fees. Baldwin v. Baldwin, 154 Fla. 624, 18 So.2d 681 (1944); Turnipseed v. Turnipseed, 158 So.2d 808 (Fla. 1st DCA 1963); Hadlock v. Hadlock, 137 So.2d 873 (Fla. 2d DCA 1962). at p. 1198.

Under the Knoti rationale, the trial court here should have allowed the attorneys to continue litigation of both the previously assessed fees and the fees that had been made the subject of prior pleadings but had not yet been fixed as to their amount. Although an attorney retains the right to sue his former client for fees, the question presented here is whether the attorney may pursue the former adversary in the litigation giving rise to the fees. We conclude that the Knott decision represents the appropriate view of the law and find that the trial court erred in refusing to exercise jurisdiction herein.

We, therefore, grant the writ of mandamus and remand for further proceedings regarding attorneys’ fees.

MANDAMUS GRANTED.

DOWNEY and HURLEY, JJ., concur.


author: ERVIN, Judge.

text:
    AFFORDABLE HOMES, INC., Appellant, v. DEVIL’S RUN, LIMITED, Appellee.
    No. ZZ-178.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 8, 1982.
    Robert A. Stern, Gainesville, for appellant.
    Phillip A. DeLaney, Gainesville, for ap-pellee.
   ERVIN, Judge.

Affordable Homes, Inc.’s appeal urges that the lower court abused its discretion in dismissing its amended complaint with prejudice for failure to state a cause of action. We agree and reverse and remand with instructions.

Affordable’s two-count, amended complaint alleged breach of contract and sought in the alternative damages and specific performance. The subject of the complaint concerned two real estate land sale contracts. Under the terms of those contracts, Affordable agreed to purchase several lots from the appellee. One contract contained the following provisions:

At Paragraph 2.B.:
Buyer agrees to close at least two lots every 90 days from date of platting.
At Paragraph 2.C.:
Buyer agrees to close all lots within 270 days.
At Paragraph 2.G.:
In the event the buyer fails to close any of the above named parcels within the time specified, it will constitute a default and the Seller will have no further obligation to convey any of the remaining parcels.
At Paragraph 15:
OTHER AGREEMENTS: This contract constitutes the entire agreement between the parties, and any changes, amendments, or modifications hereof shall be void unless the same are reduced to writing and signed by the parties hereto.

The body of the complaint contained general allegations that the appellant had performed all conditions subsequent and had tendered performance by being ready, willing, and able to close the bulk of the lots which remained unpurchased. However, the appellant’s amended complaint also incorporated by reference the two subject land sales contracts as exhibits, as well as exhibit “D”, a letter revealing that the appellant tendered performance on October 24, 1979, more than 270 days from the execution of the contract. The appellee moved to dismiss the amended complaint, asserting that the contracts on their faces showed a breach by the appellant prior to any alleged breach by appellee; that the amended complaint failed to allege tender of performance, and finally that paragraph 15 of the contract, the integration clause, prevented any extension of the closing dates contained therein, unless the extensions were in writing, and that the amended complaint and exhibits failed to show any such extensions.

At the outset we hold that the trial court had the authority to dismiss the amended complaint without prejudice. Although the appellant properly pled that it had performed all conditions precedent as required by the contracts, nevertheless, if “there is an inconsistency between the general allegations of material fact in [a] complaint and the specific facts revealed by [an] exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable.” Schweitzer v. Seaman, 383 So.2d 1175, 1178 (Fla. 4th DCA 1980). See also Plowden & Roberts, Inc. v. Conway, 192 So.2d 528 (Fla. 4th DCA 1966). Here, the appellant’s exhibit “D” clearly reveals that the appellant’s duty of performance was late.

However, the trial court abused its discretion in dismissing the complaint with prejudice. Generally, the trial court will give leave to amend a deficient complaint unless there has been an abuse of the amendment privilege, or the complaint shows on its face that there is a deficiency which cannot be cured by amendment. Anthony v. Jacksonville Transportation Authority, 383 So.2d 650 (Fla. 1st DCA 1980); Highlands County School Board v. K. D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980). Here, the record does not reveal that the appellant abused the amendment privilege. Moreover, the appellant has represented to this court in its reply brief that it would be able to allege additional facts and argue case law which would enable it to have a viable cause of action if such facts were alleged. Although the statute of frauds would prevent the appellant from establishing that an orally modified contract existed, see 11 Fla.Jur.2d, Contracts, § 160 (1979), the appellant, as it asserts in its reply brief, could plead a separate theory: estoppel or waiver, which has been inaccurately referred to as an exception to the statute of frauds. See Young v. Pottinger, 340 So.2d 518 (Fla. 2d DCA 1976). A cause of action can be stated under that theory if the appellant pleads that it detrimentally relied on an oral modification, such as an extension of the time of performance agreed to by the appellant. See Young, supra, p. 521. The basis of this theory is not contractual: “[T]he party estopped is merely held to his written promise, but on different conditions.” Id. Additionally, as this is a non-contractual theory, the integration clause contained in paragraph 15 of the contract would have no effect.

Reversed and remanded for further proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.

      . There is conflicting authority as to whether such an integration clause can bar a subsequent oral modification of a written contract. See cases cited in 11 Fla. Jur.2d, Contracts, § 160 (1979).


text:
    W. A. SWANN, Jr., as Personal Representative of the Estate of William Alfred Swann, Sr., Deceased, Appellant, v. A. O. MITCHELL, H. W. Mitchell, John O. Mitchell, Anis F. Mitchell and Ronald H. Mitchell, Sr., Appellees.
    No. AC-2.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 11, 1982.
    W. A. Swann, Jr., in pro. per.
    Raymon J. Hahn of Fisher, Bell, Hahn, Winn & Schuster, P. A., Pensacola, for ap-pellees.
   PER CURIAM.

Swann appeals a summary final judgment in his action for partnership accounting and other relief. He contends that the trial judge erred in determining, based upon the terms of a written partnership agreement, that his deceased father had no interest in the partnership business in excess of his share of profits already distributed to him by the partnership. We reverse.

In 1966, appellant’s deceased father, William Alfred Swann, Sr., entered into a partnership agreement with the Mitchells. The agreement provided that Swann would receive a five percent profit share although he made no capital contribution. The Mitchells provided the capital in varying shares. Swann was to manage the business of the partnership, an automobile dealership. This agreement essentially continued a relationship between the parties which had been in existence for a period of twelve years. In 1967, Swann retired as business manager, and ceased all activities in the business or partnership affairs. However, he continued to receive payments representing his profit share, although paid to him in the form of salary or wages, until 1979. In that year, the partnership was dissolved by the remaining partners, and all assets were transferred to a corporation whose capital stock was issued to certain partners who continued with the business. Swann was not notified or consulted concerning the partnership dissolution and conversion of the business to the corporate form until early in 1980, at which time he received a final payment from the business. Swann came to the conclusion that the dissolution without his consent was wrongful, and that the distribution made to him failed to fully take account of all undistributed profits. He then filed suit, seeking a share of the capital surplus, the value of the goodwill, the stock of the corporate successor to the partnership, and accounting and damages for wrongful dissolution. The trial court found that Swann had received all that he was entitled to, and granted summary judgment for defendants. We find that there are unresolved issues precluding entry of a summary judgment.

The trial court based the summary judgment in part upon a finding of an intent, in the language of the partnership agreement, to treat partnership “assets” as entirely distinct from “profits,” noting in his order granting motion for summary judgment:

The intent of the partnership agreement must be interpreted in the light of the language used in the drafting thereof. The intent may be deduced from the language of the [sic] January 1, 1966 from the reading of paragraphs 3 B&C, which clearly set forth the intent of the agreement: “If either of the two partners other than the major partner and W. A. Swann should die, the other partners shall .. . pay to the personal representative of the decedent, the full value of his interest in the partnership assets and accumulated profits.... ”
Paragraph 3C sets forth the rights of W. A. Swann as follows: “Upon the death of W. A. Swann the partnership shall ... pay his personal representative the share of W. A. Swann in the undistributed profits....” [emphasis in original]

We do not find the fact that paragraph 3B refers to both “assets and accumulated profits,” while 3C only mentions “undistributed profits,” dispositive of the controversy between the parties. Specifically, we agree with appellant’s contention that nothing in the partnership agreement indicates an intention to alter the accepted definition of “profit.”

Prior to the adoption of the Uniform Partnership Act (UPA), profit was defined to include the increment in value of capital assets. In Uhrig v. Redding, 150 Fla. 480, 8 So.2d 4 (1942), our Supreme Court was faced with a partnership similar to the one here. The court held:

Appellant supplied the labor, experience and skill, appellee the necessary capital. Any profit was to be shared equally. Losses would also be shared, for in the event of loss, appellant would have exercised his skill and effort in vain, and appellee would have to suffer diminishment of his capital investment.
That there was a partnership does not mean that appellant thereby owned a half interest in the capital assets, for the agreement, as appellant testified, was only for the sharing of profits, not of capital invested by appellee. Upon dissolution of a partnership formed by one supplying all the capital, and another supplying only his labor and skill, the capital is returned to the partner supplying it unless the agreement is otherwise. Therefore, upon dissolution, appellant is entitled only to his half share in any increment in the value of the capital assets. [Citation omitted].

Uhrig, supra, at 6.

We have examined the UPA and find nothing there to alter the accepted definition of profit. The UPA also provides that accepted rules of law apply to cases not provided for by the Act, § 620.58, Florida Statutes (1979). The labeling of various partnership assets for bookkeeping convenience cannot alter their nature as profits due to Swann. We hold, therefore, that the entry of summary judgment based upon the assumption that under no circumstances would Swann be entitled to an interest in assets of the partnership representing undistributed profits was erroneous. Whether or not the parties by other agreements or conduct manifested an intention that any increment in partnership assets should not be subject to Swann’s profit share, or indeed, whether there were any such assets over and above the capital contributions of the partners, are matters that await determination by the trial court after receiving evidence.

We note that an issue is presented whether the goodwill of the partnership is an asset subject to evaluation and partial distribution as claimed in Swann’s behalf. While the goodwill of the partnership business is a valuable commodity, its value is virtually impossible of determination without an actual sale of the ongoing business. Cf., Mossler Acceptance Co. v. Martin, 322 F.2d 183 (5th Cir. 1963). No “sale” as such has occurred here, since it is clear that the partners remaining after Swann’s retirement continued the business for some twelve years and then simply transferred partnership assets to a corporation and continued the business under the corporate name. The remaining partners clearly reserved the right, under the partnership agreement, to modify, amend or change the agreement. They could have elected at any time to terminate the partnership, since it was not to exist for any fixed period of time, or they could have elected, which they did, to continue the business. We determine that these aspects of the partnership agreement, coupled with the limitation of Swann’s interest to profits only, would preclude a finding that the partnership goodwill is subject to any claim by Swann. Accordingly, in determining the extent of Swann’s unpaid partnership interest, if any, the value of the goodwill should not be considered. See 60 Am.Jur.2d, Partnership, § 202.

We observe further that contradictory references have been made to Swann’s status in the interim between his retirement and the changeover to the corporate business in 1979. Although he continued to receive his share of profits after retirement, apparently appellees, or some of them, have maintained that these payments were a gratuity. Resolution of any controversy with respect to Swann’s status subsequent to his 1967 retirement must therefore be left to the trial judge.

We find no merit in appellant’s claim for an accounting with respect to the partnership’s handling of social security taxes and business deductions, nor in the contention that under the partnership agreement Swann was entitled to a profit share for life.

For the reasons stated, the summary judgment for appellees is REVERSED, and the cause is REMANDED for further proceedings consistent with this opinion.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.