text:
    Richard Henry MARLOWE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1811.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 1982.
    Richard Henry Marlowe, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

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


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Joseph P. OLSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-473.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    James B. Gibson, Public Defender, and Frederick B. Karl, Jr., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant was adjudicated guilty of trafficking in stolen property and was sentenced to a term of fifteen years, consisting of eight years in jail followed by seven years of probation. The judgment is affirmed. Appellant’s sentence is vacated based on Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). This cause is remanded for resen-tencing as provided in Villery.

JUDGMENT AFFIRMED; SENTENCE VACATED AND REMANDED FOR RE-SENTENCING.

SHARP and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Alfred J. CLOUTIER, individually and doing business as East Side Automotive Repair Center and Donna M. Cloutier, his wife, Appellants, v. CENTRAL CONTRACTING, INC., Appellee.
    No. 81-507.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    R. K. Roberson, of Roberson & Roberson, DeLand, for appellants,
    Joe g. Dykes, Jr., of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellee.
   SHARP, Judge.

Appellants bring a timely appeal from the lower court’s final judgment awarding damages to appellee, Central Contracting, Inc. and denying appellants’ request for attorney’s fees pursuant to section 713.29, Florida Statutes (1979). Central filed a lien foreclosure suit under Chapter 713, and added counts seeking damages for breach of oral contracts and quantum meru-it damages for the value of goods or services furnished. The trial court determined that the mechanics lien was not enforceable. The special verdict form, as completed by the jury, read:

SPECIAL VERDICT FORM

No objection was made to the special verdict form by either party and both parties moved for judgment on the verdict. Appellants argue the trial court’s judgment is inconsistent with the special verdict, and we agree.

The jury found that Central did not perform in accordance with the contract, and it did not find Central was entitled to quantum meruit damages. Although damages for Central were assessed, the jury made no finding on contract or quantum meruit under which they could have been awarded. Appellee argues that the trial judge may correct errors inherent in the jury verdict. Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla.1971). Central did not object to any errors below. The trial court did not expressly find an error in the jury verdict when it awarded damages to Central, and the only apparent possible error is the finding of damages without finding liability. However, a special verdict which finds damages without finding liability is not inconsistent, Tidwell v. Toca, 362 So.2d 85 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1375 (Fla.1979), and it does not support an award of damages.

Under section 713.29 of the Florida Statutes (1981), the prevailing party in an action to enforce a lien under this chapter may recover attorney’s fees. Appellants argue that a defendant prevails under this section by successfully resisting a claim arising from a mechanic’s lien, and we agree. Since the court found appellee’s lien was unenforceable, appellants successfully resisted the claim and prevailed below. They were entitled to recover attorney’s fees under the statute.

We reverse and remand to permit the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

ORFINGER, C. J., and COBB, J., concur.

      . The Court had previously ruled appellants were entitled to $35.00 for negligent damage done to their building by Central Contracting,

      . Allen v. Scott, 358 So.2d 1112 (Fla. 1st DCA 1978); Dominguez v. Benach, 277 So.2d 567 (Fla. 3d DCA 1973).


text:
    Robert Michael HIPPS, Appellant, v. Valerie Rogers HIPPS, Appellee.
    No. 81-1500.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.

      Roger J. McDonald, Orlando, for appellant.
    Lawrence W. Solodky of Law Office of Marvin E. Newman, Orlando, for appellee.
   COBB, Judge.

This appeal by the husband arises from the final judgment of dissolution and challenges the failure of the trial court to award appellant a special equity in the parties’ marital domicile and in its allocation of visitation privileges. The operative facts are:

At the time of dissolution in October, 1981, Robert and Valerie Hipps had been married nearly eleven years, and had two children, ages five and seven. The parties are each twenty-nine years old and are high school graduates. Neither brought property into the marriage in 1971. In 1975 the mother of Valerie made a gift to her of a parcel of unimproved rural land, the deed being solely to Valerie Hipps. The parties then obtained financing from a federal savings and loan in the amount of $20,000 to construct a house on the land. The federal appraised the land at that time as worth $4,000 and appraised the proposed house at $21,500, for a total value of $25,500. Both parties signed the note and mortgage to the federal. For the next five years all of the mortgage payments were made from their joint checking account, but that account was maintained by Robert’s income. The wife was primarily a homemaker during this period, while the husband worked as a truck tire changer.

At nights and on weekends for some five or six months the husband worked an average of four to five hours a day, sometimes until 2:00 and 3:00 in the morning, with periodic help from his father and father-in-law, to construct the home, together with a utility shed and workshop. The wife testified that her husband’s efforts in this regard saved them at least $5,000 from the loan proceeds, which saving was used for family debts and family purposes. The wife also testified that a second mortgage for $6,000 was taken out on the house in 1977, with $5,000 going into the husband’s business and $1,000 going to pay some family bills. The wife testified at trial that the property is now worth from $45,000 to $50,-000. The husband testified that he always considered the home as equally owned by himself and his wife. The parties have no other assets of appreciable value. At the time of trial, Valerie was working as a teacher’s aide with hopes of becoming a full time teacher, and was earning approximately $150 per week net for the ten months she worked per year; Robert was working in a carpentry business with his father and earning approximately $100 per week net.

The final judgment awarded custody of the two children to Valerie, giving Robert specified visitation privileges. He was ordered to pay child support of $25 per week per child and was to provide health insurance for the children. His claim for a special equity in the former marital domicile was denied, and he was ordered to pay off the second mortgage on said property, with Valerie being responsible for paying off the first mortgage. Robert has appealed this judgment in respect to denial of his special equity interest in the home, the terms of his visitation privileges, and the trial court’s failure to abate support during a four week summer visitation period. We find no merit in the third point.

The second point, although dealing with an area wherein the trial court has considerable discretion, causes us some concern. The judgment provides, inter alia, that Robert Hipps shall have visitation with the two children on alternating weekends and “during . . . Christmas 1982 .. . and on alternating years thereafter ...” On its face, this would appear fair. But both attorneys at oral argument advised this court that the trial court’s interpretation of this provision, as verbally conveyed to them, is that Christmas refers to the entire school vacation period during the Christmas and New Year holiday season. Under this interpretation, one parent would be deprived of custodial or visitation privileges for approximately two weeks each Christmas season. Since the parties live in the same geographical area, this seems unduly harsh to the excluded parent, and interferes with the alternate weekend visitation previously provided in the judgment. The judgment, as we read it, only refers to one day: December 25. If the trial judge intends to amend this interpretation, then he should do so specifically in writing, and we will review his determination at that time on the basis of the applicable test in reviewing discretionary decisions by a trial court. In the meantime, the reference to Christmas in the judgment shall be confined to its clear and literal meaning, and we affirm in regard to point two.

In regard to the first point, the special equity issue, we have considered the record in this case and note the following commentary by the trial judge following the trial testimony, which sets out his basis for denial of the husband’s claim:

This would be a good cause for special equity for the husband. I think probably the criteria is there. Mr. McDonald is right, and it’s there. It would be a good case for special equity. The husband did go over and above and did put personal labor into it, but overriding all of these things in special equity in this divorce, of course, is the fair and equitable distribution of all the parties and looking at the children and the support and what is necessary, so I really think if he said he had a $5,000 special equity based on the five days and four hours a day over five months, we would also have to say that all of this was done for the benefit of the shelter and so forth of his family and children. And I think also that the fathers-in-law, their labors and all, were sort of a gift to the children as one does for children to help them along the way and get them started. So I am not going to find a special equity for the husband because I really consider the wife has the house and that’s really part of his child support obligation, and also balancing out the fact that some of the money went for the husband’s business and things like that, and the wife is sort of stuck with an obligation in case the husband does get in dire circumstances and she has to shoulder that. So, I’m not going to find a special equity for the husband.

The term “special equity” refers to a vested interest in property brought into a marriage or acquired during the marriage because of contributions of services or funds over and above normal marital duty. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Floyd v. Floyd, 383 So.2d 773 (Fla. 5th DCA), review denied, 392 So.2d 1374 (Fla.1980). Here, the appellant claims a special equity arose due to his actual building of the home and the immense amount of his personal work and effort involved in it.

From the statement of the trial judge quoted above, it appears that he first recognized that the husband had established the criteria for a special equity in the subject property by proof of services over and above normal marital duties, but then decided to classify those services as gifts from him to his family and children. From this perspective, it is readily arguable that we are dealing with a characterization that poses a legal question rather than simply a question of the trial court’s discretion. Cf. Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), review denied, 412 So.2d 465 (Fla. 1982).

The appellee, in support of the trial court’s ruling, relies primarily on three Florida Supreme Court eases in the following order of argument: Ball v. Ball, 335 So.2d 5 (Fla.1976); Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ingram v. Ingram, 379 So.2d 955 (Fla.1980).

In Ball, the wife obtained improved realty by inheritance, a source outside of the marriage, then transferred it to herself and her husband as tenants by the entirety. The trial court held that this conveyance created a presumption of gift which was not overcome by “a mere showing that the wife supplied all of the funds for the property.” Ultimately, the Florida Supreme Court reversed, holding “that a special equity is created by an unrebutted showing ... that all of the consideration for property held as tenants by the entireties [sic] was supplied by one spouse from a source clearly unconnected with the marital relationship.” 335 So.2d at 7. In such cases, where there is no evidence to the contrary, the tenancy is to be viewed as if it were created solely for survivorship purposes during coverture and the conveyance would not create a presumption that a gift was intended. The Ball case is clearly distinguishable from the instant situation wherein the evidence is undisputed that the improved realty, now worth perhaps $50,000, did not come exclusively from a source outside the marriage, but was derived from three sources: (1) the gift to Valerie of an unimproved parcel of rural realty valued at $4,000; (2) the joint loan from the federal of $20,000; and (3) the extraordinary efforts of the husband in working approximately 18 hours a day for five or six months. If there is language in Ball applicable to the instant case, it would be the following:

Either spouse has the right to attempt to establish a “special equity” in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party.

In Duncan, it was held that jointly-held property acquired with accumulated assets earned during the marriage (by the husband’s employment and the wife’s performance of household and child-rearing responsibilities) should not be the subject of a special equity award divesting the title of one party, but could properly be the subject of an award of exclusive possession. That case does not support the denial of a special equity to one party in property to which he has made an extraordinary contribution merely on the basis of a showing of record title or through the guise of transmuting that contribution into child support, which may be equally accomplished by an award of possession, as in Duncan, rather than by a denial or divestment of an established fee interest. The Ingram case, as we read it, stands only for the proposition that a trial court’s denial of a husband’s “special equity” claim to an interest in a marital home owned by the wife prior to marriage should not be reversed on appeal absent a finding that such denial constituted an abuse of discretion.

In the instant case, the trial court, after expressly acknowledging “good cause for special equity for the husband” and that “the husband did go over and above and did put personal labor into it,” then denied the claim of special equity of the husband and left him, after eleven years of struggle, with no assets and an obligation to pay $50 per week child support, plus providing health insurance for the children and discharging the second mortgage, all on an income of $100 per week net. This is an abuse of discretion under Ingram. It transfers Robert Hipps from anemic prosperity to dire misfortune, while leaving the wife, who entered the marriage with nothing, with a weekly income of $150 with the prospect of immediate increase, the child support payments from Robert, and an equity exceeding $25,000 in the marital domicile. This is not “basic fairness.” See Canakaris v. Canakaris, 382 So.2d at 1204.

We believe that the present appeal is controlled by our decision in Floyd v. Floyd, 383 So.2d 773 (Fla. 5th DCA 1980), and by Green v. Green, 228 So.2d 112 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 538 (Fla. 1970). The husband clearly established his special equity in the marital domicile, and it should have been awarded to him by the trial court. We see no basis to treat the parties differently in regard to the fee interest in that property. We reverse and remand for entry of a judgment finding Robert Hipps’s entitlement to a 50% interest in the marital domicile, providing for equal allocation of the mortgage obligations, and awarding the wife the right to exclusive possession of that domicile during the period of her custody of the children and their occupancy thereof during minority.

AFFIRMED in part; REVERSED in part; and REMANDED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


author: DAUKSCH, Judge.

text:
    STATE-WIDE CONSTRUCTION, INC., a Florida corporation, Appellant, v. Claude M. DOWDA and Donald N. Cooper, Appellees.
    No. 81-1535.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    Robert G. Murrell, of Sam E. Murrell & Sons, Orlando, for appellant.

      q Reed Guthridge, of van den Berg, Gay & Burke, P.A., Orlando, for appellees.
   DAUKSCH, Judge.

This is an appeal from an order dismissing a mechanic’s lien foreclosure action.

This is a case of first impression and we are asked to interpret the meaning of “deliver” as it is meant in section 713.-06(3)(d)(l):

The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in. full and the amount due or to become due each for labor, services, or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not.

Five days before filing suit appellant mailed the executed affidavit to the owner. The owner received it in the mail 4 days before suit was filed. The question is whether mailing satisfies the statutory requirement.

Before the statute was amended in 1963 it provided merely that the affidavit must be delivered to the owner before suit could be filed.

(3) When final payment becomes due the contractor from the owner, the contractor shall give to the owner a statement under oath stating, if that be the fact, that all lienors contracting directly with or directly employed by such contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full and the amount due or to become due each for labor or services performed or materials furnished and describing in a general way such labor, services, or materials. The contractor shall have no lien or right of action against the owner for labor or services performed or materials furnished under his contract while in default by reason of not giving the owner such statement under oath.

See. 84.04(3), Fla. Stat. (1961).

There was no requirement for a five day notice in the previous statute and we do not know why the statute was changed in this way. We sought to obtain the minutes or committee notes or transcripts of hearing in the legislature to see why the 5 day period was inserted. We could not get them.

In trying to discern the reason for the insertion of the five day period we have considered various possibilities. The most logical seems to be that the legislature intended to allow time for mailing while at the same time allowing sufficient time for the owner to pay before suit is filed.

Both counsel have presented and we realize there are good arguments on both sides so we are put into the position of having to opt for what we deem to be the fairest for all parties. It is our holding that evidence of proper posting in the mail of the affidavit at least 5 days before filing suit is compliance with the statute. That way notice is actually given, and assuming the mails are delivered timely, received. If we were to rule the other way then a contractor in a position of jeopardy vis-a-vis a financially sinking owner may have to try to effect, and prove, a personal delivery.

The order dismissing the foreclosure action is reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.

      . Most likely all first-year law students learned in "Contracts I” that acceptance of an offer is effected when the letter containing the acceptance is properly posted in the mails.


author: COBB, Judge. COWART, Judge,

text:
    Robert E. LAWLER, M.D., Appellant, v. Tyree W. HARRIS, etc., et al., Appellees.
    No. 81-1623.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.

      Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso, Mosely & Kabboord, P.A., Cocoa Beach, for appellant.
    Henry J. Martocci, Cocoa, for appellees Oliver.
    Harry Anderson of Anderson & Hurt, P.A., Orlando, for appellees Wuesthoff Memorial Hospital, Tyree W. Harris and M.M. Buchanan.
   COBB, Judge.

This is an appeal from an order stating “that the Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint be, and the same is hereby granted, with prejudice.” The question of the finality of such an order for purposes of appeal has been considered by two other District Courts of Appeal, with conflicting results. The Fourth District has held it to be a final, appealable order. Cordani v. Roulis, 395 So.2d 1276 (Fla. 4th DCA 1981); Segal v. Garrigues, 320 So.2d 475 (Fla. 4th DCA 1975). The Third District, in an opinion by Judge Pearson, has held that an order granting a motion to dismiss with prejudice is neither a judgment nor a final dismissal, the words “with prejudice” actually adding nothing of legal consequence, and therefore such is not a final, appealable order. Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980). Cf. Taylor v. Hartford Accident & Indemnity Co., 405 So.2d 1070 (Fla. 5th DCA 1981).

We concur, in regard to the order’s lack of finality, with the Gries opinion. We also agree with its solution to the problem: a temporary relinquishment, of an inchoate jurisdiction rather than a non-productive and wasteful dismissal of the cause. Gries, 388 So.2d at 1282 n.4. See also Dade County Classroom Teachers’ Association, Inc. v. State Board of Education, 269 So.2d 657 (Fla. 1972); Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980); WBD, Inc. v. Howard Johnson Company, 382 So.2d 1323 (Fla. 1st DCA 1980), review denied, 388 So.2d 1114 (Fla. 1980); Sloman v. Florida Power & Light Company, 382 So.2d 834 (Fla. 4th DCA 1980).

We also note for the benefit of the trial court and the parties that, in the event that a final order is entered by the trial court, it should state with particularity .the names of the defendants dismissed. There has been some confusion at the appellate level as to the proper appellees in this case, specifically as to the defendants Robert P. Oliver and Jane Oliver.

Accordingly, we relinquish jurisdiction to the trial court and remand this cause for thirty (30) days so that the parties may procure an appropriate final order of dismissal.

RELINQUISHED AND REMANDED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I agree that an order merely granting a motion and dismissing a complaint, but not dismissing the action, is a non-appealable, non-final order and that the addition of the words “with prejudice” does not make it a final order of dismissal of the cause. The entire reporter system is replete with cases dismissed because, as here, the appellate court lacked jurisdiction to review a non-ap-pealable order, yet this court seizes on a few cases where, because of notions of kindness, helpfulness or convenience or for clarification where jurisdiction depended on the exact ground of dismissal, appellate courts have purportedly “relinquished” a non-existent jurisdiction to the trial court for entry of some anticipated appealable order. Such instances do not constitute precedent for the proposition that such action is the correct procedure when non-reviewable orders are attempted to be appealed. This court today holds up a few single instances or exceptions of yesterday as examples of doctrine and embalms their presumed principle to rank hereafter as precedent. There is no such thing as “inchoate jurisdiction” as to a particular case. The term in this instance is a bad combination of two good legal concepts. A court either has jurisdiction of a particular cause or it does not. This court has no jurisdiction in this case to “relinquish” or to send back (remand) to the trial court. Dismissal of the appeal is the only correct remedy and procedure when the review sought is of a non-reviewable order.

      . In each of the cases cited in the majority opinion, as in this case, the parties, assuming the appellate court had jurisdiction, earnestly briefed and argued the merits of the cause (i.e., whether the complaint stated a cause of action of whether there was a genuine issue of fact precluding summary judgment) and the court first noticed its lack of jurisdiction and improvised and initiated this alien procedure. This does not properly create precedent. Actually the cases cited by the majority trace through Sloman v. Florida Power & Light Co., 382 So.2d 834 (Fla. 4th DCA 1980), to Williams v. State, 324 So.2d 74 (Fla. 1975), a criminal case upholding a premature notice of appeal filed after judgment was orally pronounced but before it was “rendered," a case and concept far removed from the civil cases and circumstances to which it has led.


author: GLICKSTEIN, Judge.

text:
    J. Stewart COTTMAN, Jr., Appellant, v. Marie Antoinette COTTMAN, Appellee.
    No. 81-577.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Larry Klein and Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    Cheryl Schreiber of Schreiber & Schreiber, Hollywood, for appellee.
   GLICKSTEIN, Judge.

The trial court has ably dissected the legal issues involved in the parties’ dissolution of marriage. It fashioned a final judgment which we find to be unflawed but for the award of attorney’s fees to the wife.

The parties, both middle-aged and previously divorced, met and married in France in 1968. At the time, appellant-husband was a state department official stationed there and appellee-wife was a French national. They resided together until June of 1977, a year after appellant retired, when appellee was unceremoniously asked to leave the home of appellant’s mother. The trial court found appellant thereafter secreted himself until April of 1979, when he surfaced in Florida.

There are three issues before us. The first is whether the trial court erred in awarding the wife $27,000, one-half of the uncommitted proceeds from the sale of the parties’ Washington, D.C., home minus the husband’s special equity of $8,000. We hold it did not.

The evidence showed the parties acquired the home in 1969 with funds appellant provided from the proceeds of life insurance policies. After residing there for about two years, the parties moved to Europe; they returned to Washington, D.C., in 1975. Because of an existing lease, they did not move back into the home upon their return. In December of 1976, the home was sold and the parties received a net check, payable to them both, for $61,939.58. Appellee endorsed the check and appellant deposited it into his account. With the proceeds the parties had intended to purchase a retirement home.

At trial the parties agreed District of Columbia law governed the disposition of the marital domicile. That law provides for property acquired during the marriage to be distributed within the broad discretion of the court in an equitable, just and reasonable manner. Turpin v. Turpin, 403 A.2d 1144 (D.C. 1979); Benvenuto v. Benvenuto, 389 A.2d 795 (D.C. 1978); Finch v. Finch, 378 A.2d 1092 (D.C. 1977). Appellant has failed to show the division of property ordered by the trial court to be inequitable, unjust or unreasonable.

The second issue is whether the trial court erred by awarding appellee $10,000 as lump sum alimony. We hold it did not.

Appellant sought to prevent the trial court from making this award, as well as the $27,000 award, by painting appellee as a millionairess with a substantial interest in a 400-acre French estate and by relying upon the equitable consideration involved in his execution, one day before marriage, of an antenuptial agreement in which he relinquished any claim upon appellee’s property. There is no question he executed the agreement and spent at least $5,000 for renovations to appellee’s apartment in her family’s property. Beyond that, however, the evidence did not establish with definitive clarity the picture appellant sought to paint.

The testimony actually showed ap-pellee as one of three children owning only a contingency interest in the French acreage. This interest is dependent on appellee surviving her mother. Additionally, there was testimony that loans and the charity of friends and relatives maintained appellee during the separation because appellant had abandoned and failed to support her for almost two years. Other evidence showed appellee incurred medical costs in the $20,-000 range as a result of a myocardial infarction for which she was hospitalized in May of 1979. She had no medical insurance funds from which to pay for medical care and appellant kept the insurance checks issued for her benefit. She now has a shortened life expectancy and outstanding loans.

Throughout his two years of inaccessibility appellant was receiving a gross retirement income of $27,747. He continues to receive this amount which is subject to cost of living increments. The trial court recognized that after a twelve year marriage appellee exhibited a need which appellant could satisfy and appellant has failed to show abuse of discretion.

As we stated earlier the only flaw we perceive in the final judgment is the award of attorney’s fees to the wife. Her trial counsel verbalized to the trial court his awareness of the requirement for expert testimony as to the reasonable value of the services he testified he performed. Tanner v. Tanner, 391 So.2d 305 (Fla. 4th DCA 1980). Although he provided the trial court with a petition for payment of attorney’s fees, describing the hours expended and costs incurred in representing appellee, the promised expert testimony was never submitted. Because the attorney was fully aware of his obligations and failed to meet them, we reverse the part of the final judgment awarding him a fee without remand for further hearing.

AFFIRMED IN PART AND REVERSED IN PART.

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


author: HERSEY, Judge.

text:
    Massoud KOMAILY-ZADEH, Appellant/Cross-Appellee, v. Fakhry Mashali KOMAILY-ZADEH, Appellee/Cross-Appellant.
    Nos. 81-933, 81-1882.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Edna L. Caruso, West Palm Beach, for appellant/cross-appellee.
    Martha C. Warner of Warner, Fox & Seeley, Stuart, for appellee/cross-appellant.
   HERSEY, Judge.

We affirm the Final Judgment and Supplemental Final Judgment. We also affirm the Order on Temporary Support Pending Appeal except the award of attorneys’ fees for the appeal. The trial court is without authority to award attorneys’ fees for appeal absent leave of the appellate court; therefore, we reverse that portion of the temporary support order.

AFFIRMED in part; REVERSED in part; and REMANDED.

HURLEY and DELL, JJ., concur.


author: ANSTEAD, Judge.

text:
    P.C. PRICE, Appellant, v. ROGERS ENTERPRISES, a Florida partnership, E.D. Rogers and E.D. Rogers, Jr., Appellees.
    Nos. 81-1154, 81-1365.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Harry S. Raleigh, Jr., and Robert S. Hackleman of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellant.
    Julian Clarkson and Suzanne S. Barber of Holland & Knight, Tampa, for appellees.
   ANSTEAD, Judge.

This is an appeal from a summary final judgment holding that the appellant, a real estate broker, was not entitled to a commission from the appellees with reference to the appellant’s efforts to effect a sale of property owned by the appellees.

The parties entered into a written brokerage agreement pursuant to which the appel-lees would pay the appellant a fixed amount as a commission if the appellant effected a sale of appellees’ property upon terms and conditions agreeable to appellees. The commission was to be paid in installments out of the proceeds of the sale. Subsequently, the appellant produced a prospective purchaser who apparently was willing to purchase the property. In fact, there is evidence that the appellees actually executed an agreement for sale with this purchaser. However, the appellees submitted uncontradicted proof that this agreement had been executed only as a gesture of good faith in negotiating, and that the copy of the agreement furnished to the purchaser’s representative was not the final agreement of the parties; other conditions required by the appellees would have to be met before a final agreement could be reached. The ap-pellees also submitted proof that these conditions were never met and that, as a result, the sale was never actually consummated.

The appellant concedes that a binding sales agreement was never executed. However, he points to evidence that the additional conditions imposed by the appellees had been orally accepted by the purchaser, but that the appellees then arbitrarily refused to go forward with the negotiations and execute an agreement for sale. Based on this evidence that the purchaser was willing to meet the appellees’ terms, the appellant contends that the trial court erred in entering a summary judgment denying his entitlement to a commission.

In Malever v. Livingston, 95 Fla. 272, 275-76, 116 So. 15, 17 (1928), the court held that a broker employed to effect a sale must, at the very least, secure a binding contract of sale from a purchaser on terms authorized by the property owner before the broker will be entitled to his commission:

In the leading case of Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011, it was held that a broker employed to sell, as distinguished from a broker employed to find a purchaser, [emphasis in original] is not entitled to compensation until he “effects a sale or procures from his customer a binding contract of purchase within the terms of his authority.” In the opinion, by Mr. Justice TAYLOR, it is also said that, as to a broker employed to sell, he “not only finds a purchaser, but negotiates the sale with him on the terms authorized by his principal, leaving nothing for the seller to do but execute the necessary transfer of the title to the property.” We think this means something more than that the broker who is employed to sell fulfills his contract of employment and becomes entitled to his commission, by merely finding a purchaser, ready, able and willing to buy on the terms fixed by the principal and producing him to the owner, or by introducing to the owner a customer who has verbally agreed to buy at the price named by the principal and who, when brought to the principal, verbally agrees with him on all the terms of sale, and even makes a payment of earnest money — pays something on purchase price. It means, as applied to the facts pleaded in this case, and as a general rule in the absence of contractural stipulations otherwise that the broker must have effected a completed sale of the property, pursuant to the broker’s authority, i.e., the deed must have been executed and delivered by the seller and the proper cash payment made and mortgage and note or notes executed and delivered by the purchaser for the balance; or, the broker must have “procured from his customer a binding contract of purchase within the terms of his authority,” i.e., a written contract which the principal could enforce, leaving nothing for the principal to do on his part but to execute at the proper time the necessary transfer of the title to the property.

Notwithstanding its declaration of this strict standard of performance, the court, in a reappearance of the same case, Livingston v. Malever, 103 Fla. 200, 137 So. 113 (1931), recognized an exception to the rule. In Knowles v. Henderson, 156 Fla. 31, 34, 22 So.2d 384, 385-86 (1945), the court elaborated on this exception:

[T]he general rule stated is not without exception. The weight of authority is to the effect that where a broker in good faith and in reliance upon his contract procures a purchaser ready, able and willing to buy the property in accordance with the terms fixed by the seller, and before the broker can effect the sale or procure a binding contract of purchase the seller defeats the transaction, not for any fault of the broker or purchaser, but solely because the seller will not, or cannot, complete the transaction, then and in such case, the broker is entitled to his commission, if the customer remains ready, able and willing to purchase, although the sale has not been fully completed; the strict terms of the contract between principal and broker as to completing the sale or procuring a binding contract of purchase from the customer being deemed waived by the principal.

In the current case, appellant’s evidence that a binding agreement was not reached only because of the refusal of appellees to go forward with the sale after all conditions had apparently been approved by the purchaser, would appear to be sufficient under Knowles to withstand appellees’ motion for summary judgment. However, because of the particular provisions of the brokerage agreement involved herein we do not believe the Knowles exception applies.

The brokerage agreements involved in Knowles and Livingston contained the basic terms of sale, including the purchase price that the property owners were willing to accept for his property. On the other hand, the brokerage agreement in question here contained no listing price or other terms of sale. Instead the agreement provided for a commission “upon condition that REALTOR effect a sale of THE GULF BUILDING ... upon terms and conditions” agreeable to appellees. This agreement reserved to the property owner discretion in setting the conditions upon which he would sell his property. Implicit in such a reservation of discretion is the right to withdraw from a proposed sale at any time until a binding agreement has been reached. Leon Realty, Inc. v. Bradwell, 271 So.2d 771 (Fla. 1st DCA 1972). Under such circumstances we believe the broker is on notice that he will not be entitled to a commission until the seller has actually agreed to terms by entering into a binding agreement to sell with the prospective purchaser.

Support for our conclusion may also be inferred from Restatement (Second) of Agency § 445, comment d (1958):

When the principal has furnished the broker with only part of the terms, with the understanding that further details are subject to negotiation between the principal and the customer, the principal, unless acting in bad faith (see § 454), is free to terminate such negotiations without liability to the broker. The principal’s promise to pay the broker a commission does not become binding unless the principal and the customer reach a present definitive oral or written agreement. The broker has not earned his commission, even though the principal and the customer have drafted a memorandum of their proposed agreement, if they did not intend such proposed agreement to be presently binding upon them and hence reserved signature of the memorandum for a later occasion; at this point, if either the principal or customer withholds such final consent, no commission is due.

It is undisputed here that the seller did withhold his “final consent” and, accordingly, that no commission is due.

We also note that there is no contention in this case that the property owner in any way defrauded the broker. It is not claimed for instance that the property owner initially refused to go through with the deal and then later sold the property to the same prospective purchaser originally secured by the broker. The evidence simply indicates that the negotiations never resulted in a binding agreement between the buyer and seller. Under these circumstances we do not believe the broker is entitled to recover a commission.

Accordingly, the judgment of the trial court is affirmed.

BERANEK, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.

      . The appellant’s amended complaint, which is the pleading upon which summary judgment was entered, specifically relies on the execution of this agreement as the predicate for appellant’s entitlement to a commission. The un-contradicted proof submitted by the appellees as to the limited purpose for which this agreement was executed would appear to be sufficient in itself to defeat the broker’s claim. However, in the trial court and on appeal both parties have addressed the issue as if the appellant had amended his claim to include the circumstances discussed in the opinion as to the further conditions imposed by the appellees and the purchaser’s response to those conditions.

      . Relevant facts in this case are:
      At the time appellant submitted the option contracts to appellees’ attorney, it stated that its prospective purchasers would be willing to meet any terms which might be specified by appellees in the event the terms set forth in the proposed contracts were unacceptable. The record is silent as to whether such verbal offer was ever conveyed to appellees by their attorney. When appellees announced their intention to withdraw their land from the market and not sell it under any terms or conditions, appellant instituted this action for recovery of a brokerage fee which it claims it earned and is due it under its brokerage contract.

        Leon Realty, Inc. v. Bradwell, 271 So.2d 771, 773 (Fla. 1st DCA 1972).

      . We also note that the Knowles rule is not to be followed if the broker’s contract has a specific clause to the contrary (e.g., the right to.a commission accrues only when the contract is executed). Hanover Realty Corp. v. Codomo, 95 So.2d 420 (Fla. 1957). In Mark v. Hahn, 177 So.2d 5, 8 (Fla. 1965), the Supreme Court of Florida stated:
      We think the “specific agreement” to which we referred in Codomo should be expressed in language which would be readily understood by a layman and leave no room for doubt. The specificity of such an agreement should be precisely formulated, explicit, positive, direct and should admit of no misunderstanding. The agreement should clearly put the lay-broker on notice that he might expend both effort and substance in vain.
      The clause in the contract here under consideration provides that the commission would be paid out of the proceeds of the sale. While it is unnecessary to decide if this provision alone is sufficiently explicit to advise the broker of the necessity of a sale before he may be entitled to his commission, and we do not bottom our decision on this issue, the clause should put him on notice that, without a consummated sale, the seller would have no funds with which to pay his fee. This clause is consistent with our conclusion that the parties did not intend for the seller to become liable for a commission unless a binding agreement was executed or a sale actually effected.


author: WALDEN, Judge.

text:
    Francisco YANES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1244.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Jerome M. Rosenblum, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

Yanes was convicted of trafficking in cocaine. He appeals. We reverse and remand for a new trial.

Several points merit discussion because they jointly and singly constitute reversible error.

First, after the jury had retired to deliberate, the jury returned and requested, “May we have a copy of the law pertaining to trafficking in cocaine and possession of cocaine?” The court responded, “I don’t want to take my book apart because I’ve got lots of sheets in here. I don’t want you all reading about anything in here except the two things that I have marked. The first mark is possession and the second mark is trafficking in cannabis.” Whereupon, the court, over objection, gave the jury his whole book of jury instructions which they took back with them to the jury room. It appears from the colloquy that defense counsel had never seen the actual book and the court declined to make it a part of the record. We assume that it consisted of, at least, all the standard jury instructions covering different crimes and legal situations inasmuch as the State does not contend otherwise.

Florida Rule of Criminal Procedure 3.400(c) provides, “Materials to the Jury Room. The court may permit the jury, upon retiring for deliberation, to take to the jury room: ... (c) any instructions given; but if any instruction is taken all the instructions shall be taken; . . . . ” Clearly, the action giving the jury the whole book is violative of this Rule. We do not know if the jury heeded the court’s instruction to read only the two marked instructions, or, if it succumbed to temptation and curiosity by considering other charges — charges other than those earlier orally charged as being applicable to the case. Regardless, the jury had access to many instructions of law which were inapplicable and potentially damaging to Yanes.

In Johnson v. State, 27 Fla. 245, 9 So. 208 (1891), it was held, “it is erroneous to allow the jury, after retiring to consider of their verdict, to have access to law books of any description. They must get their instructions as to the law of the case from the court, and not from their own perusal of the books.” (emphasis supplied). And in Smith v. State, 95 So.2d 525 (Fla. 1957), it was deemed error to allow the jury to take a dictionary into the jury room without notice to counsel. Here, of course, there was notice which was met with a timely objection which was incorrectly overruled.

The State admits that the trial judge handled the situation in an unusual way and agrees that the proper procedure would have been for the judge to simply read the requested sections to the jury. However, the State contends that the action was harmless error citing Stone v. State, 71 Fla. 514, 71 So. 634 (1916). We do not agree that it was harmless error. We distinguish the Stone case. In Stone the two requested charges that were refused by the court were delivered to the jury and taken to the jury room along with the charges that were given. However, the refused charges were indorsed by the judge “refused because covered by the general charge.” In Stone, different from here, the parameters of the material could be measured and it was noticed that the two refused charges were “patently covered by charges given.” And so in Stone the two charges which should not have been taken to the jury room were merely duplicitous or surplusage. However, in the instant case many charges were made available to the jury which were not covered by the charges given.

As to the act being only harmless error, we feel that the jury process must be firmly governed to the end that the jury will decide cases limited strictly to the evidence presented in court and the law charged to them by the court. A slipshod attitude as to such matters can only undermine the acceptance and confidence which our system has earned. Illustrative of the jealous concern for the sanctity of the process is the case of Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960). The bailiff, upon being asked by the jury, informed the jury that grand larceny was of the value of more than $100.00. The Holzapfel court held that the court and the court alone is entitled to instruct jurors as to the law and the fact that the statement made was a correct statement of the law would not prevent same from being a substantial error.

We are satisfied that this point requires reversal.

The second item has become moot. Regardless, we mention in passing that the State failed to make pre-trial discovery as concerns a report of a quantitative analysis of the suspect cocaine. Yanes made a motion in limine to exclude which was denied without conducting a hearing as mandated by Richardson v. State, 246 So.2d 771 (Fla. 1971). This was error but it is now of no moment since the report or its contents have now been made known.

Third, there were two co-defendants charged along with Yanes. These co-defendants skipped bond and were not present for trial. Regardless, Detective Tango was allowed to testify before the jury as to statements made by the absent co-defendants. Such testimony was highly incriminating and tended to establish a conspiracy involving Yanes. The allowance of such testimony constituted reversible error. The error was preserved by timely and sufficient objections and motions by Yanes.

The admission of the hearsay testimony pursuant to the co-conspirator exception to the hearsay rule was acceptable provided that the trial court instructed the jury at the time as requested by counsel in accordance with the provision of Section 90.-803(18)(e), Florida Statutes (1981), or as outlined in Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980). This was not done. We reverse this point upon authority of Boyd v. State, supra, and Eaton v. State, 410 So.2d 933 (Fla. 4th DCA 1981).

The remaining points raised by Yanes are without merit.

Finally as a communication between the court and appellate counsel generally and not as a rebuke, we note that Yanes raises nine points (really twelve inasmuch as one of them was subdivided into four parts) and cites 96 cases. While we are unwilling to say that counsel in their briefing should “never” offer as many points and citations, we do say that Yanes over did it with the result that the appeal was made unnecessarily tedious and difficult as we undertook to separate the wheat from the chaff. Appreciating the zeal of counsel to do a good job and not overlook anything, and sympathetic to self-protection motivations in the increasing sensitivity to malpractice exposure, we can only record that appellate overkills are counter-productive. Counsel should be able to determine what points have merit or are at least fairly arguable. To include others only obfuscates and weakens the real impact of the appeal.

REVERSED AND REMANDED FOR A NEW TRIAL.

LETTS, C.J., and DOWNEY, J., concur.


author: PER CURIAM.

text:
    Adelaide V. SLOMAN, Appellant, v. Francis J. SLOMAN, Appellee.
    No. 81-1295.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Howard S. Gaines, Fort Lauderdale, for appellant.
    James F. Simpson, West Palm Beach, and Amy Shield Levine, Boca Raton, for appel-lee.
   PER CURIAM.

This is an appeal by the wife from a dissolution of marriage judgment.

Responding to the wife’s points, we have reviewed the judgment as concerns the division of marital assets and the failure to award the wife lump sum alimony. (There was no complaint as to the non-award of periodic alimony).

With a 44 year marriage and the parties in their sixties, the wife received approximately 38% of the marital assets worth approximately $125,450.00.

From the appellate stance we know that the trial court need not necessarily equalize the financial position of the parties. Moreover, if reasonable men could differ as to the propriety of the action taken by the trial court, then there can be no finding of an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); McDonald v. McDonald, 368 So.2d 1283 (Fla. 1979); Hartley v. Hartley, 399 So.2d 1126 (Fla. 4th DCA 1981); Gensemer v. Gensemer, 383 So.2d 913 (Fla. 2d DCA 1980). Employing these criteria, we determine that there was no abuse of discretion or error as to the division of assets and denial of lump sum alimony.

Finally, the wife is aggrieved because the court did not order the husband to pay the wife’s legal expenses. We feel this point has merit. Because of the husband’s substantially superior financial position, he should be required to pay all of the wife’s reasonable attorney’s fees and costs. Canakaris, supra; Kaylor v. Kaylor, 390 So.2d 752 (Fla. 4th DCA 1980); Dominik v. Dominik, 390 So.2d 81 (Fla. 3d DCA 1980); Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

AFFIRMED IN PART; REVERSED IN PART, and REMANDED for further proceedings consistent herewith.

GLICKSTEIN, DELL and WALDEN, JJ., concur.

      . This calculation omits the wife’s assets acquired outside the marital relationship totalling approximately $21,500.00 plus her car, jewelry and social security income of $2,552.40 per year. It also omits the husband’s car, his annual pension income of $8,259.36, plus his tax free bond income of $9,600.00 per year.


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    David A. BRUTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1690.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

We find no merit in appellant’s attack upon the sequential order in which his sentencing procedures were conducted. Particularly is this so in the absence of timely and appropriate objection. Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981). However, the trial court assessed attorneys’ fees pursuant to Florida Rule of Criminal Procedure 3.720(d)(1) and Section 27.56(7), Florida Statutes (1981), without informing appellant of his right to a hearing to contest the amount of the public defender’s lien. Such an order is void. Hoffman v. State, 413 So.2d 150 (Fla. 4th DCA 1982).

We affirm the conviction and sentence, reverse the order on attorneys’ fees and remand to permit the trial court to reconsider the matter of attorneys’ fees after notice and hearing.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

LETTS, C.J., and ANSTEAD, J., concur.


text:
    VENDITTI-SIRAVO, INC., a Florida corporation, Appellant, v. CITY OF HOLLYWOOD, FLORIDA, a municipal Florida corporation, Appellee.
    No. 81-1702.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Andrew M. Chansen of Law Offices of Chansen & Chansen, Fort Lauderdale, for appellant.
    Nancy A. Cousins, City Atty., and Andrew DeGraffenreidt, III, Deputy City Atty., Hollywood, for appellee.
   WALDEN, Judge.

The trial court entered a judgment on the pleadings in favor of defendant, City of Hollywood, and against plaintiff, Venditti-Siravo, Inc., hereafter called Venditti. Venditti appeals. We affirm in part and reverse in part.

Venditti’s amended complaint contained three counts.

Count I was an action for damages based on a breach of contract. Paraphrasing, it appears that the parties entered into an oral contract in November, 1976, whereby Venditti, a property developer, advanced to the City, at the City’s demand, the whole amount of a property assessment in the sum of $26,803.55 even though Venditti’s proper share of the assessment for the property it owned amounted to only $10,274.10. It was alleged that the City agreed that thereafter the City would collect the differential or Venditti’s over payment in the sum of $16,-529.45 from other property owners in the vicinity as their property was later developed. It was alleged that the City promised that the money so collected from subsequent property developers would be repaid to Venditti so that he (and the other owners) would end up paying only their proper share. Attached was a list of subsequent property developed in the area and their respective assessments which, coincidentally, was in an amount sufficient to reimburse Venditti. Venditti alleged the breach in that the City refused to pay him the promised sum of $16,529.45, despite Vendit-ti’s demand.

Count II simply repeated Count I and said the City had been unjustly enriched in taking the money not owed to the City and refusing to repay it.

Count III was a petition for writ of mandamus seeking to compel the City to collect the money in question from other developers and pay same over to Venditti. We take it that Venditti agrees with the trial court’s determination as concerns this count inasmuch as Venditti does not treat it or otherwise take exception in its brief. Regardless, we note that there was a manifest misconception of remedy in attempting to use mandamus under the circumstances. The payment of monies allegedly due under an oral contract is not ministerial. We affirm the disposition of Count III.

Back to Counts I and II, Venditti’s original complaint was dismissed with leave to amend, “. .. in that the complaint fails to state the subsequent developers have developed the property.” This lack was supplied in the amended complaint which, otherwise, was identical to the original complaint. We believe under these circumstances that, at least tacitly, the trial court did determine that the complaint, as amended, stated a cause of action.

The City answered in sum by general denial and offered the affirmative defenses of Statute of Frauds (oral contract not to be performed within space of one year), and Statute of Limitations, which defenses were denied by Venditti.

We now get closer. The City filed its Motion For Judgment on the Pleadings. Fla.R.Civ.P. 1.140(c). The sole reason advanced as the basis for the motion was that Count I was barred by the Statute of Frauds in that it was based on an oral contract.

Certain fundamentals are applicable as concerns a motion for judgment on the pleadings. Such motion has limited application. It is appropriate where the complaint fails to state a cause of action against the defendant or where the answer fails to state a defense or tender any issue of fact. It is similar to a motion to dismiss and raises only questions of law arising out of the pleadings.

More specifically, in the consideration of this motion, all well pleaded material allegations of the opposing party are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Wagner v. Wagner, 196 So.2d 453 (Fla. 4th DCA 1967); Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960); and Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73 (Fla. 3d DCA 1968).

Applying these principles of procedural law we are satisfied that it was error to grant the motion and enter the judgment. Venditti’s amended complaint stated a cause of action. The allegations of the City’s answer and affirmative defenses, for purposes of the motion, were to be deemed false and ineffectual.

Regardless, the City contends that its affirmative defenses are established or admitted in Venditti’s complaint. We disagree. The complaint reflects that the contract was oral and entered into on November 11, 1976. However, if by its terms it is capable of performance within one year, with the intention of the party (a fact issue) being the primary factor, it is not within the Statute. Contracts 2d, Calamari 1977 § 19-18 — § 19-20; First Realty Investment Corp. v. Gallaher, 345 So.2d 1088 (Fla. 3d .DCA 1977); and Monogram Products, Inc. v. Berkowitz, 392 So.2d 1353 (Fla. 2d DCA 1980). Finally the Statute of Frauds may not be employed as a defense where the oral contract has been fully performed by the other party. W.B.D., Inc. v. Howard Johnson Co., 382 So.2d 1323 (Fla. 1st DCA 1980). As to the Statute of Limitations, one of the City’s affirmative defenses, we believe that Section 95.11(3)(k), Florida Statutes (1980), to be applicable to Counts I and II, and it provides a four year period. The contract was made on November 11, 1976, and suit was filed on September 19, 1979, with less than four years intervening.

We hold that neither of the City’s affirmative defenses were established from the pleadings as a matter of law.

Finally the City contends that Ven-ditti may not recover because he is attempting to force the City to pledge its credit contrary to Article 7, Section 10 of the Florida Constitution. We note that this claim has been in nowise raised in the City’s pleadings and we summarily say that it is not available to them at this point because it has not been pled as an affirmative defense under Florida Rule of Civil Procedure 1.110(d).

REVERSED and REMANDED for further proceedings.

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


text:
    Esther MULTACH, Appellant, v. Gilbert ADAMS, Appellee.
    No. 81-1889.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Andrew Helgesen of Bratten & Harris, P.A., West Palm Beach, for appellant.
    Thomas Montgomery, Belle Glade, for ap-pellee.
   WALDEN, Judge.

Multach, lessor, sued Adams, lessee, for past due rent and for damages inflicted upon the demised commercial property, all under the terms of a written lease. Judgment was entered for Adams following a non-jury trial. Multach appeals. We reverse and remand.

The first question has to do with the lessee’s failure to pay claimed rent, which rent the judgment did not mention or allow. The lease was for a retail store. It was for a five year term beginning January 1, 1978. Rental was $200.00 monthly through December 1, 1980, and thereafter at the rate of $250.00 monthly. It was undisputed that Adams had paid no rent since October, 1980.

What may have confused the rent issue was the fact that Adams tardily tendered past due rent to Multach, which tender was refused for reasons not now material. We hold that the refusal of the tender did not constitute a waiver or a forgiveness of the debt.

As a general rule, tender of performance is not the equivalent of actual performance. See 5A Corbin on Contracts, § 1233. If the promisee fails to give the necessary cooperation, i.e., acceptance of tendered performance, then the promisor’s duty to perform may be discharged by virtue of the failure of the promisee to cooperate. Corbin on Contracts, supra. See also Sharp v. Williams, 192 So. 476 (Fla. 1939); 11 Fla.Jur.2d, Contracts, § 210.

However, as Professor Corbin notes, “The question of the effect of a tender of performance arises most frequently in the case of a unilateral money debt.” Corbin on Contracts, supra, at 520. In those cases the tender of performance will not operate as a discharge of the debt nor does the refusal to accept the money tendered operate as a discharge of the debt. Id. at 520-21. However, the refusal to accept a proper tender will prevent the collection of interest or other damages because the failure to receive payment is due to the prom-isee’s own action. Id. at 521.

Thus, Multach is entitled to judgment against Adams for past due rent without interest.

As to damage to the premises, the lease provided:

TWELFTH: Lessee hereby accepts the premises in the condition they are in at the beginning of this lease and agrees to maintain said premises in the same condition, order and repair as they are at the commencement of said term, excepting only reasonable wear and tear arising from the use thereof under this agreement, and to make good to said lessor immediately upon demand, any damage to water apparatus, or electric lights or any fixture, appliances or appurtenances of said premises, or of the building, caused by any act or neglect of lessee, or of any person or persons in the employ or under the control of the lessee.
NINETEENTH: The rights of the lessor under the foregoing shall be cumulative, and failure on the part of the lessor to exercise promptly any rights given hereunder shall not operate to forfeit any of the said rights.

The evidence clearly showed that Adams placed two holes in the exterior wall, one for an air conditioner and one for a garage door. In addition, the tile floor was damaged by Adams when he used the building for a purpose contrary to the provisions of the lease. These items were not repaired and constituted damages to the building. Such damages were contrary to the express terms of the lease, and particularly Paragraph Twelfth. Multach is entitled to judgment on this account. Stegeman v. Burger Chef Systems, Inc., 374 So.2d 1130 (Fla. 1st DCA 1979). See generally 34 Fla.Jur.2d, Landlord and Tenant, § 125.

In final reference to this point concerning the changes in the building, the trial court found that Multach waived her right to enforce that portion of the written contract. We have examined the record and can find no basis for waiver. In possible explanation we note that Section 83.-56(5), Florida Statutes (1981), provides:

(5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance.

And indeed Multach did accept rent following, for instance, the installation of the garage door. However, this statute is applicable only to the rental of a dwelling unit and mobile home lot. Section 83.41, Florida Statutes (1981). Therefore, it is not applicable to the instant controversy.

We reverse and remand for further proceedings consistent herewith.

REVERSED and REMANDED.

HURLEY and DELL, JJ., concur.


text:
    Charles BUSH and Gloria Bush, his wife, Appellants, v. GOLD COAST CRANE SERVICE, INC., a Florida corporation, and Philip Klein, Appellees.
    No. 81-2116.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Gary Alan Friedman of Friedman & Lip-con, P.A., Coral Gables, for appellants.
    Nancy Little Hoffmann and Cathy Jackson Burris of Law Offices of Nancy Little Hoffmann, P.A., and Thomas T. Grimmett of Gunther, Grimmett & Whitaker, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED. See Motchkavitz v. L.C. Boggs Indus., Inc., 407 So.2d 910 (Fla. 1981).

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


text:
    Robert Earl JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-2145.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, a juvenile at the time of the offense, was convicted of robbery with a firearm. At the sentencing hearing appellant was sentenced to fifteen years imprisonment. The trial court did not consider the mandatory sentencing provisions of Section 39.111(6), Florida Statutes (1979), in arriving at this disposition. However, no objection was raised by the defense at the time. Appellant raises the issue for the first time on appeal.

In a survey of the case law in this State, it appears that a distinction is made between those cases where the failure to follow the provisions of Section 39.111(6), Florida Statutes (1979), was raised in the trial court as opposed to those cases where such failure is raised for the first time on appeal.

Under the circumstances of this ease, we determine that the judgment should be affirmed, but without prejudice to appellant’s right to seek relief under Florida Rule of Criminal Procedure 3.850, if he is so advised. Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA), cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393 (1981); O’Berry v. State, 406 So.2d 1251 (Fla. 5th DCA 1981), and Burley v. State, 402 So.2d 73 (Fla. 5th DCA 1981); cf. Glenn v. State, 411 So.2d 1367 (Fla. 5th DCA 1982).

On the other hand, if the point is preserved in the trial court, we would expect to reverse and remand the cause with instructions to resentence such appellant pursuant to Section 39.111(6), Florida Statutes (1979). Eady v. State, 388 So.2d 9 (Fla. 2d DCA 1980); Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981).

Affirmed without prejudice to appellant’s right to seek relief under Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

GLICKSTEIN, DELL and WALDEN, JJ., concur.


text:
    MARYLAND CASUALTY INSURANCE COMPANY, Appellant, v. Ronald J. REEVES, State Farm Mutual Automobile Insurance Company, Jerry Koff, and Debra Ann Koff, Appellees.
    No. 82-85.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Richard H. Gaunt, Jr., of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellant.
    Michael Jeffries of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appel-lee-Reeves.
   HERSEY, Judge.

Appellant, worker’s compensation insurance carrier, seeks to overturn a determination of the trial court made pursuant to Section 440.39(3)(a), Florida Statutes (1981).

The operable portion of the statute provides:

The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility. The burden of proof will be upon the employee.

Appellee Reeves was involved in an automobile accident and received benefits from appellant, worker’s compensation insurance carrier. Reeves subsequently filed suit against the owner and operator of the other vehicle and settled for $7,500. Appellant sought reimbursement from appellee for the benefits it had paid.

The trial court in effect determined that Reeves, because of his own comparative negligence, recovered only one-half of the full value of the damages he sustained.

Under both the statute and case law, the burden of proof is on the employee to demonstrate that his recovery did not represent the full value of his damages. Lumbermens Mutual Casualty Co. v. Simon, 375 So.2d 894 (Fla. 4th DCA 1979).

The issue on appeal is whether employee — insured—appellee carried that burden, i.e., whether there is substantial competent evidence in the record to support the trial court’s conclusion that the amount recovered from the tortfeasor’s insurance carrier represented one-half of the full value of damages, having been reduced by virtue of comparative negligence.-

The only evidence on this point is testimony by the attorney for the tortfeasor's insurance carrier that the claim had been settled for $7,500. In response to questions concerning the amount of the settlement in relation to the value of the claim, answers were elicited to the effect that “the case is worth at least twenty, $25,000.” The case was one of clear liability with

[m]aybe room for some modest offset, but certainly mostly. State Farm, I don’t feel like I can give you a final, honest opinion about that, because I really didn’t get into it deep enough to call it 90, 80.
Q But it was substantially State Farms Insurance’s fault?
A Substantially, yes.

Apparently on the basis of that testimony indicating possible comparative negligence of 10 or 20 per cent the court reduced the carrier’s recovery by 50 per cent. That result is simply not supported by the testimony nor any other evidence in the record. The testimony of the attorney expert who was the only witness to testify establishes' the maximum value of the claim at $20,-000- $25,000 assuming that all of the claimant’s current problems were caused solely by his most recent accident. The attorney testified, however, that he was quite confident that he could have established that a substantial portion of the claimant’s current problems were attributable to prior accidents. In essence the attorney appeared to be of the view that, considering the prior injuries, $7,500 was the full value of the claim. Under these circumstances the carrier is entitled to be reimbursed for what it has paid out in compensation benefits up to the net amount actually received by the claimant after payment of his costs and attorney’s fees. State, Dept. of Health v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981).

Accordingly, we reverse and remand for entry of a judgment in favor of appellant computed on the basis that appellee recovered the full value of his damages.

REVERSED and REMANDED.

LETTS, C.J., and ANSTEAD, J, concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. David LOFTON, Appellee.
    No. 82-256.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert M. Leen of Leen & Schneider, Hollywood, for appellee.
   DOWNEY, Judge.

This is an appeal by the State to review an order granting appellee’s motion to suppress physical evidence.

The testimony adduced at the hearing on motion to suppress reflected that police officers May, Dykema, and Stanley, drove to a window tinting shop on their way to work to pick up Stanley’s private car. After paying for his car, Stanley walked next door to the Superior Car Radio Shop to inquire about the installation of a radio and cassette player. May and Dykema remained in the police car outside the window tinting store.

Richard Morrison, an employee at Superi- or Car Radio, had noticed á gun handle protruding from the right rear pocket of David Lofton, a customer at the store who was making a “really loud and rude” scene over the repair work on his car. Morrison was aware that police officers were in the adjacent store and he “told the secretary to see about getting somebody over there to just calm him (Lofton) down.” Coincidentally, Stanley was already located in the radio shop. He heard Morrison’s information and had the radio shop call the other two officers next door. The manager of the window tinting store came out to the street to inform May and Dykema in the patrol car that “the people at the radio place called down and said that the police officer there advises he needs some help.”

May and Dykema proceeded to the radio store where they saw Stanley waving them inside from the showroom area. Stanley advised them “that there was supposed to be a black male in the first bay sitting in a car who was carrying a gun around in his back pocket.” Stanley led the officers into the first bay area where he ordered two men out of the vehicle with their hands raised. Stanley restrained the suspect and began a frisk of his person, retrieving a gun from Lofton’s rear pocket.

Lofton was placed under arrest. The personal search incident to the arrest revealed twenty-one packets of cocaine. A subsequent inventory search of the vehicle produced two paper bags of marijuana.

On the date the motion was heard, Stanley was no longer a member of the police force; he was in the military service. Therefore, the evidence adduced by the State came from Morrison, an employee of the Radio Shop, and Dykema and May, the two back-up police officers. Throughout the testimony of the officers, appellee objected on hearsay grounds. However, none of these objections was sustained. Nevertheless, the trial judge was troubled by Stanley’s absence since he was the lead officer in the stop and frisk and arrest, and it was his condition of mind that would determine whether his actions were justified. Since Stanley was not there to articulate the founded suspicion to justify the stop and frisk, the trial judge felt the State could not carry its burden of proof and so granted the motion to suppress. This position constitutes the thrust of appellee’s argument on appeal.

Throughout the hearing appellee objected to evidence on hearsay grounds. Much of that evidence was hearsay, but was admissible to show Stanley’s state of mind and not to prove the truth of the facts asserted. Therefore, the evidence was not subject to the hearsay objection and was properly overruled by the court.

Ordinarily, Stanley would have been the logical witness to relate what he was told and his state of mind. However, under the circumstances, there was sufficient admissible evidence adduced to justify Stanley’s actions in stopping and frisking appel-lees. He was apprised by people in a business establishment that an irate black customer with a gun in his rear pocket was causing trouble in one of the bays and that police help was needed. Stanley called for his fellow officers to help. When they arrived he advised them of what he’d been told and they proceeded to investigate. Stanley and Dykema went around the back of the car, while officer May went around the front. Stanley ordered appellee and the radio mechanic out of the car. As appellee got out his right hand reached back toward his rear pocket and Stanley shoved him up against the car and began to frisk him. May, coming from the front, could not see anything untoward about appellee, but Dykema, who was behind Stanley, saw a bulge in appellee’s rear pocket, which appeared to be a gun. He had the same vantage point that Stanley had. We hold these facts were sufficient to justify Stanley’s actions in stopping and frisking appel-lee. The specificity of the information coming as it did from people in a business establishment where the incident took place bore sufficient indicia of reliability to justify the police in suspecting appellee was armed. State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), aff’d, 387 So.2d 963 (Fla. 1980). This suspicion, though already enough to justify the stop and frisk, was further corroborated by what they saw when appellee exited the car. As the Supreme Court of Florida said in State v. Webb, 398 So.2d 820, 824 (Fla. 1981):

The standard for evaluating the reasonableness of a frisk is whether the officers were justified in believing that the suspect was armed and dangerous. If the tip bears sufficient indicia of reliability and it relates that the suspect is armed and dangerous, then the officer, acting on the tip, is justified in his belief that the suspect is carrying a weapon and may frisk him. For the same reasons that we held that there need not be personal observation by the law enforcement officer of criminal conduct, we also hold that what is required for a valid frisk is not probable cause but rather a reasonable belief on the part of the officer that a person temporarily detained is armed with a dangerous weapon.

Upon the finding of the concealed weapon in appellee’s pocket, he was arrested and searched incident thereto. That search divulged a quantity of cocaine.

The people at the Radio Shop did not want to take the responsibility for ap-pellee’s car, so the police called for appel-lee’s wife to pick it up. When they did not learn immediately that she would pick it up, they inventoried the car and found marijuana in the trunk. Under the circumstances, the inventory search was appropriate.

In view of the foregoing, the order appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED with directions.

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


author: DELL, Judge.

text:
    STATE of Florida, Appellant, v. Donald WARGIN, Appellee.
    No. 82-368.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Norman F. O’Rourke, Fort Lauderdale, for appellee.
   DELL, Judge.

The State of Florida appeals an order granting Donald Wargin’s motion to suppress a quantity of cocaine seized during an airport encounter stop and subsequent consensual search of his luggage.

At the Fort Lauderdale Airport, two plainclothes Broward County deputy sheriffs approached the appellee after his actions in the airport terminal fit a drug courier profile. The police officers identified themselves, explained that they were narcotic agents working with the cooperation of the public, and asked the appellee to permit them to inspect his carry on luggage. He consented. Appellee went into a closed room with the officers and unlocked his suitcase. One of the officers lifted a strangely heavy Kleenex box out of the suitcase. The officer later opened the Kleenex box and found a plastic bag containing approximately two pounds of cocaine. The State charged appellee by information with possession of over 400 grams of cocaine with intent to sell or deliver. Appellee moved to suppress the cocaine found in the Kleenex box on the grounds that he had never been informed of his right to refuse to consent to the search and that the police officers told him that he must consent to the search.

The trial court granted appellee’s motion to suppress the cocaine. The court found appellee had freely and voluntarily consented to the search of his luggage after a police encounter stop. The trial court also found that the excessively heavy Kleenex box gave the police a well-founded suspicion that the box contained something other than Kleenex. The trial court concluded, however, that appellee had a right of privacy in the closed and sealed Kleenex box, requiring the police to obtain additional consent before opening it. This failure to request further consent to open containers within the suitcase constituted the basis for the suppression of the cocaine.

The State contends that once the appellee consented to the search of his suitcase for narcotics that such consent extended to any container within the suitcase which might reasonably contain narcotics. We agree and reverse the order of suppression.

The trial court relied on three United States Supreme Court cases in granting the order of suppression, Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1979). This trilogy of cases limited the scope of probable cause searches of closed containers. The trial court did not have the benefit of the United States Supreme Court’s recent decision United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), which overruled Robbins, modified Sanders, extended Chadwick and redefined the permissible scope of searches which reveal closed containers as follows:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marijuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. [Footnotes omitted.]

Id. at 102 S.Ct. 2170-71.

We find no reason to limit the application of Ross to automobiles or to searches conducted only with probable cause. We conclude that the holding in Ross applies to consent searches and that consent to search luggage includes the authority to search closed containers within the luggage which may conceal the object of the search.

Lastly, the police need not make additional requests for consent to open containers found during a consent search. A person may, of course, limit his consent to a police search even during the course of the search by some verbal or physical act indicating the withdrawal of consent. Goldberg v. State, 407 So.2d 352 (Fla. 4th DCA 1981); Major v. State, 389 So.2d 1203 (Fla. 3d DCA 1980), pet. for review denied, 408 So.2d 1095 (Fla. 1981); Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979). The appel-lee could have limited his consent at any time before the police opened the Kleenex box and discovered the cocaine. By neither saying nor doing anything to withdraw his consent, appellee consented to the entire search and everything it revealed.

Accordingly, we reverse the order suppressing the cocaine seized from appellee and remand to the trial court for further proceedings consistent with this opinion.

LETTS, C.J., and ANSTEAD, J., concur.

      . Appellee constantly looked around him in the ticket line, appeared nervous, had limited luggage, purchased a one-way ticket with cash and carried no identification.


text:
    Steven M. BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 82-1274.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Steven M. Bishop, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant seeks review of an order denying his motion for post conviction relief.

It appears to be appellant’s contention in his motion that he is entitled to relief from his sentence because it is contrary to the plea bargain agreed to by the court, the prosecutor and himself. It is alleged the bargain provided that in return for a guilty plea he would be placed on probation and if subsequently violated, the sentence would not exceed three years. His probation was violated and he was sentenced to four years. These allegations require an eviden-tiary hearing.

Accordingly, the order appealed from is reversed and the cause is remanded to the trial court with directions to hold an eviden-tiary hearing before ruling on the appellant’s motion for post conviction relief.

REVERSED and REMANDED.

DOWNEY, DELL and WALDEN, JJ., concur.


author: SCHEB, Acting Chief Judge.

text:
    Charles Edgar LONG, Appellant, v. STATE of Florida, Appellee.
    No. 81-389.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1982.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

In this appeal defendant, Charles E. Long, challenges his convictions for trafficking in cocaine, delivery of methaqua-lone, racketeering, and three counts of conspiracy to traffic in cannabis. We have examined each of defendant’s contentions and find merit only to his challenge to his conviction for racketeering.

Defendant was charged with violating Florida’s Racketeer Influenced and Corrupt Organization [RICO] Act, section 943.462, Florida Statutes (1979). The state’s information charging him with the offense is the same information we held insufficient in Beatty v. State, 418 So.2d 271 (Fla. 2d DCA 1982), and Bowers v. State, 418 So.2d 272 (Fla. 2d DCA 1982). The state argues that the instant case is not controlled by Beatty and Bowers because here a bill of particulars was incorporated into the information, thereby effectively curing the insufficiency noted in those recent decisions.

We do not reach this argument. Even if a bill of particulars could amend the information, the bill of particulars here would not cure the problem addressed in Beatty as it failed to designate which of the myriad crimes proscribed by chapter 893 the defendant was charged with conspiring to commit. See Beatty. Therefore, Beatty is controlling and the trial court’s judgment of guilt under the RICO statute must be reversed.

Accordingly, we affirm the trial court’s judgment of convictions and sentences in case nos. 79-706CF-B, 79-765CF, 79-802CF-Q, 79-803CF-M, and 79-804CF-J, but we vacate the conviction and sentence in case no. 79-799CF-L, and remand for further proceedings in the event the state wishes to renew prosecution.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Russell J. HOWE, Appellant, v. AMERICAN INDEMNITY COMPANY, a corporation, Appellee.
    No. 81-2013.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1982.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   SCHEB, Acting Chief Judge.

Appellant, a pedestrian, was injured by a motor vehicle insured by appellee. Appellant recovered a judgment against appellee under the personal injury protection coverage of the policy issued by appellee. Appellant also sought to recover reasonable attorney’s fees pursuant to section 627.428(1), Florida Statutes (1981). The trial court granted appellee’s motion to strike appellant’s claim for fees and this appeal ensued. We affirm.

The Florida Supreme Court has limited recovery under section 627.428(1) to: the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured. Roberts v. Carter, 350 So.2d 78 (Fla. 1977). Subsequent cases have encountered difficulty over the meaning of the term “contracting insured.” The Third District Court of Appeal has defined this term to include “all claimants who have a direct first party, contractual relationship with the carrier and are thus insured under the policy itself, as opposed to ... third party tort claimants .... ” United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co., 369 So.2d 410, 412 (Fla. 3d DCA 1979).

Several districts have expanded the statute’s applicability to cover not only the named insured, but also family members and passengers riding in the insured vehicle. See United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (insurer responsible for attorney’s fees of resident spouse of named insured); Earnest v. Southeastern Fidelity Insurance Co., 407 So.2d 995 (Fla. 3d DCA 1981) (insurer liable for attorney’s fees incurred by daughter, who was a passenger in vehicle insured by her father); Spaulding v. American Fire & Indemnity Co., 412 So.2d 367 (Fla. 4th DCA 1982) (passenger in the insured motor vehicle was entitled to attorney’s fees).

Recently, in Garrett v. Fireman’s Fund Insurance Co., 419 So.2d 1098 (Fla. 2d DCA 1982), a passenger successfully obtained additional benefits from the insurer because she qualified as an insured under PIP provisions of the policy. We held that she was entitled to recover attorney’s fees under the statute, noting that “[s]he 'stands in the shoes’ of a contracting party because her suit is directly on the policy.” Contra Tracey v. Florida Insurance Guaranty Assoc., 414 So.2d 1159 (Fla. 3d DCA 1982).

However, other cases have been more restrictive in granting awards of attorney’s fees. See Fernandez v. Alonso, 375 So.2d 8 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1193 (1980) (plaintiffs had no connection with the named insured except that his automobile struck their commercial vehicle, and they were denied attorney’s fees); Roberts v. Carter, (third party tort claimants could not recover attorney’s fees). Contra Prygrocki v. Industrial Fire and Casualty Co., 407 So.2d 345 (Fla. 4th DCA 1981) (pedestrian was awarded attorney’s fees).

Unlike Garrett, where the claimant was in a consensual relationship with the insured, the claimant here is making a claim which is adverse to the insured’s interests. He is not in a consensual relationship with the insured, and the statute was not intended to benefit such a claimant. Wilder v. Wright, 278 So.2d 1 (Fla. 1973). Therefore, appellant was not entitled to recover attorney’s fees under section 627.428(1).

We certify that our decision is in direct conflict with the Fourth District Court of Appeal’s decision in Prygrocki.

AFFIRMED.

CAMPBELL and SCHOONOVER, JJ., concur.