author: HENDRY, Judge.

text:
    Willie CUNNINGHAM and Patronella Cunningham, his wife, Appellants, v. Clancie WHITE and Essie White, his wife, Appellees.
    No. 80-172.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Martin Greenbaum, Miami Beach, for appellants.
    Long & Smith, Miami, for appellees.
    Before HUBBART, C.J., and BARK-DULL and HENDRY, JJ.
   HENDRY, Judge.

In August of 1977, the Cunninghams, appellants herein, filed an ejectment suit against the appellees. The action arose from a boundary dispute. A default was entered against the appellees when they failed to plead or appear, and on December 6, 1977 the court rendered final judgment for the appellants. In June of 1978 the appellees moved to set aside the default and final judgments. This interlocutory appeal is from the trial court’s December 1979 order vacating the judgment pursuant to Fla.R.Civ.P. 1.540(b). We affirm.

Fla.R.Civ.P. 1.540(b) provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; .... The motion shall be made within a reasonable time, and.. .not more than one year after the judgment, decree, order or proceeding was entered or taken.

Initially, we note that the appel-lees’ motion to vacate, filed six months after final judgment was entered, was timely made. This is not the only requirement that must be satisfied in order to have a judgment set aside, however. The general rule in such situations is that

relief may be granted within the sound discretion of the trial court upon a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules.

Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 735 (Fla. 1st DCA 1964). The Cunninghams contend that the appellees failed to show a meritorious defense and excusable neglect and that the judge below abused his discretion in vacating the judgment.

The courts of this state have generally been quite liberal in setting aside default judgments, and any reasonable doubt should be resolved in favor of granting the motion in order to permit a trial on the merits. North Shore Hospital, Inc. v. Barker, 143 So.2d 849 (Fla.1962). In their motion, the appellees stated that their neglect was excusable because they had previously litigated the same cause and thought that the matter was resolved. Apparently, two years prior to the present proceeding the Cunninghams filed a quiet title action over the same dispute and at the time of trial took a nonsuit. The court below was not informed of the prior litigation when the present ejectment action was filed. Ap-pellees’ motion also alleged a meritorious defense; the existence of a survey showing that the fence in question is on their own property.

Upon the record presented we are of the opinion that the appellees demonstrated excusable neglect and a meritorious defense. The trial judge did not abuse his discretion in setting aside the judgments. Accordingly, the order appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Archie BARNER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-318.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and PEARSON, DANIEL S., JJ.
   PER CURIAM.

The defendant was convicted and given concurrent sentences for robbery with a firearm and the separate charge of possession of a firearm during the commission of the robbery. Both the adjudication and the sentence on the possession count are reversed on the authority of State v. Pinder, 375 So.2d 836 (Fla.1979) and Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980) (Case no. 77-2480, opinion filed, October 7, 1980). The judgment and sentence for armed robbery are affirmed.


text:
    The STATE of Florida, Appellant, v. James Robert FOSTER, Appellee.
    No. 79-1220.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Janet Reno, State Atty., for appellant.
    Thomas G. Murray and Carl L. Mastzal, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

Appellee Foster was arrested at Miami International Airport, based upon an “alert” on his suitcase by Le Dur, Detective D’Azevedo’s canine companion trained in the detection of illegal drugs. Upon Foster’s consent, the suitcase was opened, and a plastic bag was discovered which was thought to contain cocaine, although the contents later proved to be lactose; additionally, a small quantity of marijuana was later determined to have been in the bag. A subsequent search of Foster’s person revealed a bag of cocaine in each sock. The state appeals from a suppression order. We reverse.

In general, a trained narcotics dog’s “alert” on luggage constitutes probable cause for a subsequent arrest. Harpold v. State, 389 So.2d 279 (1980); State v. Good- ley, 381 So.2d 1180 (Fla. 3d DCA 1980). Whether, in this particular case, Le Dur’s “alert” furnished probable cause for Foster’s arrest depends upon several factors succinctly gathered at 13 San Diego L.Rev. 410, 416-17 (1976):

the exact training the detector dog has received; the standards or criteria employed in selecting dogs for marijuana detection training; the standards the dog was required to meet to successfully complete his training program; the “track record” of the dog up until the search (emphasis must be placed on the amount of false alerts or mistakes the dog has furnished).

Six trial courts for the eleventh circuit have previously recognized Le Dur’s olfactory capacities, generally in light of the criteria enumerated above, as capable of conferring probable cause for arrest-not including Judge Tanksley’s court, sub judice. Refusal to embrace the findings of other courts regarding Le Dur’s qualifications was certainly within the prerogative of the trial court; however, refusal to accept those findings does not necessarily render the subsequent arrest invalid. The question is whether the state was able to present evidence regarding Le Dur’s abilities sufficient to have constituted probable cause-and thereby to justify the warrantless arrest, and body search incident thereto.

On our review of the hearing transcript, we find that the state met that burden. On direct examination of Detective D’Azevedo, the prosecutor elicited the following facts: 1) That D’Azevedo and Le Dur initially spent approximately one hundred training and practice hours working as a team; 2) That Le Dur’s training with D’Azevedo involved in excess of three hundred “alerts”; 3) That Le Dur’s “alert” is readily distinguishable from other signs of interest not necessarily reflecting the presence of narcotics; 4) That Le Dur was capable of “alerting” to amounts of marijuana considerably smaller than those involved sub judice; 5) That Le Dur “alerts” to heroin, cocaine, marijuana and its derivatives, and hashish, and nothing else; 6) That Le Dur has never “alerted” falsely; 7) That Le Dur has been tested on, and demonstrably does not “alert” to, lactose; 8) That, in a properly administered test, Le Dur alerted to Foster’s suitcase.

Since we find that the arrest was valid, because based on probable cause conferred by Le Dur’s “alert” on Foster’s bag, we hold that the discovery of cocaine on Foster’s person was validly made, as a search incident to arrest.

Since Foster was charged with possession of cocaine found on his person, and not in the bag, and since he was not charged with possession of the slight quantity of marijuana found in the bag; and since probable cause for his arrest, which ultimately justified the body search, did not rest upon the search of the bag, we do not consider the validity vel non of the search of the bag, or the consent thereto.

Reversed.

SCHWARTZ, J., concurs in the conclusion only.

      . Apparently, the dog alerted on the marijuana later found in the suitcase. After the bag of supposed cocaine was found in the suitcase, and before it was tested (with negative result), the bags of cocaine were discovered on Foster’s person in a search incident to arrest.


author: COWART, Judge.

text:
    Marvine FRANCIS, Appellant, v. George W. LA PIERRE et al., Appellees.
    No. 79-44.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.

      Steven Burrage of Robert D. Melton, P. A., Orlando, for appellant.
    No appearance for appellees.
   COWART, Judge.

A vehicle operated by Margaret Hamilton and in which appellant, Marvine Francis, was a passenger, collided with the rear of a stopped or stopping vehicle operated by Kenneth Lee Smith and was soon in turn struck from the rear by a vehicle operated by appellee George La Pierre. Francis sued La Pierre but not Hamilton nor Smith.

The trial judge instructed the jury that La Pierre was negligent and that the issue was whether such negligence was the legal cause of any no-fault threshold-injuries sustained by Francis. The jury was also instructed that if Francis’ injuries resulted from two accidents occurring about simultaneously the jury should apportion the damages, if they could, but, if not, the entire damages should be put on La Pierre. During closing argument Francis’ counsel addressed the question of apportionment between the two impacts. In reply defense counsel in closing argument suggested that if Francis did not recover from La Pierre she could still sue Hamilton or Smith. Francis’ counsel then responded to that suggestion and the trial court gave a final curative instruction to the jury directing them not to consider any possible future lawsuits either party might bring. The jury, by special verdict, found that La Pierre’s negligence was not the proximate cause of Francis’ injuries.

On appeal Francis complains (1) of improper argument of defense counsel; (2) that the trial court failed to restrict argument to comparative negligence between appellant and appellees; and (3) that the trial court failed to direct a verdict on the issue of liability.

Although appellee has filed no brief we have carefully reviewed appellant’s brief and the relevant record and, finding no reversible error, we affirm.

The trial court correctly directed a verdict finding that Francis was guilty of no negligence and that La Pierre was negligent. Francis contends that this left but two issues, no-fault threshold and, if met, the amount of her damages. She further cites Gutierrez v. Murdock, 300 So.2d 689 (Fla. 3d DCA 1974), and contends the trial court erred in not limiting the jury’s finding to the negligence of Francis and La Pierre as related to each other, where, as here and in Gutierrez, defense counsel interjects the issue of the possible negligence of other potential tortfeasors.

In Gutierrez, a two car collision, the defendant Murdock contended that to avoid collision with an unknown vehicle he crossed over into oncoming traffic and crashed head-on into the vehicle driven by the plaintiff Gutierrez. The special verdict form there asked what percentage did the defendant’s negligence bear to the plaintiff’s damages. This erroneously left the jury to either compare the defendant’s negligence with that of the plaintiff or with the negligence of the unknown driver of the unknown vehicle. Gutierrez differs from this case in two particulars: The plaintiff Gutierrez was an operator and could have been guilty of negligence; here Francis was a passenger whose lack of negligence had been determined as a matter of law. More importantly, if Murdock’s negligence combined with that of another unknown driver they were joint tortfeasors because there was but one collision and under present Florida law their liability would have been joint and severable and unapportionable as to the plaintiff Gutierrez. By contrast, in this case, there was no unknown third party whose negligence might have contributed to Francis’ damages. There were two collisions either or both of which could have caused Francis’ injuries. The first collision could have been caused by either Hamilton or Smith, or both, but not by La Pierre. The second collision could have been caused by La Pierre’s negligence either alone or in combination with negligence of Hamilton or Smith, or both.

No intelligent jury inquiry into, or counsel argument upon, the possible causes of Francis’ injuries could be made without a consideration of the facts including the possibility that Francis did not suffer the minimum injuries required by law for recovery, and that, if she did, they may have resulted solely from the negligence of Hamilton or Smith in causing the first of the two collisions. The trial court correctly declined to rule as a matter of law that Francis suffered injuries in excess of the legal threshold necessary to recover. The trial court also correctly refused to rule as a matter of law that Francis’ injuries, if any, were caused by the second collision, for which La Pierre was liable, as distinguished from the first collision, for which La Pierre was not liable. Those questions of fact, involving the type and amount of injuries and causation, were correctly left by the trial judge to the jury.

AFFIRMED.

COBB and SHARP, JJ., concur.

      .Florida Rules of Civil Procedure 1.470(b) provides that the court will charge the jury after the arguments are completed. However, in this case, the trial judge, in an extra effort to aid the jury to apply the law to the facts, gave the usual instructions to the jury before counsel’s final argument.

      . In this case, as in Issen v. Lincenberg, 293 So.2d 777 (Fla. 3d DCA 1974), Francis, being a passenger, was not guilty of any negligence contributing to cause her injuries.

      . See, e. g., Baughman v. Vann, 390 So.2d 750 (Fla. 5th DCA 1980).


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

text:
    Timothy SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 79-661/T2-23.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment and sentence entered by the Circuit Court of Sumter County. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On September 5, 1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

DAUKSCH, C. J., and SHARP, J., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COBB, Judge.

text:
    Bobbie Lee MULLIS d/b/a Public Safe-T Oil Service and Supply, Appellant, v. DIVISION OF ADMINISTRATION, State of Florida Department of Transportation, E. Glenn Henning and Mary Emily Henning, Appellees.
    No. 80-15.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Thomas C. Garwood, Jr., of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Jon M. Wilson of Van Den Berg, Gay & Burke, P. A., Orlando, for appellees.
   COBB, Judge.

Mullis, a lessee, appeals from an order of apportionment of a condemnation award wherein appellant was denied any part of the award. Appellees Henning were the lessors and owners of the parcel condemned. The Department of Transportation took the land in question pursuant to Chapter 73, Florida Statutes. Subsequent to a trial by jury and award of compensation to the Hennings, an apportionment hearing was held. The trial court determined that pursuant to paragraphs 8 and 10 in the lease between the Hennings and Mullis that the lessee had no right to share in the condemnation award.

A leasehold interest is property in the constitutional sense, and a lessee is entitled to compensation for the taking of his interest in whole or in part. E.g., Rice v. City of Ft. Lauderdale, 281 So.2d 36 (Fla. 4th DCA 1973), affirmed in part, modified in part, reversed in part, 313 So.2d 649 (Fla.1975). However, a lease may contain a condemnation clause which will usually spell out that in the event of a taking by eminent domain the lease is terminated and the lessee has no estate or interest in the property remaining after the taking which would sustain a claim for compensation. See generally 2 Nichols on Eminent Domain, § 5.23(2) (3d ed. 1979); 27 Am.Jur.2d Eminent Domain § 250 (1966); Annot., 96 A.L.R.2d 1140 (1964).

The issue is whether the terms of the lease may be interpreted to reflect an agreement by the parties to effect an automatic termination of the lessee’s interest in the event of a permanent taking by the state’s exercise of the power of eminent domain. The critical paragraph of the lease agreement between the Hennings and Mul-lis read:

10. It is mutually covenanted and agreed by and between the Lessors and Lessee that in case the said demised premises or any part thereof shall, during any portion of said term or any extension thereof, come into the possession of any receiver, assignee, or other officer acting under the order of any court, or any sheriff, marshal, or any other officer, the Lessors shall have the right at their election to terminate said term, or in case they shall not exercise this right of termination, to accept rent from said receiver, trustee, executor, assignee, sheriff, marshal, constable, or other officer for the term of such occupancy without impairing or affecting in any way the rights of said Lessors against the said Lessee under this lease, (emphasis added).

We are of the opinion that the phrase “during any portion of said term” does not refer to a permanent taking but indicates that the parties were contemplating a temporary loss of possession. In addition, the phrase “come into the possession of any ... as-signee” does not refer to a loss of title.

It has been held that the law does not look with favor on clauses causing forfeiture of the lessee’s interest on condemnation, hence, a lease covenant will be construed not to have that effect if its language in the circumstances possibly permit.

2 Nichols on Eminent Domain, § 5.23(2). We hold that appellant/lessee was not barred by contract from sharing in the condemnation award. Accordingly, the order denying the appellant/lessee’s right to share in the condemnation award is reversed. Since the trial court expressly reserved ruling upon the valuation of the lessee’s interest, this cause is remanded with directions to hold an apportionment hearing to determine the compensation due to appellant/lessee.

REVERSED and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . See generally Orange State Oil Co. v. Jacksonville Expressway Authority, 110 So.2d 687 (Fla. 1st DCA 1959), cert. denied, 114 So.2d 4 (Fla.1959); 4 Nichols on Eminent Domain, § 12.42(3).


text:
    David William PRYOR, Appellant, v. STATE of Florida, Appellee.
    No. 80-73.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender, and Christopher S. Quarles, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

The phrase “at hard labor” is hereby stricken from the sentence as surplusage. Curry v. State, 385 So.2d 8 (Fla. 5th DCA 1980); Manning v. State, 384 So.2d 46 (Fla. 5th DCA 1980).

DAUKSCH, C. J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Michael DAY, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, a Foreign Corporation, Appellee.
    No. 80-477.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    Michael Maher of Maher, Overchuck & Langa, Orlando, for appellant.
    Jacqueline R. Griffin of Wells, Gattis & Hallowes, P. A., Orlando, for appellee.
   PER CURIAM.

Reversed on the authority of Day v. United States Fidelity and Guaranty Company, 388 So.2d 351 (Fla. 5th DCA 1980). Contra, McLellan v. State Farm Mutual Automobile Insurance Company, 366 So.2d 811 (Fla. 4th DCA 1979).

REVERSED and REMANDED.

DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.


author: McCORD, Judge.

text:
    Paul Clifford BAXTER, III, Appellant, v. STATE of Florida, Appellee.
    No. SS-19.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.

      Stephen H. Donohoe, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Having pled nolo contendere to three counts of possession of controlled substances contrary to the provisions of § 893.-13(l)(e), Florida Statutes, appellant appeals from the trial court’s denial of his motion to suppress evidence found in his car. We affirm.

At approximately 10:30 a. m. on May 15, 1979, Detective George Howell of the Vice Squad of the Duval County Sheriff’s Office received a tip from a confidential informant, whom he characterized as previously reliable. Howell testified that he had known the confidential informant for at least three to four months and had successfully obtained search warrants on information received by the informant. He testified that three arrests had been made of persons who had been trafficking in drugs based on information received from the confidential informant. The informant notified Howell that appellant and a Mr. Thomas were going to Orlando from Jacksonville to obtain controlled substances and that they would return to Jacksonville with those substances. Earlier, Officer Howell had been advised by the informant that appellant “had been using his automobile and traveling to Orlando and picking up drugs and returning to Jacksonville.” Howell knew that appellant’s pattern was to return home with his contraband. The informant had previously told him that he had been present when appellant returned to his home, and he had observed appellant remove drugs from his car and take them into his home. Appellant had told the informant where he had obtained the drugs. Howell had been expecting a call from the informant to tell him when appellant would be making his next trip.

After receiving the tip, Howell went to appellant’s residence to determine whether appellant’s car was there. He found that the ear was not at the home and he could not locate it at the other places he checked. At approximately 12:30 p. m., Howell returned to the police station and attempted to obtain appellant’s tag number from the National Crime Information Center, but was unsuccessful since several tags were listed in appellant’s name, and it was unclear as to which cars they were assigned. Howell testified that he knew appellant’s car by sight and could describe it specifically. Shortly thereafter, Howell went to the State Attorney’s Office on other business and, while there, he sought advice as to whether or not he should seek a warrant to search appellant’s car when appellant returned to Jacksonville. Because there was no indication from the tip when or how appellant would return to Jacksonville, because Howell was unable to obtain the tag number for the car, and because the Assistant State Attorney who spoke to Howell indicated that no warrant could be obtained based on the circumstances at that time, Howell returned to the police station to pick up his partner in order to drive out to the interstate highway and wait for appellant’s car to pass. Howell sent another police team to cover a second major road into Jacksonville from Orlando. Howell and his partner parked on an interstate exit at approximately 3:30 p. m. and at approximately 5:00 p. m., he spotted appellant’s car proceeding on the interstate toward Jacksonville. With the assistance of a uniformed patrol car, he stopped appellant’s vehicle, finding appellant and Mr. Thomas therein. Officer Howell and his partner then searched appellant’s car. They found contraband in the interior of the car and in the locked trunk. Thereupon, appellant was arrested.

The trial court denied appellant’s motion to suppress but made no specific finding regarding the informant’s reliability. Appellant asserts that Officer Howell did not have sufficient information to provide probable cause to search the vehicle and that, even if he had had probable cause to search the interior of the vehicle, the search of the locked trunk was invalid since there was no need for the police to unlock the trunk without a warrant. He contends that there was even less necessity or justification for the police to open a manila envelope, which contained drugs, found in the locked trunk. Appellant further asserts that the trial court erred in failing to make a specific finding as to the reliability of the informant, especially since the informant’s tip is the basis for probable cause in this case. Appellant relies upon St. John v. State, 356 So.2d 32 (Fla. 1 DCA 1978); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The record supports a finding that Howell had probable cause, based on the tip, to search appellant’s vehicle. That probable cause, coupled with the existence of exigent circumstances excuses Howell’s failure to obtain a warrant. Howell’s probable cause was not complete enough to obtain a warrant until he saw appellant and Mr. Thomas on the interstate at 5:00 p. m. At that point, the reliability of the tip was confirmed, and Howell had sufficient probable cause to conduct the search. It was then too late to obtain a warrant, and exigent circumstances justified stopping the car and conducting the search without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Benton v. State, 329 So.2d 385 (Fla. 1 DCA 1976).

The officers were justified in searching the locked trunk of the vehicle and the manila envelope since they had sufficient probable cause to believe that contraband would be found therein. U.S. v. Soriano, 497 F.2d 147 (5th Cir. 1974), and Rapp v. State, 389 So.2d 1100 (Fla. 1st DCA 1980).

Since probable cause in this case is based solely on the reliability of the informant, appellant’s contention that the trial court should have made a specific finding as to the reliability of the informant in the order on the motion to suppress is the primary question for review. In the St. John case, this Court ruled, citing Spinelli and Aguilar, that when probable cause is based on an informant’s tip, the trial court is required to make factual findings that the informant was reliable and the information credible. In St. John, the trial court made no such specific finding. This Court found that the record was inadequate with respect to reliability of the informant and that the other ground on which the trial court could have upheld the search (plain view) was invalid. Thus, this Court reversed and remanded for further proceedings “which may include a hearing and determination of whether the informant was reliable and the information credible at the time the information was given.”

St. John, Aguilar and Spinelli do not require reversal in this case, but, to the contrary, those cases lend support to affirmance. Here, unlike St. John, the record is adequate to support a finding that the informant was reliable. In denying the motion to suppress, the trial court implicitly made such a finding since validity of the search was based on the probable cause created by the informant’s tip. Thus, the letter and spirit of the above-cited cases were not violated here. In those cases, the emphasis was placed on the trial court (or magistrate in the cases of Aguilar and Spi-nelli which involved the sufficiency of search warrant affidavits) being properly presented with the factors which established reliability of informants. The emphasis there was not on the trial court itself making a specific finding that the informant was reliable. Those cases do not indicate that, upon an adequate record, an implicit finding to that effect is insufficient. To remand this cause merely to require the trial court to spell out that the informant was reliable would amount to a useless gesture.

We affirm.

MILLS, C. J., and THOMPSON, J., concur.


author: WENTWORTH, Judge.

text:
    Herbert ANSON, John J. Fogarty, E. Hillman Waller, John O'Moore, Harold L. Stewart, Harvey Greenwald as Trustee of the Carol Greenwald Trust, and Jocelyn Blair, as successor Trustee of the Jocelyn Blair Trust, Appellants, v. Douglas LEMPERUER, Co-Executor of the Estate of Allan L. Blair, Deceased, Appellee.
    No. UU-89.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.

      John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee, for appellants.
    Benjamin W. Redding, of Barron, Red-ding, Boggs, Hughes & Fite, Panama City, for appellee.
   WENTWORTH, Judge.

John J. Fogarty appeals from the denial of his motion to dismiss for lack of personal jurisdiction. We affirm.

On February 17,1973, Allan L. Blair, not personally but solely as Trustee under the Jocelyn M. Blair Trust, of Chicago, Illinois, entered into an agreement with John J. Fogarty and several other individuals to create an Illinois general partnership known as the Crystal Sands Development Association. The express objective of the partnership was to acquire land in Florida and develop and construct condominium units and townhouses thereon. Allan L. Blair was an Illinois resident. John J. Fo-garty was a New York resident. Of the five remaining partners, three were residents of Florida.

In 1974 the partnership borrowed money in furtherance of its objective of condominium development on the land then owned by the partnership in Panama City, Florida. In order to induce the First National Bank of Chicago to lend money to the partnership, Allan L. Blair, not in his representative capacity but individually, executed and delivered an unconditional guaranty of any credit extended by First National to Crystal Sands. Crystal Sands then borrowed funds from First National and caused a promissory note in the amount of 14 million dollars to be executed on its behalf. The note was secured by a mortgage on the real property owned by the partnership in Panama City, Florida.

On February 25, 1975, First National declared Crystal Sands to be in default under the 14 million dollar note and instituted mortgage foreclosure proceedings in Florida. On July 30, 1975, a final judgment of foreclosure was entered in favor of First National. On January 4, 1978, a deficiency judgment was entered against Crystal Sands in Bay County, Florida. A final judgment against Allan L. Blair, individually, on account of Blair’s guaranty was entered in Bay County, Florida, on January 11,1978. Allan L. Blair paid First National the sum of $300,000 in satisfaction of the judgment, against him personally in February of 1978. Sometime thereafter Allan L. Blair died. The co-executor of Blair’s estate filed this action against the partners of Crystal Sands seeking damages as a result of Blair’s having made payment under the guaranty to First National. Personal service was made on John J. Fogarty in New York pursuant to Section 48.193, Florida Statutes. No other partners have been served in the action.

On December 18, 1979, John J. Fogarty moved to dismiss the complaint alleging the courts of the State of Florida have no jurisdiction to hear the matters presented by the plaintiff, representing the estate of Allan L. Blair individually. The motion was denied February 8, 1980.

Appellants’ only offer of proof, refuting the allegation that at all times material hereto defendants engaged in a business venture in Florida, was appellants’ sworn affidavit stating “I do not conduct a business in the State of Florida and do not own any real property within the State. I have no contract to insure any person or risk located within the State of Florida.” Because the claim in question clearly arose out of the active conduct of business in Florida under the partnership agreement describing that business as above recited, we attach no conclusive significance to the terms of the affidavit nor to the fact that foreclosure had occurred and the partners’ title to the particular property in question had been divested before the Florida judgment against Blair in 1978. The statute provides for service in “any cause of action arising from” various enumerated acts, including the conduct of a “business venture in this State.” Section 48.193, Florida Statutes.

We agree that under the circumstances presented in this case appellant is subject to the jurisdiction of the Florida courts under the Florida long arm statute.

AFFIRMED.

JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: SIMONS, STUART M., Associate Judge.

text:
    James E. BLAZEKOVICH, Dale Edward Short, and William Robert Messer, Appellants, v. STATE of Florida, Appellee.
    No. 79-1614.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    David R. Damore and P. D. Aiken, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   SIMONS, STUART M., Associate Judge.

The Appellants herein filed a Motion to Suppress on the day of trial and requested that it be heard before trial. Appellee objected on grounds that the motion was not served “a reasonable time before the time specified for the hearing.” The Court refused to hear the motion before trial, refused to consider it during the trial, and fur- . ther refused Appellants’ request to reset the matter for the next day instead of forcing a continuance. Over Appellants’ objections, the Court ordered a continuance and charged it to the Appellants. Appellants took no further steps to set the Motion to Suppress for hearing and did nothing further until they assumed the “speedy trial time” had run. When their Motion to Suppress was eventually heard and denied, they filed a Motion to Discharge, which was likewise denied. Those denials form the basis for appeal.

The Appellants argue that under Florida Rule of Criminal Procedure 3.190(h)(4) they had the right to file their Motion to Suppress on the day of trial. This rule, however, must be read in pari materia with Florida Rule of Criminal Procedure 3.060; consequently, the motion must be served a “reasonable” time before the hearing, absent any exceptional conditions as described in 3.190(h)(4). In this case, Appellants failed to demonstrate any of these special conditions. Thus, the trial court acted within its discretion in continuing the matter and charging the continuance to the defendant. Having done so, the trial court was required to set the cause for trial within a “reasonable” time. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

We cannot say that the cause was not set within a reasonable time. We have considered the other matters on appeal and find them to be without merit. Accordingly, the judgments and sentences appealed from are affirmed.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


text:
    In the Interest of C. E. M., a child.
    No. 79-1814.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by a juvenile from an adjudication of delinquency. The juvenile was charged in a two-count petition with robbery and aggravated battery. The order adjudicating delinquency found the juvenile guilty of the offenses charged in the petition. The transcript indicates and the State agrees that the defendant was actually found not guilty of the aggravated battery count. The adjudication of delinquency is affirmed based upon the finding of guilt as to the robbery count, and the cause is remanded to the trial court for clarification of the finding of guilt as to the aggravated battery count.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


author: DOWNEY, Judge. GLICKSTEIN, Judge,

text:
    Donald L. MALICOAT and Bettye J. Malicoat, his wife, Appellants, v. Andre LaCHAPPELLE and Francine LaChappelle, his wife, Appellees.
    No. 79-1944.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.

      James L. Kershaw, Fort Lauderdale, for appellants.
    Philip J. Gouze, Fort Lauderdale, for ap-pellees.
   DOWNEY, Judge.

Appellants sued appellees and others to recover a deposit made pursuant to a contract to purchase a parcel of realty. A default was entered against appellees, and in due course final judgment for appellants was entered. Approximately sixty days later appellees filed a motion to set aside the default judgment. A hearing was held on said motion and an order was entered on February 19, 1979, denying the motion “because of insufficient evidence.”

On March 20, 1979, appellees filed a motion to correct the order of February 19, 1979, on the grounds that the motion to set aside the default was not denied for insufficient evidence but rather because 1) the motion sought to set aside the default without also seeking to vacate the final judgment and 2) appellants’ counsel objected to counsel for appellees testifying because he was an attorney of record. The motion also contended that the matter had simply been continued over until appellees could get new counsel and amend its motion; This motion to correct was never ruled on, as far as the record reflects. Instead, on April 19, 1979, appellees filed a new motion to set aside the default and final judgment on virtually the same grounds as the original motion. Appellants contended the subject matter of said motion was vulnerable to the defenses of res judicata and estoppel by judgment. However, the trial court held a hearing on this motion and entered an order granting the motion to set aside the default and final judgment. That order is the subject of this appeal. See Florida Rules of Appellate Procedure 9.130(a)(5).

Appellants seek reversal on three grounds, the first of which is that the entry of the February 19, 1979, order barred the trial judge from proceeding with the April 19, 1979, motion.

Appellees contend that the transcript of the hearing on the first motion to set aside the default judgment clearly demonstrates that the trial judge intended to allow appel-lees to amend their motion to set aside the default and vacate the final judgment; we agree that the trial judge did indicate that at the hearing. However, he subsequently entered the order of February 19, 1979, which, by denying the motion because of insufficient evidence, ruled on the merits of the first motion to vacate the default judgment and was therefore a final order. Odum v. Morningstar, 158 So.2d 776 (Fla. 2d DCA 1963). No appeal was taken therefrom, and thus the question that order disposed of became settled. Appellees’ motion to correct the order of February 19, 1979, was untimely (Florida Rules of Civil Procedure 1.530(g)) and was never heard, so that motion is of no avail to appellees. In our judgment the issues raised in the motion of April 19,1979, were settled by the February 19, 1979, order and could not be relitigated. Cf. Webber v. Brickley, 239 So.2d 633 (Fla. 3rd DCA 1970).

Therefore, we reluctantly conclude that the trial judge was without jurisdiction to entertain the second motion to vacate on the grounds alleged therein or to enter the order of August 3, 1979. Said order is accordingly reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED, with directions.

BERANEK, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

I respectfully dissent as I am of the opinion that the remarks of the trial court at the hearing on February 8,1979, led counsel for appellees to believe that the trial court would consider another motion. At one point in the hearing the trial court said, “I think you need to resubmit the motion to vacate judgment. I am going to deny this motion.” While the trial court’s order of February 19, 1979, said that it is “adjudged that the said defendants’ Motion is denied because of insufficient evidence,” the trial court’s remarks at the hearing of February 8, 1979, were contradictory to the order:

MR. MAVRICK: I want to point out that the Court denied their motion because of insufficient evidence.
THE COURT: No. I denied their motion because I think that the first step is to set aside-vacate the judgment. If they can demonstrate that it should be done, then the next step is to set aside the default.

Because of the foregoing circumstances it can be understood why appellees did not appeal from the order of February 19,1979, and proceeded to file thereafter a motion to set aside final judgment and default.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Johnny YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 79-2043.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and . Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant raises three points on appeal. As to his first two points, we affirm. The third point is that the written order of revocation of probation recites a violation; namely, giving false information to a police officer, which was not considered by the trial court at the revocation hearing. The state concurs that this was error.

Accordingly, we affirm in part and reverse in part and remand to the trial court with directions that the third alleged violation be stricken from the written order of revocation of probation.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I agree that the order of revocation should be affirmed. However, I also believe that another of the alleged violations, that of possession of stolen property, should be stricken, since the state conceded at the revocation hearing that proof of this charge was predicated entirely upon hearsay testimony.


author: ANSTEAD, Judge.

text:
    William Joseph HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-37.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Thomas A. Wills and Philip Carlton, Jr., of Law Offices of Philip Carlton, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a judgment of conviction and sentence for possession of marijuana. At issue is the sufficiency of the evidence to sustain appellant’s conviction.

The state sought to prove appellant’s constructive possession of marijuana found hidden on a boat on which appellant and the boat’s operator were arrested. The appellant testified that he was a marine mechanic and on board the boat to make repairs. The operator of the boat pleaded guilty and testified to appellant’s innocence. Several other witnesses testified in support of the appellant’s explanation of his presence on the boat. The state relied on appellant’s presence on the boat and the odor of the marijuana to establish his knowledge and ability to control the contraband. We agree with appellant and the state’s proof was insufficient.

In D. J. v. State, 330 So.2d 35 (Fla. 4th DCA 1976), we reversed a conviction for possession of marijuana where the defendant was the joint occupant of an automobile wherein small amounts of marijuana were found in plain view in various locations in the automobile, some of which were in close proximity to the defendant. Our views in this case as to the sufficiency of the evidence and in particular on the issue of circumstantial evidence are similar to those expressed in that case by Judge Parham:

It is well established that if the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drug’s presence on the premises and the ability to maintain control over it by the accused will not be inferred but must be established by proof. Frank v. Frank, Fla.App.1967, 199 So.2d 117, 120; Markman v. State, Fla.App.1968, 210 So.2d 486, 487; Harris v. State, Fla.App.1974, 307 So.2d 218, 220.
The only evidence in this case with which the State could prove knowledge of the presence of marijuana by the defendant is as quoted above. This is clearly circumstantial evidence, and in order for circumstantial evidence to be sufficient for conviction, it must be “.. . consistent with the accused’s guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt.” Brown v. State, 1937, 127 Fla. 225, 172 So. 921; Miller v. State, Fla.App.1972, 270 So.2d 423, 424; Gaetano v. State, Fla. App.1973, 273 So.2d 84, 86; Whitehead v. State, Fla.App.1973, 273 So.2d 146, 147, 148; Harris v. State, Fla.App.1974, 307 So.2d 218, 220.
We are of the opinion that the facts subjudice are supportive of reasonable hypotheses of the defendant’s innocence and, for this reason, the Adjudication of Delinquency and Order of Commitment to Division of Youth Services hereby are reversed, with directions to discharge the appellant.

330 So.2d at 36.

The state contends that knowledge, here claimed by the state to be inferred from the obvious smell of marijuana, coupled with a potential physical ability to control the marijuana, is sufficient to establish the knowledge and ability to control that constitutes constructive possession. We cannot agree. In D. J. v. State, supra, the evidence of defendant’s knowledge was greater than that presented here and that defendant’s potential ability to reach out and control the marijuana involved was demonstrated to be much greater than that ability to control shown to be possessed by appellant. Yet, as noted, such evidence alone was found insufficient to sustain a conviction for constructive possession.

In Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965), it was held that it may not be inferred from joint occupancy alone that the joint occupant knew of the presence of a hidden illegal substance and also had control of it. The court held that under such circumstances, there must be independent evidence presented to establish the co-tenant’s knowledge and control. As independent evidence in Spataro, the state presented the testimony of the defendant’s sole co-tenant, which testimony clearly established the defendant’s knowledge and control of the marijuana involved. - That proof contrasts sharply with the circumstantial evidence presented here which, although perhaps consistent with appellant’s guilty knowledge, was not inconsistent with his claim of innocence. Such circumstantial evidence is insufficient to sustain a conviction. D. J. v. State, supra.

Accordingly, this cause is reversed and remanded with directions that defendant be discharged.

BERANEK and HERSEY, JJ., concur.

      . Although not necessary to our decision we also have difficulty accepting the state’s contention that knowledge can be inferred merely from the odor of hidden marijuana. The odor was detected by a police official who, by training and experience, was qualified to identify the odor. There was no evidence presented to establish that the odor was sufficiently unique so as to be recognized by anyone who encounters it or that the appellant was familiar with such odor.


text:
    Reginald Norris McKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 80-147.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Richard L. Jorandby, Public Defender, Douglas Duncan and Peter Birch, Legal Interns, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED. Under the circumstances of this case, it is our view that the trial court erred in refusing to allow the appellant to establish on cross-examination that one of the prosecution’s principal witnesses was on probation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Accordingly, this cause is reversed for a new trial.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    Jack LACKORE and Madeline Lackore, his wife, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a Foreign Insurance Corporation authorized to do business in the State of Florida, Appellee.
    No. 80-292.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Robert V. Romani, of Farish, Farish & Romani, West Palm Beach, for appellants.
    Frank G. Cibula, Jr., and Toby A. Turby-fill of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellee.
   ANSTEAD, Judge.

At issue is whether the provisions of Section 627.727(1), Florida Statutes (1977) operate to automatically reduce the policy limits of the appellant, Madeline Lackore’s uninsured motorist coverage by the amount of the coverage for personal injury protection and medical payments benefits also available to her under her policy with the appellee, Hartford Accident & Indemnity Company. We hold that there is no automatic reduction.

Mrs. Lackore was injured in an accident involving an underinsured motorist. Prior to making a claim for uninsured motorist benefits Mrs. Lackore recovered over $6,000.00 in benefits under her personal injury protection and medical payments coverages with the appellee. Prior to arbitration of the uninsured motorist claim, the trial court granted a request by appellee to reduce the available uninsured motorist coverage available from the appellee by the $6,000.00 of benefits paid under the other coverages.

Section 627.727(1) provides:

(1) ... The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

In our view this provision requires a set-off of the coverages involved only where the insured is actually seeking a duplication of benefits under different coverages. That is, an insured is not entitled to be twice compensated for the same element of damage, such as payment for a medical bill or for lost wages, just because he has more than one type of coverage for such element of damage. However, so long as he makes no claim under his uninsured motorist coverage for benefits already received or still available under one of his other coverages, he should not have the amount of benefits available to him under his uninsured motorist coverage reduced. For example, in the case at hand, so long as Mrs. Láckore makes no claim under her uninsured motorist coverage for benefits already paid or still available under her personal injury protection or medical pay coverages, she should be given an opportunity to prove that she has sustained other damages up to the amount of her uninsured motorist coverage limits. There should be no automatic reduction such as was ordered herein. In Stuyvesant v. Johnson, 307 So.2d 229 (Fla. 4th DCA 1975), cert. denied 316 So.2d 290 (Fla. 1975), we held that an insured could not recover the same benefits under both his personal injury protection coverage and uninsured motorist coverage, but we also stated:

It should be noted that the statute makes the UMI coverage excess, thus assuring to the insured the full amount of the UMI coverage to the extent that he can show an entitlement thereto without duplication of benefits.

In Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978), cert. denied 381 So.2d 766 (Fla. 1980), we held that an insurer was entitled to a credit for any third party benefits received by the insured, but it is not clear whether a duplication of benefits was being sought. However, insofar as any language in Florida Farm Bureau conflicts with our decision today, we recede therefrom.

We are aware that our decision apparently conflicts with that of the First District in Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979) and possibly other cases cited therein.

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

BERANEK and HERSEY, JJ„ concur.

      . The appellant has also urged us to bottom our decision on a recent amendment to Section 627.727(1) which clarifies the legislature’s intent as to set-offs of coverages in the same manner as our holding herein, but we do not believe it is necessary to do so. See Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979) and State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980).

      . This same view has been expressed by the Third District in American Service Mutual Insurance Company v. Wilson, 323 So.2d 645 (Fla. 3d DCA 1975).

      . 307 So.2d at 231, footnote 4.


author: BERANEK, Judge.

text:
    Sophia REED, Appellant, v. O.A. & E., INC., Appellee.
    No. 80-621.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.

      Robert E. Murdock and William D. Rick-er, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant, Gulfstream American Bank & Trust Building.
    Michael D. Gelety, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is a non-final appeal from an order granting O.A. & E., Inc., a temporary injunction against its landlady, Sophia Reed, restraining her from permitting the sale of beer and wine in Section A of the leased premises. We reverse.

O.A. & E., Inc., leased Section B from Consolidated Hotels, Inc., which subsequently transferred ownership to Sophia Reed. O.A. & E. subleased Section B to Phillip and Becky Mead, who operate the Propeller Club, a beer and wine bar on the premises. Section A has been leased by a series of businesses beginning with Papa Nick’s Sub Shop and including Munchy’s, Lenny’s House of Pizza, and the current tenant, The Palms Restaurant and Tappery (The Palms). Each Section A occupant pri- or to The Palms had an arrangement with O.A. & E., Inc., whereby O.A. & E. supplied beer and wine to “A’s” customers and “A” provided food for the Propeller Club. In October of 1979, The Palms began selling beer and wine in addition to food, and the Propeller Club started selling hot dogs, soup, potato chips, and pretzels.

O.A. & E. sued Sophia Reed, seeking damages and requesting the court to issue a temporary and permanent mandatory injunction and restraining order requiring Reed to halt the sale of beer and wine in Section A. O.A. & E. claimed paragraph 22 of the lease granted it, as lessees of Section B, an exclusive right to sell beer and wine in Section A. The trial court granted the temporary injunction and restrained Reed from permitting the sale of beer and wine by the tenant in Section A.

Reed raises ■ numerous points on appeal including failure to join an indispensable party, failure to show an inadequate remedy at law, and unclean hands. Reed strenuously contends O.A. & E. was not entitled to the temporary injunction because the alleged restriction in the lease was not positively and clearly expressed. We agree and find it unnecessary to consider any point other than the content of the lease. A covenant restricting a landlord’s right to lease property retained by him must be positively expressed and strictly construed. Winter Park Appliance Center, Inc. v. Walling Crate Company, 196 So.2d 198 (Fla. 2d DCA 1967); Norwood Shopping Center, Inc. v. MKR Corporation, 135 So.2d 448 (Fla. 3d DCA 1961). While Paragraph 22 clearly gave O.A. & E. the privilege to sell beer and wine in Sections A & B during Papa Nick’s Sub Shop’s occupancy, it did not grant O.A. & E. an exclusive right to sell beer and wine in those sections or indicate whether the landlord intended the privilege to extend beyond Papa Nick’s Sub Shop’s occupancy. The fact that tenants occupying Section A other than The Palms refrained from selling beer and wine is irrelevant as the restriction must be evidenced by a clearly expressed intention in the lease itself, not by conduct. Fontainebleau Hotel Corp. v. Kaplan, 108 So.2d 503 (Fla. 3d DCA 1959).

Accordingly, the order granting the temporary injunction is reversed and the cause remanded to the trial court with directions to vacate the order and to conduct such further proceedings as are appropriate. Our ruling is limited solely to the temporary injunction. We do not decide the overall merits of the case. The issues between the parties as made by the pleadings are yet to be determined.

REVERSED AND REMANDED WITH DIRECTIONS.

MOORE and GLICKSTEIN, JJ., concur.

      . This action was instituted in 1977 when Sophia Reed sued in County Court to evict O.A. & E. O.A. & E. filed a counterclaim exceeding the County Court’s jurisdiction, whereupon the case was transferred to Circuit Court. In June of 1979, the court entered an order acknowledging Reed’s representation that she would not prosecute her cause of action against O.A. & E. In March of 1980, O.A. & E. filed a supplemental counterclaim requesting, inter alia, the injunction at issue herein.

      . Paragraph 22 provides in pertinent part:
      The building described in the sketch below as Sections A & B sets forth that portion to be occupied by leassees [sic] and that portion marked B is to be occupied by O.A. & E. and that portion marked A is to be occupied by Papa Nick’s Sub Shop. O.A. & E. had the senior lease of the entire property and has a license to sell beer and wine and shall have the privilege to sell beer and wine in that portion leased by Nicks Sub Shop, Inc. by licensed employees. In a like manner Nick's Sub Shop, Inc. shall have the right to sell food in portion B .. . (Emphasis supplied.)
      The lease was never introduced into evidence at the hearing but both counsel have presented it for this court’s consideration.


text:
    ORLANDO UPHOLSTERY and CNA/Insurance Group, Appellants, v. Ava TILLMAN, Appellee.
    No. TT-400.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    Mark A. Olewinski and Lawrence L. Lid-feldt, Orlando, for appellants.
    No appearance for appellee.
   PER CURIAM.

REVERSED and REMANDED for reconsideration in light of this Court’s opinion in East Coast Tire Company v. Denmark, 381 So.2d 336 (Fla. 1st DCA 1980).

MILLS, C. J„ and LARRY G. SMITH and BOOTH, JJ., concur.


text:
    Lowell Thomas STOKES, Appellant, v. Steven E. CLARK and United Service Automobile Association, Appellees.
    No. TT-445.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.

      Ferrin C. Campbell, Sr., Crestview, for appellants.
    Richard M. Denney of Timmel, Denney & Brannon, P.A., Fort Walton Beach, for ap-pellees.
   PER CURIAM.

The plaintiffs Stokes and wife filed an action for damages sustained in an automobile accident with the defendant Clark. Prior to trial, the plaintiffs filed requests for admission from the defendant Clark and his automobile liability carrier requesting they admit (1) that the defendant negligently operated his automobile at the time of the accident, and (2) that the plaintiff Stokes did not negligently operate his automobile. The defendant denied these requests for admission.

At the conclusion of all of the evidence at the trial, the plaintiffs moved for a directed verdict on the issue of liability of the defendant. This motion was denied and the jury returned verdicts in favor of each plaintiff. After the entry of judgments, the plaintiffs’ attorney filed a motion for the assessment of attorney’s fees and costs pursuant to Fla.R.Civ.P. Rule 1.380(c), on the grounds that the defendant had denied the plaintiffs’ request to admit negligence on the part of the defendant and had denied plaintiffs’ request to admit no negligence on the part of the plaintiff. The trial court denied plaintiffs’ motion for attorney’s fees finding that the defendants had reasonable grounds to believe they might prevail at trial on those issues which the plaintiffs requested they admit.

Plaintiffs appeal from that part of the trial court order denying attorney’s fees and costs pursuant to Fla.R.Civ.P. Rule 1.380(c). Fla.R.Civ.P. Rule 1.380(c), provides that if a party fails to admit the truth of any matter requested and the other party thereafter proves the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof which may include attorney’s fees; however, the mere fact that the requesting party obtained a jury verdict in his favor on that issue does not entitle him to an award of an attorney’s fee. Fla.R.Civ.P. Rule 1.380(c) further provides in part “the court shall make the order unless it finds that * * * (3) the party failing to admit had reasonable grounds to believe that he might prevail on the matter * * Although a jury may find against a party on an issue he has denied, the question of whether the party requesting the admission is entitled to an attorney’s fee and costs for failure to admit, requires that he not only prove the issue denied but also requires a finding that the party failing to admit did not have a reasonable ground to believe that he might prevail on that issue. The trial court found that the defendant did have a reasonable ground to believe that he might prevail on the issue of negligence and denied plaintiff’s motion to assess an attorney’s fee pursuant to Fla.R.Civ.P. Rule 1.380(c). The record reveals competent substantial evidence to support the order of the trial court and there is no showing of an abuse of discretion.

Prior to Hoffman v. Jones, 280 So.2d 431 (Fla.1973), negligence of the parties was ordinarily a matter for a jury’s determination. Since the adoption of the comparative negligence rule in Hoffman, negligence of the parties is seldom a question of law and it is an extremely rare case in which it is not a jury question. Petroleum Carrier Corp. v. Gates, 330 So.2d 751 (Fla. 1st DCA 1976).

In this case, the trial court denied the plaintiff’s motion for a directed verdict on the issue of liability of defendant. A directed verdict should be entered only where the state of the evidence is such that a jury of reasonable men could not reach a contrary result. Both plaintiffs and defendants should have an opportunity to have issues which the court has decided are jury questions, to be decided by the jury without having to hazard the penalty of an assessment of costs and attorney’s fees against them in the event the jury should rule against them on the issue. Otherwise, requests for admission may be used for the purpose of recovering attorney’s fees and costs for the respective parties rather than discovery. A majority of comparative negligence cases result in some finding of negligence on both parties. If the plaintiff requested the defendant to admit negligence which he denies, and the defendant requested the plaintiff to admit contributing negligence which he denies, and the jury finds both guilty of varying degrees of negligence, there could be a claim for attorneys fees and costs by both parties if prevailing on the issue of negligence was the only requirement.

It is not the purpose of Fla.R.Civ.P. Rule 1.380, to establish a foundation for the assessment of attorney’s fees and costs. The purpose of the rule is to compel discovery and to penalize those parties improperly failing to comply with the discovery rules.

AFFIRMED.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


text:
    Henry Duane ALLEN, Petitioner, v. William S. ROWLEY, etc., Respondent.
    No. WW-442.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.

      Earl D. Loveless, Asst. Public Defender, for petitioner.
   WENTWORTH, Judge.

This case is before the court upon petition for writ of prohibition; petitioner is the defendant in a pending criminal action and seeks to prohibit the trial judge from any further proceedings in the action, alleging that the time limits of the speedy trial rule, Fla.R.Crim.P. 3.191, have run. The relevant dates are:

2/19/79-Petitioner is arrested and taken to county jail; detention petition is then filed in juvenile court and petitioner is transferred to a regional center where he is detained by juvenile authorities. Petitioner is subsequently released to the custody of his parents.
3/7/79-Criminal information is filed against petitioner as an adult.
3/8/79-Capias issues. (State does not attempt service of capias, although aware of petitioner’s address and telephone number.)
6/ /79-With his juvenile counselor’s knowledge and permission, petitioner moves with his parents to Alabama. Petitioner is advised by his juvenile counselor that he will be notified if it is necessary to respond to any capias; petitioner maintains contact with his juvenile counselor, who is aware of the outstanding capias.
10/ /79-Petitioner is enrolled in “Operation Divert,” a mental health counseling program which requires petitioner’s daily attendance at a facility in Pensacola. Petitioner’s attendance at this program continues until February 1980.
1/ /80-Petitioner becomes aware of the outstanding capias and turns himself in to the authorities.

Fla.R.Crim.P. 3.191(e) provides that:

If an accused voluntarily removes himself from the jurisdiction of the court or otherwise acts to make himself unavailable for trial, the right to trial within the time herein provided shall on motion by the state be voidable by the court in the interest of justice.

In Mishan v. Crews, 363 So.2d 1178 (Fla. 1st DCA 1978), the court concluded that the petitioner in that case was continuously available for trial, and that the speedy trial time limits were not tolled, despite the fact that petitioner had voluntarily removed himself from the jurisdiction of the court. In Mishan the petitioner had removed himself from the court’s jurisdiction after receiving “specific permission by the trial court” to make a trip. The court further noted that there had been no showing that the trial was delayed because of petitioner’s trip, or that petitioner would not have returned immediately if notified of trial during his trip.

Petitioner in the present case received specific permission from his juvenile counselor to move with his parents (into whose custody he had been released) to the nearby city of Mobile, Alabama. Petitioner subsequently participated in a counseling program at Pensacola, Florida, requiring his daily presence within the court’s jurisdiction. As in Mishan, there has been no showing that the trial was delayed or that petitioner would not have responded immediately upon notification of the outstanding capias. We find that petitioner was continuously available for trial.

The writ of prohibition is granted and the cause is remanded with directions that the prosecution upon the charge against petitioner be dismissed.

MILLS and McCORD, JJ., concur.


author: BLANCHE, Justice LEMMON, Justice

text:
    James A. WAYNE, Sr. v. Bernell GREEN et al.
    No. 80-C-2233.
    Supreme Court of Louisiana.
    Sept. 29, 1980.
   In re Bernell Green, applying for Certio-rari, or Writ of Review, to the Court of Appeal, First Circuit, Nos. 14,047, 14,042. Ascension Parish, 389 So.2d 104; 389 So.2d 102.

Writ denied.

DIXON, C. J., and LEMMON, J., would grant the writ.

BLANCHE, J., would grant the writ and assigns reasons.

BLANCHE, Justice

(dissenting from denial of writ).

I respectfully dissent from the denial of this writ and would have granted the same if for no other purpose than to give guidance in the very close question presented by this writ in an election case.

If “void” in R.S. 18:502 means “void”, it should mean that the votes cast for a candidate who withdrew from the race should not be counted for any purpose. By denying the writ, we approve of counting void votes to determine if one candidate has received a majority. This may be a proper result but it is a legislative function, and not a judicial one.

The facts show that one candidate received a majority vote over the only other candidate in the race and, according to R.S. 18:511(A), the candidate with the most votes should be the one elected.

LEMMON, Justice

(dissenting from denial of writ application).

It is arguable that votes cast for a candidate who has withdrawn, but whose name appears on the machine or ballot, are validly east and should be counted for purposes of calculating a majority. It is just as arguable, however, that such votes are void for all purposes, similar to votes cast by spoiled ballots.

The legislature did not envision this situation when R.S. 18:502 and 511 were enacted, and since legislative intent is not evident, we should grant the application to resolve the problem.

Legislative clarification, although too late for this case, should be undertaken.

      . Under this view, if such a candidate received 40% of the votes, the second candidate received 31%, and the third candidate received 29%, then a candidate who is the choice of only a small minority of the electors would be elected. The result reached by the court of appeal would prevent such an occurrence.


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Kenneth MANNING.
    No. 67355.
    Supreme Court of Louisiana.
    Oct. 6, 1980.
    Rehearing Denied Nov. 21, 1980.
    Dissenting Opinion Dec. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Leonora Estes, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-relator.
    Gracella Simmons, Baton Rouge, for defendant-respondent.
   WATSON, Justice.

Defendant, Kenneth Manning, was charged by bill of information with criminal neglect of family, in violation of LSA-R.S. 14:74, because of the alleged nonsupport of a minor son with the same name. The defense sought to establish that Kenneth Manning is not the biological father of the child. The trial court decided to allow evidence on the issue. On application of the State, a writ was granted to review this ruling.

At a hearing in East Baton Rouge Family Court, Kathleen Manning testified that she and the defendant were married on July 20, 1967, while defendant was incarcerated at Angola State Penitentiary. Kenneth Manning was still in prison when the child was born on December 31, 1967, five months after the marriage. According to Kathleen’s testimony, the birth was premature, not expected until the middle of February. She identified Kenneth Manning as the father but said he had never furnished any support for the child other than a bicycle. Kathleen Manning is disabled by “Lupus” (Tr. 8) and cannot work.

LSA-R.S. 14:74 provides in pertinent part that:

“Criminal neglect of family is . .. intentional nonsupport: ... (3) by either parent of his minor child who is in destitute or necessitous circumstances when such parent has the financial means to provide support, there being a duty established by this Section for either parent to support his child. The parents shall have this duty without regard to reasons and irrespective of the causes of his living separate from the other parent. The duty established by this Section shall apply retrospectively to all children born prior to the effective date of this Section.”

The statute provides criminal sanctions for a parent’s failure to support his or her child. Parenthood is an essential element of the crime, which must be established by the State beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The statute does not define “parent”. Hence, “. . . reference must be made to the substantive law in order to ascertain the existence of the duty. In cases of legitimate children, proof of the birth during marriage establishes, of course, the obligation to support.” State v. Sims, 220 La. 532, 57 So.2d 177 at 179 (1952).

Under the Civil Code articles in effect at the time of the child’s birth, the husband of the mother is presumed to be the father of all children conceived during the marriage. LSA-C.C. art. 184. Absent a timely disavowal, Kenneth Manning is the legal father of the child. State v. Randall, 219 La. 578, 53 So.2d 689 (1951).

Defendant argues that the codal articles are being used as a criminal presumption against him, unconstitutionally relieving the State of its burden of proving an essential element of the crime. However, that argument hinges upon the erroneous assumption that the word “parent” in LSA-R.S. 14:74 limits criminal responsibility to the biological parent. The criminal support statute is intended to enforce an obligation against the legal and biological parents. In both instances there is no criminal responsibility until a civil obligation is imposed. State v. Hubbard, 228 La. 155, 81 So.2d 844 (1955). Paternity is an essential element of the crime, but it can be either legal or biological. Ideally, the two are identical. However, in the case of adoption and under certain other circumstances, one can be a legal parent without biological affinity. Warren v. Richard, 296 So.2d 813 (La., 1974); Succession of Mitchell, 323 So.2d 451 (La., 1975). See the discussion at 37 La.L.Rev. 57. Here, legal parenthood would be established via proof that the defendant was married to the mother at the time of the birth and that he has failed to timely disavow the child. Evidence that Kenneth Manning is not the biological father of the child is inadmissible. The wife does not have the oppressive burden of proving that her husband was the actual father of her child. State v. Randall, supra.

In a case involving the constitutionality of a similar presumption, a California Court of Appeals found that:

“The so-called conclusive presumption is really not a presumption but rather a rule of substantive law . .. adopted by the Legislature to preserve the integrity of the family and to avoid the social stigma associated with illegitimacy.” People v. Thompson, 89 Cal.App.3d 425, 152 Cal. Rptr. 478, 482 (1979), quoting from People v. Russell, 22 Cal.App.3d 330, 335, 99 Cal. Rptr. 277, 280 (1971).”

In this prosecution against the legal father for willful failure to support a minor son, the court found that the issue of biological paternity was irrelevant.

The Louisiana Legislature has the power to determine that, as a matter of overriding social policy, both husband and wife will be legally responsible for the support of children born during the marriage. The lower court erred in ruling that evidence of the defendant’s biological non-paternity could be introduced as a defense in a criminal neglect prosecution based on legal parentage. The ruling is reversed and the case is remanded for further proceedings not inconsistent with this holding.

REVERSED AND REMANDED.

DENNIS, J., dissents with reasons.

LEMMON, J., dissents and will assign reasons.

DENNIS, Justice,

dissenting.

I would uphold the trial court’s ruling which allowed the defense to introduce evidence to show that the defendant was not the biological father of the child. Defendant was incarcerated at the Louisiana State Penitentiary at Angola during the time required for bringing an action to disavow paternity. Under these circumstances, it is fundamentally unfair to use civil law presumptions of paternity to resolve defendant’s criminal liability for failure to support the minor child. Moreover, I question whether these presumptions should ever be used to establish paternity in criminal neglect prosecutions.

      . In brief, the State maintains that conception occurred in the visiting room at Angola while Ms. Manning was sitting on the defendant’s lap and that defendant wrote a letter to the warden of Angola requesting special permission to marry because of Kathleen’s pregnancy. The hearing was stayed, pending writs to this court, and the transcript contains no evidence of these allegations.

      . The amendments to the articles governing presumptions of paternity in Louisiana were by Acts No. 430 of 1976. Since these amendments affect substantive rights and contain no language indicating an intent to make them retroactive, all cases involving operative facts transpiring before the effective date of Act 430 are to be decided solely on the basis of law and jurisprudence then in effect. Pounds v. Schori, 377 So.2d 1195 (La., 1979). .

      . See California Evidence Code § 621: “Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of marriage.”

      . California Penal Code § 270 defines the offense of criminal neglect of children. Section 270e specifically provides that proof of parenthood in criminal neglect cases is to be made in the same way as in any civil case. Louisiana law does not have a similar provision.