author: BOARDMAN, Acting Chief Judge. GRIMES, Judge,

text:
    PENINSULAR LIFE INSURANCE COMPANY, Appellant, v. Johnnie J. WADE, Sr., Appellee.
    No. 82-209.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1983.

      Leonard H. Johnson of Dayton, Sumner, Luckie & McKnight, Dade City, and Peter Foley of Ragsdale & Liggett, Raleigh, N.C., for appellant.
    Thomas P. McAlvanah of Gibbs & McAl-vanah, Dade City, for appellee.
   BOARDMAN, Acting Chief Judge.

Defendant Peninsular Life Insurance Company appeals a final judgment against it awarding plaintiff/appellee Johnnie J. Wade, Sr. $5000. We affirm.

The facts, taken in the light most favorable to appellee, are as follows:

Appellee and his now deceased wife both applied for life insurance policies with appellant and were both rejected for failure to meet the health standard. Earl Booth, the insurance agent employed by appellant whom the Wades consulted, then advised them to apply for the policy in issue here, explaining that it was a high risk policy but would pay full benefits. The Wades had requested full coverage policies and expected to receive precisely that. The Wades did apply for and were issued such policies, Mrs. Wade’s policy having a face value of $5000.

Upon receiving the policy, appellee read the benefits portion thereof, which provided:

IN CONSIDERATION of the payment of the Mode Premium stated in the schedule above, on or before the Date of Policy and continued payment of such premiums during the continuance of this Policy until death of the Insured, the Company will pay the Beneficiary, upon receipt at the Home Office of the Company of due proof of death of the Insured, the Death Benefit applicable to the policy year in which death occurs.
The Death Benefit for the first three policy years is given in the table below for each $100 of Annual Premium.
Death Benefit
Policy Year Per $100 Annual Premium
1 $108.00
2 224.64
3 350.61
After the first three policy years, the Death Benefit of the Policy is the Ultimate Face Amount as shown in the schedule above.

Appellee then questioned Booth about the three-year limitation provision in the presence of his sister-in-law (who corroborated his testimony concerning the discussion) and his wife. Booth told appellee that very few people understood this type of policy but that he, Booth, was one of them and that the policies would pay full benefits from the date of issuance.

In reliance on Booth’s representations, appellee continued to make premium payments on the policies. His wife died less than six months after issuance of the policy on her life. When notified of Mrs. Wade’s death, Booth assured appellee and his sister-in-law that the policy would pay $5000. However, appellant subsequently refused to pay the $5000 face amount, relying on the three-year limitation provision of the policy, and this litigation ensued.

The general rule is that when the meaning of the policy is clear, it will be enforced even though the insurer’s agent had made representations as to coverage which were not included in the policy. Hydraulic Equipment Systems & Fabrication, Inc. v. Pennsylvania Millers Mutual Insurance Co., 277 So.2d 53 at 57 (Fla. 3d DCA 1973); State Liquor Stores # 1 v. United States Fire Insurance Co., 243 So.2d 228 (Fla. 1st DCA 1971).

The general rule [in Florida] is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is not applicable to matters of coverage as distinguished from grounds for forfeiture. In other words, while an insurer may be estopped by its conduct from seeking a forfeiture of a policy, the insurer’s coverage or restrictions on the coverage cannot be extended by the doctrine of waiver and estoppel.

(Citations omitted.) Six L’s Packing Co., Inc. v. Florida Farm Bureau Mutual Ins. Co., 268 So.2d 560, 563 (Fla. 4th DCA 1972), cert. discharged, 276 So.2d 37 (Fla.1973).

However, Hydraulic and State Liquor Stores involved representations made only before, not after, the policies in question were issued, and Six L’s involved the insured’s duty to make monthly reports on the value of the property insured and is in no way analogous to the instant case.

Our research, which included a review of the law in other jurisdictions, revealed no case directly on point, i.e., involving an insurance agent’s incorrect representations made as to the meaning of policy language after the insured had read the portion of the policy in question. However, we have found cases in which the insurer was held estopped to deny coverage where the insured was assured of coverage and sustained a loss before learning that the policy actually issued did not provide coverage for the loss in question. E.g., Burns v. Consolidated American Insurance Co., 359 So.2d 1203 (Fla. 3d DCA 1978); Emmco Insurance Co. v. Marshall Flying Service, Inc., 325 So.2d 453 (Fla. 2d DCA 1976); Monogram Products, Inc. v. Berkowitz, 392 So.2d 1353 (Fla. 2d DCA 1980); Liberty Mutual Fire Insurance Co. v. Sanderman, 286 So.2d 254 (Fla. 3d DCA 1973); Harr v. Allstate Insurance Co., 54 N.J. 287, 255 A.2d 208 (1969); Dodge v. Aetna Casualty & Surety Co., 127 Vt. 409, 250 A.2d 742 (1969); Hully v. Aluminum Co. of America, 143 F.Supp. 508 (S.D.Iowa 1956). See generally J. Appleman, Insurance Law & Practice § 9090 (1981).

We think Emmco is instructive. Emmco sought a reversal of a declaratory judgment decreeing coverage under an insurance policy it had issued to Marshall, a crop dusting company which had been sued by a third party for chemical damage caused by Marshall’s spraying. Marshall had applied for insurance through an agent of Emmco and had specifically requested in its application that Emmco provide chemical damage insurance. The policy issued specifically excluded chemical damage. This court affirmed the trial court’s ruling that “as a matter of law, Emmco was responsible for chemical damage coverage if its agent failed to provide such coverage or failed to notify the Flying Service that the policy which in fact issued excluded such coverage.” 325 So.2d at 454. Accord Liberty Mutual Fire Insurance Co. v. Sanderman.

Here, while it is true that appellee’s application did not contain a written request for full benefits as far as we know, appellee was affirmatively misled by appellant’s agent and employee, Booth, after having read the policy coverage provision and called it to Booth’s attention. We consider Booth’s behavior far more egregious than that of the Emmco agent who merely failed to notify the insured that the policy excluded the requested chemical damage coverage. We agree with the reasoning in Harr that

where an insurer or its agent misrepresents, even though innocently, the coverage of the insurance contract, or the exclusions therefrom, to an insured before or at the inception of the contract, and the insured reasonably relies thereupon to his ultimate detriment, the insurer is es-topped to deny coverage after a loss ór a risk or from a peril actually not covered by the terms of the policy. The proposition is one of elementary and simple justice. By justifiably relying on the insurer’s superior knowledge, the insured has been prevented from procuring the desired coverage elsewhere.... If the insurer is saddled with coverage it may not have intended or desired, it is of its own making, because of its responsibility for the acts and representations of its employees and agents. It alone has the capacity to guard against such a result by the proper selection, training and supervision of its representatives.

255 A.2d at 219. See also Jefferson Realty v. Fidelity & Deposit Co., 410 F.2d 847 (5th Cir.1969).

As stated in Burns: “While estop-pel cannot be invoked to create coverage clearly excluded by a written contract of insurance, the concept may be utilized against an insurer when its conduct has been such as to induce action in reliance on it.” 359 So.2d at 1207. We conclude that appellant is estopped to deny full coverage on Mrs. Wade’s life, notwithstanding the clear and unambiguous policy provision, after its agent and employee unqualifiedly held himself out as an expert on policies such as appellee’s and misinformed appellee as to the meaning of that provision, which actions would be expected to and did induce appellee’s reliance on the agent’s false representations.

Accordingly, the final judgment is AFFIRMED.

CAMPBELL, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

In addition to those cited in the majority opinion, the following Florida decisions also support the general rule that waiver and estoppel are not applicable to matters of insurance coverage as distinguished from grounds for forfeiture. Radoff v. North American Co. for Life & Health Insurance, 358 So.2d 1138 (Fla. 3d DCA 1978); Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla. 1st DCA 1976); Johnson v. Dawson, 257 So.2d 282 (Fla. 3d DCA 1972); see also Reisman v. New Hampshire Fire Insurance Co., 312 F.2d 17 (5th Cir.1963) (applying Florida law); Kaminer v. Franklin Life Insurance Co., 472 F.2d 1073 (5th Cir.1973) (applying Florida law). Of greater significance is the fact that when the supreme court discharged certiorari in Six L’s Packing Co. v. Florida Farm Bureau Mutual Insurance Co., it did not do so upon jurisdictional grounds but rather stated, “we hold that the District Court of Appeal has correctly decided the cause and its decision is adopted as the ruling of this Court.” 276 So.2d at 38. The opinion of the district court of appeal to which the supreme court referred contained the language quoted by the majority in the instant case for the proposition that waiver and estoppel cannot enlarge insurance coverage.

There is an annotation at 1 A.L.R.3d 1139 (1965) entitled “Doctrine of estoppel or waiver as available to bring within coverage of insurance policy risks not covered by its terms or expressly included therefrom.” The annotation and its supplement cite cases from forty-one states supporting the rule that waiver and estoppel cannot bring within the coverage of an insurance policy risks which are not covered by its terms. Cases from eight states are cited for the contrary view. (There is an overlap among the states because some of them have decisions going both ways.)

In three of the four Florida cases cited by the majority in support of its holding, the opinions do not reflect that the general rule concerning waiver and estoppel as it relates to coverage was even argued. Only in Burns v. Consolidated American Insurance Co. (Judge Hubbart dissenting) does the court mention the general rule. However, the court purports to distinguish the rule by concluding that the conversations between the insured and the agent may have created a parol contract contrary to the provisions of the written insurance policy. In the present case, the majority does not suggest that it based its position on a parol contract with an agent who was not shown to have the authority to amend the terms of the policy.

I can see no basis for making a distinction between conversations with the agent which took place after issuance of the policy and those which occurred beforehand. The agent’s statements would still constitute waiver and estoppel if these doctrines could be raised. . Even though the language of the policy is clear, given the facts of this case I can understand why the majority wishes to affirm the award of the full coverage. Unfortunately, I believe the case represents a good example of the timeworn adage that “hard cases make bad law.”

I respectfully dissent.


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    Clara STROTHMAN, Appellant, v. HENDERSON MENTAL HEALTH CENTER, INC., a/k/a Henderson Mental Health Clinic, a Florida non-profit organization, Appellee.
    No. 82-1092.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Rehearing Denied Feb. 15, 1983.
    Steven D. Rubin of Weisman & Douglas, P.A., Pompano Beach, for appellant.
    Patrick L. Bailey of Sullivan, Ranaghan, Bailey & Gleason, P.A., Pompano Beach, for appellee.
   ANSTEAD, Judge.

The award of attorney’s fees to ap-pellee pursuant to the provisions of section 57.105, Florida Statutes (1982) is hereby reversed. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). The mere failure of the appellant to state a cause of action in her original or amended pleadings was not sufficient, in and of itself, to support a finding that her claim was so lacking in merit as to justify the invocation of section 57.105.

We again caution trial courts in this district that before such an award may be made there must be a finding that the position advanced by the losing party is virtually frivolous, Whitten, at 505; and this finding must be predicated upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record.

DELL and WALDEN, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge, WALDEN, Judge,

text:
    Stephen Anthony MENDOLIA, Appellant, v. STATE of Florida, Appellee.
    No. 81-1613.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 1983.
    Richard L. Jorandby, Public Defender, Allen DeWeese, 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.

AFFIRMED.

LETTS, C.J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

WALDEN, J., dissents with opinion.

GLICKSTEIN, Judge,

concurring specialty-

Appellant seeks review of a judgment adjudging him guilty of grand theft and sentencing him to five years imprisonment. I have considered all his arguments and believe one warrants discussion, but not reversal; namely, his allegation that prosecu-torial remarks during closing arguments constituted reversible error.

After the first part of defense counsel’s closing argument, but during his own, the prosecutor stated:

Now, the question for you to decide is did the defendant do it? And in opening statement, I alluded to that fact. Now, you heard Mr. Kramer. And quite frankly, the entire argument should begin, “Once upon a time,” because it is a fairy tale. It’s an absolute fairy tale and a smokescreen. It is significant in what it omits and in what Mr. Kramer promised you he was going to show you in his opening statement. He said that he would prove that there were absolute falsehoods on the part of the State. Where are they?
There’s a certain amount of confusion from a befuddled woman who doesn’t perhaps know the difference between two minutes and five minutes.
Mr. Kramer also said he was going to show you how Corporal Lindsey had not told the truth about the warning shots. You heard Fonda Cook testify she didn’t know. She didn’t know if there were two warning shots or one shot directed at the defendant and one shot was a warning shot. You heard the officer testify that he came on the scene, saw the defendant at once, he saw him once, twice, three times. He chased him 300 feet. He said he called on him to stop, and he didn’t. Okay?
The fingerprints. Red herring, as it were, dragged across. Just like a football player. I don’t know if many of you are football fans, but I like to call it “misdirection.” Because Mr. Kramer and his client don’t want to talk about the evidence, they don’t want to talk — you didn’t hear them talk about the inferences — [Emphasis supplied.]

Appellant contends that, because he did not take the stand or present other evidence, the foregoing remarks were improper comments on his right to remain silent. A review of the trial transcript, however, shows they were a retort to defense counsel’s argument — not a commentary on appellant’s silence — intended solely to steer the jury back on the course the prosecutor had charted.

In his attempt to steer the jury, the prosecutor referred to the fingerprints because of the frequency with which they and a palm print became a heated issue throughout the trial. Both had been found at the scene, but the fingerprints were of insufficient quality for comparison and the palm print was never compared with those of appellant because the court order requiring appellant to be fingerprinted had expired and the prosecutor was on military leave when another order should have been obtained. These issues, as well as the prospective testimony of the State’s fingerprint expert, were discussed during the trial in two lengthy conferences outside the jury’s presence. Commenting on this topic during the first part of his closing argument, defense counsel had said:

Now, George Miller testified that the prints that were given to him by Officer Lindsey were not of sufficient quality, the fingerprints weren’t. But what about that palm print? You know, don’t the police have a duty to do everything to try to prove a person’s innocence as well as trying to prove a person is guilty? Don’t the police officers — shouldn’t they have that responsibility, too? The procedures were there for them to get—

No doubt this remark was the straw that broke the camel’s back, prompting the complained of rebuttal by the prosecutor who knew why the palm print comparison was not made. Consequently, the prosecutor’s use of the words “his client,” “they,” and “them” were the result of heat, not light, and we certainly should not put our imprimatur on them. Nevertheless, while speaking for the supreme court in Jones v. State, 204 So.2d 515, 517 (Fla.1967), the late, then retired, Circuit Judge Joseph S. White said:

In making a comparison with previous decisions on the subject, it is important to analyze the prosecutor’s argument in the light of the circumstances in each case.

I have done that in this case and, on balance, conclude the prosecutor did not go beyond the pale.

WALDEN, Judge,

dissenting.

I would reverse Mendolia’s conviction because of improper prosecutorial comment of constitutional dimension.

At trial Mendolia did not take the stand or present any evidence. During closing argument, selecting the cleanest example, the prosecutor stated:

The fingerprints. Red herring, as it were, dragged across. Just like a football player. I don’t know if many of you are football fans, but I like to call it “misdirection.” Because Mr. Kramer [Mr. Kramer was Mendolia’s trial counsel] and his client don’t want to talk about the evidence, they don’t want to talk — you didn’t hear them talk about the inferences — (emphasis supplied)

Clearly, beyond doubt, the foregoing was a prosecutorial comment upon the fact that the Mendolia claimed his privilege to remain silent in the face of accusation.

It was commented in Clark v. State, 363 So.2d 331 (Fla.1978) at page 333:

The Fifth Amendment to the Constitution of the United States provides: No person . .. shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; ... The Supreme Court of the United States, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), construed this right to mean that the prosecution may not use at trial the fact that the defendant claimed his privilege to remain silent in the face of accusation. Indisputably, evidence of post-arrest silence is improper because it violates the defendant’s right against self-incrimination. If properly preserved for appeal through objection, the admission of such testimony constitutes reversible error. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975).

Here, the error was preserved via proper objection and motion. Clark v. State, supra.

But what about the State’s contention that the prosecutor was merely attacking the logic of defense counsel’s closing argument, or, as is suggested, the prosecutor’s remarks were only a retort to defense counsel’s argument intended solely to steer the jury back on the course the prosecutor had charted.

First, as to the prosecutor’s intention, he very well may or may not have so intended his remarks. However, his intention is of no moment. The traditional focus in the cases dealing with improper prosecutorial comment has not been on the prosecutor’s motive, but rather on the interpretation that may be given to those comments by a jury. Trafficante v. State, 92 So.2d 811 (Fla.1957) and Gordon v. State, 104 So.2d 524 (Fla.1958).

Continuing, it is well settled that the State may meet a challenge issued by defense counsel’s argument by means of a fair reply which discusses the lack of evidence or testimony to support the defense’s premise. State v. Jones, 204 So.2d 515 (Fla.1967) and Adjmi v. State, 139 So.2d 179 (Fla. 3d DCA 1962), rev’d on other grounds, 154 So.2d 812 (Fla.1963). However, the prosecutor’s rebuttal or refutation must be fair; that is, his comment must not be so vigorous as to be “fairly susceptible” of being interpreted by the jury as referring to a criminal defendant’s failure to testify. Clinton v. State, 56 Fla. 57, 47 So. 389 (1908) and Trafficante, supra.

In Clinton the Florida Supreme Court noted that there are limits to the extent to which the State directs the jury’s attention to those portions of the evidence which were in controversy and those which were uncontroverted. The Clinton court stated:

The State still has the right to direct the attention of the jury to that portion of the evidence as to which there is conflict and to that portion which is without conflict. Testimony may in a sense be contradicted in various ways, as by inherent improbability, by cross-examination, or by the demeanor of the testifier. So long as the State does not exercise its preexisting right, so as to make it directly or covertly a comment upon the failure of the accused to voluntarily become a witness, the law is not violated. (Citation omitted and emphasis added.)

(Id. at 390.)

Here the prosecutor’s comments went beyond the permissible bounds and were even more than “fairly susceptible” of being interpreted as referring to the appellant’s failure to testify. Trafficante, supra, and David v. State, 369 So.2d 943 (Fla.1979).

If defense counsel in criminal cases is to be effective it is his function and duty in closing argument to discuss the shortcomings of the State’s case, to include deficiencies in the proofs. This was done here. Does defense counsel thereby waive the defendant’s Fifth Amendment rights so that the State can then freely comment on the defendant’s silence using the justification and basis, as here, that such comments were only a retort to defense counsel’s argument intended solely to steer the jury back on the course the prosecutor had charted? I think not. Otherwise, Fifth Amendment rights evaporate into nothingness.

Reflecting on the contents of the transcript and the above quoted portion it is evident that there were various ways that the prosecutor could have properly countered the argument of defense counsel. Clinton, supra.

Finally, in the cases cited in the State’s brief I can not find a single authority in support of what was done here.

In my opinion the rights of defendant were violated in a way that can only be corrected by a new trial.

I would reverse and remand for a new trial.


author: PER CURIAM.

text:
    Carlos FORD, Petitioner, v. Louis L. WAINWRIGHT, Respondent.
    No. AH-382.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.
    See also Fla.App., 415 So.2d 76.
    Beverly J. Hill, Florida Institutional Legal Services, Gainesville, for petitioner.
    David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Pursuant to the opinion of this court rendered June 4,1982, 415 So.2d 76, an eviden-tiary hearing was conducted before the Honorable John J. Crews, as court-appointed commissioner, for the purpose of making findings of facts and conclusions of law, together with recommendations on the question of whether or not attorney Futch’s failure to file an appeal of petitioner’s criminal conviction constituted ineffective assistance of counsel depriving petitioner of his fundamental right to appeal.

Judge Crews found that attorney Futch was retained at a reasonable fee of $150 to represent petitioner at sentencing; that at no time did counsel agree, nor was he ever employed to file notice of or to perfect an appeal; and that, while counsel did consult with both trial lawyers, he concluded that an appeal could not be successfully prosecuted and advised petitioner to apply to the presiding judge for appointment of a public defender if he decided to pursue his right to appeal. Based on the foregoing findings, Judge Crews concluded that attorney Futch’s failure to file an appeal of petitioner’s criminal conviction did not constitute ineffective assistance of counsel depriving petitioner of his fundamental right to appeal.

Petitioner has filed an exception to the report submitted by Judge Crews. We have considered same together with attorney Futch’s deposition of October 28, 1982 and conclude that there exists no inconsistency with the aforementioned findings and that attorney Futch timely rendered those services for which he was employed.

Accordingly, the petition for writ of ha-beas corpus for a belated appeal is denied.

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


author: WIGGINTON, Judge.

text:
    Gilbert William CORNWELL, Appellant, v. STATE of Florida, Appellee.
    No. AJ-396.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.

      Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, Tallahassee, Gilbert Cornwell, pro se, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Cornwell timely appeals his conviction and sentence, following a jury trial, on a charge of sexual battery of his eleven year old stepdaughter. Finding no reversible error, the public defender filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Corn-well was permitted thirty days to file his own brief. Upon this Court’s initial review, additional briefing was sought and received on issues relevant to a thorough and proper disposition of the case.

Although several issues were presented by Cornwell and other issues were posed sua sponte by the court, we find none so meritorious to cause reversal and accordingly affirm the trial court’s judgment and sentence. However, disposition of Corn-well’s motion for judgment of acquittal warrants explanation.

Appellant’s motion was made at the close of the State’s case and renewed following presentation of the defense case on the ground that the State had failed to prove a prima facie case, in that the testimony was “rather ambiguous, vague” and indefinite and that the evidence was simply insufficient. We find this motion to be deficient to preserve the point on appeal as it does not fully set forth the ground on which it is based. Rule 3.380(b), Florida Rules of Criminal Procedure; Sanderson v. State, 390 So.2d 744 (Fla. 5th DCA 1980); Patterson v. State, 391 So.2d 344 (Fla. 5th DCA 1980).

Cornwell’s shotgun motion failed to specify for the trial judge to what extent the evidence was insufficient. And, unless the error complained of is adequately brought to the attention of the trial judge, it is not preserved and cannot be considered by this Court. G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1977).

The judgment and sentence is therefore AFFIRMED.

JOANOS, J., and SHAW, LEANDER, Associate Judge, concur.


author: PER CURIAM. ERVIN, Judge,

text:
    Rebecca WILLIAMS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-82.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.

      Ronald D. Combs, Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    Malcolm S. Greenfield, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Williams complains of Parole and Probation Commission action setting her presumptive parole release date based on parole guidelines adopted subsequent to the date of her offense. We again approve the procedure applied as not being violative of the proscription against ex post facto laws and affirm the commission’s order. See Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982) and May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982).

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I agree with appellant’s argument that the Commission’s reliance upon amended guidelines, effective after the date of the offense, in establishing a presumptive parole release date, violates the ex post facto clause of both the state and federal constitutions. In so doing, I adopt the views stated by Judge Shivers’ dissenting opinion in May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA, 1982). At the very minimum I would certify the same question certified by the majority in May as one of great public importance.


author: ERVIN, Judge.

text:
    William Eugene TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. AK-339.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.

      Michael E. Allen, Public' Defender, and Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Judge.

Appellant William Eugene Taylor was convicted and sentenced on two counts of grand theft and one count of burglary. He contests the validity of one count of grand theft, arguing that the conviction should be reduced to petit theft, or, alternatively, that it should be reversed because only one act of theft occurred. We affirm in part, holding that two acts of theft occurred, but reverse in part, because conviction on one of the grand theft charges must be reduced and reclassified to petit theft. We also remand so that the lower court may correct conflicting facial inconsistencies in two written sentencing documents.

Appellant William Eugene Taylor and Tony Bowen, an employee of M.D. Associates, drove one evening to an M.D. Associates terminal in Hamilton County. Bowen managed to break open the door to the terminal office, went inside and took a “CB” radio as well as the keys to a company beer delivery truck. Running out the office door, Bowen gave the keys to appellant, jumped into his car with the “CB”, and drove away. Appellant followed in the beer truck, containing a value of more than $16,000 of bottled beer. He drove the truck a few miles, running it into a roadside ditch. Thereafter, Bowen sold the “CB” radio for $50, and appellant received one-half of that amount as his share of the profits. Appellant was subsequently arrested and charged with grand theft of the beer truck, grand theft of the “CB”, and burglary of the M.D. Associates office.

At trial, Sandy Edwards, the manager of M.D. Associates’ Hamilton County office, offered the only testimony relating to the value of the “CB” radio. He stated that the “CB” was a Colt base-unit with 40 channels; that the unit was worth $249 when it was purchased eight months before the theft, and that he was very familiar with the unit. Defense counsel objected, contending that Edwards’ statements were improper and prejudicial, as no predicate had been presented to show that Edwards had any idea as to the fair market value of the “CB” at the time of the theft. The objection was overruled. Subsequently, on cross-examination Edwards admitted that he did not deal in used merchandise and had no idea as to the exact market value of the “CB” at the time of the theft. The appellant was found guilty, and on appeal he challenges two points relating to his conviction on two separate counts of grand theft for the beer truck and the “CB”.

Appellant argues that insufficient proof was presented to find that the “CB” was worth over $100, an element of the crime of grand theft. § 812.014(2)(b)l, Fla. Stat. This point is two-pronged. First, we must ascertain whether Edwards was competent to testify to the value of the “CB”, and second, if he was competent, was his testimony sufficient to prove that the “CB” was worth over $100? With regard to the first prong, we note that an owner is generally presumed as competent to testify to the value of his stolen property. See generally Annot., 37 A.L.R.2d 967 § 25 (1954). The apparent rationale for this rule is that an owner necessarily knows something about the quality, cost, and condition of his property. Atlantic Coast Line R. Co. v. Sandlin, 75 Fla. 539, 78 So. 667, 668 (1918).

Of course, mere ownership of property does not automatically qualify an owner to testify as to his property’s value. Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. 3d DCA 1961); 5 Ehrhardt, Florida Practice § 701.1 at 212 (1977). The witness must be shown to have personal knowledge of the property. Cf. Salvage & Surplus. Therefore, one’s competency to testify as to the value of stolen property is not so much a question of whether he owns the stolen property as it is a question of his personal knowledge of the property. If the lay witness has personal knowledge of the property, he is competent to express an opinion as to the value of his employer’s property. Baldwin Cooke Co. v. Keith Clarke, Inc., 420 F.Supp. 404 (N.D.Ill.1976).

The evidence reveals that Edwards was competent to testify to the value of the “CB”, at the time of its purchase, but not to its market value at the time of the theft. Although he had worked regularly with the unit, and as the chief management representative of M.D. Associates at the company’s Hamilton County office was in a position to be familiar with any of the company’s property at that office, he had not purchased the unit, but testified it had gone “through the company” some eight months before. Indeed, his estimate of the value of the “CB” at the time of its theft was based upon the amount placed upon the invoice records which he had later reviewed. He admitted that he had no knowledge of the value of the radio as “used equipment” at the time of taking.

The specific objection raised by defense counsel to Edwards’ testimony as to the property’s value was that no predicate had been established that the “witness had any idea as to fair market value.” This objection, unlike that raised before the trial court in Lewis v. State, 403 So.2d 568 (Fla. 1st DCA 1981), squarely placed the court below on notice that the witness’ testimony as to market value was incompetent. As such, this case falls within the ambit of the rule announced in Negron v. State, 306 So.2d 104 (Fla.1974), holding that, absent direct testimony as to the fair market value of stolen property at the time of theft, four factors should be considered by the trier of fact in determining the fair market value of stolen property at the time of theft. The factors include: (1) original market cost; (2) manner in which the item has been used; (3) its general condition and quality; and (4) its depreciation percentage. Id. at 108. Only the first factor has been established in the case at bar, which is insufficient to prove the “CB” radio’s value at the time of the theft.

Without more, this case closely resembles Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 180 (Fla.1975), in which the court found a theft victim’s testimony that a stolen stereo was purchased for $225 one year prior to the date of theft as insufficient to prove the market value at the time of theft. And see Angel v. State, 305 So.2d 283 (Fla. 1st DCA 1974), holding incompetent the testimony of a manager of a housing project from which property had been taken whose only estimate of current market value was based upon information on the face of an invoice made out more than a year before.

Because the state was unable to prove that the “CB” was worth $100 or more at the time of theft, we reverse-the conviction of grand theft of the “CB” and remand, directing the lower court to enter a judgment and sentence for petit theft. Beasley v. State, 394 So.2d 201 (Fla. 4th DCA 1981); see § 812.014(2)(c), Fla.Stat.

Appellant’s second point is that the theft of the “CB” and beer truck was one act, as opposed to two separate acts of theft, and that he could therefore only be sentenced to one charge of theft. Thomas v. State, 405 So.2d 1015 (Fla. 1st DCA 1981); Getz v. State, 428 So.2d 254 (Fla. 1st DCA 1982). We disagree. We consider the two charged offenses were sufficiently separated in time as to constitute two valid, separate offenses. As was recently explained in Castelberry v. State, 402 So.2d 1231, 1232 (Fla. 5th DCA 1981), rev. denied, 412 So.2d 470 (Fla.1982):

Whether an item is a part of one theft or robbery, or two, necessarily depends upon chronological and spatial relationships.. If a defendant thrusts a pistol into a victim’s ribs and says, “Give me your watch, your wallet, and your tie!!” and the victim complies, only one statutory violation, one robbery has been committed ....

As evident from the facts previously recited in the case at bar, the distinctions in both time and spatial relationships between the two offenses reveal two separate acts of theft. Compare Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975). Therefore, we affirm appellant’s second point.

Appellant raises a third error relative to a facial conflict between his written sentence and written probation order. The former document states that his sentence is for a term of four years on the burglary charge. The written probation order, however, refers to a five year sentence on the foregoing charge. This facial inconsistency will need to be rectified by bringing both documents into conformity with the lower court’s oral pronouncements at the time of sentencing. Byrd v. State, 388 So.2d 1362 (Fla. 5th DCA 1980).

The conviction of grand theft of the “CB” is therefore REVERSED and REMANDED with directions that the lower court enter a judgment and sentence for petit theft of the “CB”. The lower court is further directed to bring the written sentencing documents into conformity with its oral pronouncement of sentence.

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

      . In Lewis, the only objection made was that it was not shown that the custodian of certain property taken was the owner of the property, therefore, he was not qualified to testify as to the value. We held that such objection was not sufficient to preserve the point on appeal relating to insufficiency of the evidence supporting the value of the property in excess of $100 at the time of the theft.


author: MILLS, Judge. ERVIN, Judge,

text:
    Bienvenido RODRIGUEZ, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-346.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.

      Bienvenido Rodriguez, pro se, for appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Rodriguez appeals the Commission’s setting of his presumptive parole release date (PPRD). We affirm.

Rodriguez’s PPRD was computed by using matrix time ranges which came into effect after the commission of the crime but before his initial interview. His contention that this action violates the ex post facto clauses of the state and federal constitutions was addressed and rejected by this Court in Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982).

He further contends that the Commission’s failure to notify him of his PPRD within 45 days of the interview made the hearing examiner’s recommendation of a 36-month PPRD binding on the Commission. That argument has merit only where the Commission has set off indefinitely the establishment of an inmate’s PPRD for an impermissible reason, and where the Commission has not yet set a date for that inmate. Because Rodriguez was notified of his PPRD on 18 December 1981, his contention is without merit. Purnell v. Florida Parole and Probation Commission, 409 So.2d 1122 (Fla. 1st DCA 1982).

AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, J., concurs in part and dissents in part with opinion.

ERVIN, Judge,

dissenting.

I concur in the majority’s disposition of this cause on all grounds stated except that relating to the question of whether the Commission’s action violates the ex post facto clause of both the state and federal constitutions. In so doing, I adopt the views stated by Judge Shivers’ dissenting opinion in May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA, 1982). At the very minimum I would certify the same question certified by the majority in May as one of great public importance.


text:
    Rodney Harold PERRY, Appellant, v. STATE of Florida, Appellee.
    No. AP-35.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1983.

      Rodney Harold Perry, in pro. per.
    No appearance for appellee.
   PER CURIAM.

In his motion for post-conviction relief, appellant correctly alleges that he was improperly sentenced to 20 years for his conviction of attempted armed robbery. Under Florida Statutes, Sections 812.13(2)(a) and 777.04(4)(b) (1981), attempted robbery with a firearm is a second degree felony for which the maximum penalty is fifteen years in prison. Section 775.082(3)(c), Florida Statutes (1981). Section 775.087(l)(b), Florida Statutes (1981), does not apply when the use of a firearm is an essential element of the offense. Lee v. State, 400 So.2d 1238 (Fla. 1st DCA 1981). The other contentions raised by appellant in his motion are without merit and do not warrant discussion.

Accordingly, the order denying appellant's motion for post-conviction relief is REVERSED and the cause remanded for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, and Frances M. Davin, Jerry Bowmer, Fred Anderson, Jan Platt and Joe Kotvas, constituting the Board of County Commissioners of Hillsborough County, Petitioners, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Respondent.
    No. 83-104.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1983.

      Emeline C. Acton, Asst. County Atty., Tampa, for petitioners.
    Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for respondent.
   PER CURIAM.

Hillsborough County petitions for common law certiorari to review the order below denying petitioner’s motion for protective order. The motion sought to prevent the taking of the depositions of the individual Hillsborough County commissioners.

Petitioner asserts that because under the rationale of Reedy Creek Utilities Co. v. Florida Public Service Commission, 418 So.2d 249 (Fla.1982), it will ultimately prevail on the merits, the depositions are unnecessary. Petitioner also asserts that the motive and reasoning of an individual commissioner in voting is irrelevant and therefore discovery into motive is improper. Manatee County v. Estech General Chemicals Corp., 402 So.2d 75 (Fla.2d DCA 1981).

We assert no opinion as to the ultimate merits of the case. We do note, however, that the motive and reasoning of the county commissioners in casting their votes is irrelevant absent a claim of fraud. Manatee County v. Estech General Chemicals Corp. In the case sub judice, the petitioner does not allege that the sole purpose for the deposition is to examine the motive or reasoning of the individual commissioners. Therefore, discovery may proceed as scheduled as to relevant facts which cannot be ascertained by a reading of the minutes of the county commission meetings, subject to Florida Rule of Civil Procedure 1.280.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: HOBSON, Judge.

text:
    Samuel S.J. ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 81-2271.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Samuel Alexander appeals an order of the trial court assessing him with court costs and retaining jurisdiction over the first third of his sentence. We strike the portion requiring that he pay costs and also strike other portions requiring that he pay a fine, restitution and medical bills as conditions of any future parole. In all other respects we affirm.

At the sentencing hearing the trial court adjudicated appellant guilty of attempted second degree murder with a deadly weapon and sentenced him to 15 years imprisonment. It retained jurisdiction over the first third of the sentence without stating any reasons for doing so. It then pronounced:

I am also imposing a $1000 fine plus $80 in Court costs to be paid within the first five years of your incarceration or as a condition of any parole that you might receive .... I am also going to order that you make restitution to the doctors and the hospital ... and I am going to order that that be paid within 15 years or as a condition of any parole that you might receive.

The court’s final written order totally conformed to its pronouncements at the hearing.

Appellant argues first that we should strike the court costs. Prior to trial, the court adjudged him “partially insolvent,” not “insolvent,” and appointed the public defender to represent him. Section 939.15, Florida Statutes (1981), provides that the county in which the crime was committed shall pay the defendant’s costs if he has been adjudged “insolvent.” We deem it proper in this particular case to strike the costs pursuant to section 939.15.

Appellant contends next that we should vacate the retention of jurisdiction and remand with directions that the court satisfy the individual particularity requirement of section 947.16(3)(a), Florida Statutes (1981). A court’s failure to satisfy this individual particularity requirement is a procedural error. Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981); Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981). Appellant did not object when this error occurred. Hence, he cannot raise this issue on appeal. Canty; cf. Williams v. State, 414 So.2d 509 (Fla.1982).

In reviewing the sentencing order we could not help but observe that portions of the order required that appellant pay the fine, costs, restitution and medical bills either during incarceration or as conditions of parole. While a court is not precluded from recommending conditions of parole, Owens v. State, 308 So.2d 171 (Fla. 1st DCA 1975), the Parole and Probation Commission is solely vested with the power to establish conditions of parole. § 947.13(1)(b), Fla. Stat. (1981). In our view, these portions of the order here amounted to an improper establishment of conditions of parole.

Accordingly, we affirm the final order of conviction and sentence but remand with directions that the court strike the portion of the order requiring that appellant pay costs and strike the portions requiring that he pay the fine, restitution and medical bills as conditions of parole.

AFFIRMED and REMANDED with directions.

OTT, C.J., and CAMPBELL, J., concur.

      . We note that the court adjudged appellant “insolvent” for purposes of appeal.


author: OTT, Chief Judge.

text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant, v. RYDER TRUCK RENTAL, INC., a corporation, Appellee.
    No. 82-652.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.
    Thomas J. Sherwood and Gary W. Nicholson of Carson & Guemmer, Tampa, for appellant.
    Eurich Z. Griffin of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.
   OTT, Chief Judge.

The trial court entered a final judgment dismissing appellant’s complaint for contribution from appellee, the insurer of a joint tortfeasor. In doing so, the trial court relied upon this court’s decision in Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976). For the reasons hereafter stated, we reverse. Hester is, we believe, a sound and accurate decision, but it did not address or dispose of the question involved in this action.

At issue here and in Hester is the right of contribution between joint tortfeasors under the Florida “Uniform Contribution Among Tortfeasors Act” — specifically under sections 768.31(2)(d) and 768.31(5), Florida Statutes (1982).

The facts of this case insofar ás necessary to the decision are as follows. Appellee insured the owner and operator of a vehicle in which the claimant (injured party) was a passenger. Appellant insured the owner and operator of another vehicle proceeding in the same direction and directly behind appellee’s vehicle. Both vehicles were alleged to have been negligently operated by their respective operators and their separate negligence combined to produce the injuries to the claimant.

The claimant brought liability and PIP claims against appellant’s insured for his injuries and damages. The appellant negotiated and completed a settlement thereof with the claimant, taking a release from the claimant by which the claimant specifically (by name) released and discharged appellant (and its insureds) and appellee (and its insureds) from any and all further liability or claims. Appellant promptly notified ap-pellee of the settlement and its claim to a pro rata contribution from appellee. When appellee declined to contribute, this suit was brought.

The facts in Hester were as follows. There were four vehicles involved, all proceeding in line in the same direction. The claimant was operating the second vehicle in this line of four and was stopping or stopped behind the first vehicle, which was slowing or stopped preparatory to making a left turn. Vehicle 3 rear-ended the claimant’s vehicle (vehicle 2), knocking it into vehicle 1. Vehicle 4 then rear-ended vehicle 3, knocking it again into vehicles 2 and 1. The claimant (vehicle 2) first sued the owners/operators/insurers of vehicles 3 and 4 for his personal injuries and settled with them for a total payment of $6,500. The release he gave to the owners/operators/insurers of vehicles 3 and 4 released them (by name) and “any and all other persons and/or corporations who are or may be liable for injuries or damages sustained as a result of the subject accident .... ”

Thereafter, the claimant (vehicle 2) brought a separate suit against the owner/operator/insurer of vehicle 1, who: (1) asserted (as an affirmative defense) that the above-referenced release barred the claimant’s suit or claim for damages against them; and (2) filed a third-party complaint against the owners/operators/insurers of vehicles 3 and 4 for pro rata contribution (at least as to any amount above that previously paid) to any judgment or damages the claimant might recover.

This court simply held, in Hester, that the above-quoted language of the release did, in fact, extend to the owner/operator/insurer of vehicle 1 (primary defendants in Hester), although not specifically named therein, pursuant to section 768.31(5), Florida Statutes. This court then logically and correctly concluded that this result required the dismissal of both the claimant’s suit for damages AND the third-party complaint for contribution. Hester did not involve, decide, or address the question of the right of the owners/operators/insurers of vehicles 3 and 4 to contribution from the owner/operator/insurer of vehicle 1 under the provisions of section 768.31(2)(d). That is the precise question in this case.

It is perhaps fundamental but we find it necessary to point out that since there was no right of contribution between joint tort-feasors at common law, appellant had no right of contribution from appellee apart from that provided by section 768.31 with conditions therein. See Woods v. Withrow, 413 So.2d 1179 (Fla.1982).

Again, while somewhat fundamental, we point out that the claimant who executes the release is the only party who has both been paid a consideration and released someone (either the paying party only or other possible responsible parties) from further liability. The rights between the tort-feasors as to contribution still remain open. Their respective rights are dependent on section 768.31 and who the claimant has actually released or exonerated from further liability to him.

On securing the extinguishment of the claimant’s right to any damages or compensation from the appellee, appellant acquired the right of pro rata contribution by appel-lee.

We therefore REVERSE the judgment of dismissal and REMAND for further proceedings consistent herewith.

SCHEB and DANAHY, JJ., concur.

      . 768.31 Contribution Among Tortfeasors.
      (2) Right to contribution.—
      (d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.
      (5) Release or covenant not to sue. — When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
      (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
      (b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.


author: LEHAN, Judge.

text:
    Thomas Dominic SPAZIANO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1270.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Thomas Dominic Spaziano brings this appeal from a conviction and sentence for attempted first-degree murder following the trial court’s denial of his motion for judgment of acquittal and a jury verdict of guilty. He contends that there was a lack of sufficient evidence that he acted pursuant to a premeditated design when he shot the victim. We disagree, however, and affirm.

In our judgment there was sufficient evidence from which the jury could have found premeditation. The state presented evidence of the defendant having pointed a gun at the intended victim’s head and thereby forcing the victim out of a car for the purpose of robbery, as well as testimony that defendant continued to point the gun at the victim while forcing the victim to empty his pockets, continued brandishment by defendant of the gun and pointing it at the victim’s head while forcing the victim to drive elsewhere for the purpose of getting more of the victim’s money. Furthermore, defendant fired six shots into the victim’s hip, chest, stomach, elbow, and shoulder when the victim slammed on brakes, and swerved the car over a median strip and grabbed for appellant’s gun. Also, there was evidence that the shots formed a pattern in the victim’s body beginning at the victim’s hip and thereafter moving up.

[W]hen Appellant moved for an acquittal, he admitted the facts adduced in evidence and every conclusion favorable to the Ap-pellee which is fairly and reasonably in-ferable therefrom .... [Pjremeditation may be established by circumstantial evidence ....

Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975).

There was evidence that the shooting, consisting of shots fired rapidly after the victim had grabbed for the gun, had occurred immediately after the victim braked and swerved the car near a police station.

We recognize that a sudden, impulsive act may be committed under circumstances showing lack of premeditation. But we cannot say, with all inferences taken against defendant, that the evidence considered by the jury was consistent with “any reasonable exculpatory hypothesis as to the existence of premeditation” as in Hall v. State, 403 So.2d 1319 (Fla.1981).

Accordingly, we affirm the judgment and sentence of attempted first degree murder.

AFFIRMED.

GRIMES, A.C.J., and SCHEB, J., concur.


text:
    Katherine McGINN, Appellant, v. Raymond J. McGINN, Appellee.
    No. 82-1308.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.
    R. Earl Warren of R. Earl Warren, P.A., Englewood, for appellant.
    Steven W. MaCris of Snyder, MaCris & Dean, Venice, for appellee.
   LEHAN, Judge.

In this divorce action, the wife appeals an order of the trial court which interpreted a provision of the amended final judgment of dissolution as requiring her to convey certain property to the husband and which denied the wife’s motion for contempt for the husband’s failure to convey that same property to her.

As to the wife’s argument that the trial judge erred in construing the amended final judgment, we find that the contested portion of the judgment was ambiguous and that the judge correctly resorted to the record in the case to resolve that ambiguity. Boynton v. Canal Authority, 311 So.2d 412 (Fla. 1st DCA 1975). The record contained sufficient evidence, including the property settlement agreement stipulated to by the parties, to support the judge’s interpretation.

The wife also argues that the trial judge erred in refusing to accept evidence before ruling on her motion for contempt for the husband’s failure to convey the disputed property to her. Because we find that the judge correctly construed the amended final judgment as requiring the wife to convey the property to the husband, we also find that the wife’s motion became moot and was properly denied without an evidentiary hearing.

We have carefully considered the briefs and the record, and we find no merit in appellant’s remaining contentions.

AFFIRMED.

HOBSON, A.C.J., and GRIMES, J., concur.


author: GRIMES, Judge.

text:
    Betty S. POQUETTE (Goode), Appellant, v. Harold POQUETTE, Appellee.
    No. 82-1762.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.
    F.M. Wells, Jr., St. Petersburg, for appellant.
    Stephen D. Hughes, Largo, for appellee.
   GRIMES, Judge.

The wife appeals from a nonfinal order granting a motion for relief filed pursuant to Florida Rule of Civil Procedure 1.540(b)(3).

The marriage of the parties was dissolved in 1978. The court awarded custody of their child to the wife and directed the husband to pay child support. In September of 1981, the wife filed a petition to increase the child support and furnished a financial affidavit in support of her petition. The wife was deposed on October 7, 1981. A hearing on the petition was held on December 10, 1981. Judge Swanson entered an order on December 16, 1981, which modified the judgment by granting an increase in child support.

The husband later learned that on the date the order of modification was entered, the wife applied for a license to marry another man, and she remarried on January 1, 1982. Thereupon, the husband moved to set aside the modification order. He claimed that the wife had fraudulently misrepresented her anticipated expenses on the financial affidavit by not disclosing the reduction which would come about as a result of her impending marriage. Following a hearing, Judge Sanderlin ordered that the husband was entitled to a rehearing on the wife’s petition for modification. We reverse.

The predicate for relief was fraud. Yet, even the trial judge declined to characterize the wife’s actions as fraudulent. He based his ruling upon the conviction that the forthcoming marriage was a factor which should have been considered at the hearing. See Birge v. Simpson, 280 So.2d 482 (Fla. 3d DCA 1973). Be that as it may, this was not a basis upon which relief from a final judgment could be granted under Florida Rule of Civil Procedure 1.540.

Clearly, the wife’s conduct was not fraudulent. The financial affidavit necessarily reflected her income and expenses as of the date she signed it. Even though the wife had stated on deposition that she had been seeing the man she ultimately married, she was never asked any questions at the final hearing concerning her intentions with respect to remarriage. Moreover, a court should base its determination of child support on existing facts rather than circumstances which might come about in the future.

Accordingly, we reverse the order granting the husband’s motion for relief from the final judgment. Our ruling does not preclude the husband from filing a petition for modification bottomed on changed circumstances occurring after December 16, 1981.

OTT, C.J., and BOARDMAN, J., concur.


text:
    Ricky RATUSHINAK, Appellant, v. The STATE of Florida, Appellee.
    No. 82-338.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Bennett H. Brummer, Public Defender and Beth Weitzner, Asst. Public Defender and Nancy Denaro, Certified Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

As a juvenile bindover to the adult division, the defendant entered into a plea bargain on a charge of attempted first degree murder pursuant to which he was sentenced to four years in the state penitentiary followed by two years in a community control program. In addition, the court specifically retained jurisdiction over one-third of the defendant’s youthful offender sentence. The defendant has appealed his sentence contending that: (a) .he was entitled to credit for time served between his arrest and transfer to circuit court, and for time served in the juvenile detention center while awaiting trial; and (b) the trial judge erred in retaining jurisdiction over one-third of his sentence. We affirm.

We decline to reach the issue of credit for time served because it appears on the record that the defendant’s guilty plea was entered with knowledge of the sentence which the judge would impose. As to the second point, however, we find that the court verbally indicated that it would retain jurisdiction for one year, not one-third (two years) of the sentence. It may be, therefore, that the guilty plea was entered as a ■result of confusion. For this reason, the sentence is affirmed without prejudice to the defendant filing a motion pursuant to Florida Rule of Criminal Procedure 3.850 to withdraw his guilty plea.

Affirmed.


text:
    HIALEAH HOSPITAL, INC., Appellant, v. Luis A. RAVENTOS and Ismael Hernandez, Appellees.
    Nos. 82-581, 82-986.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Barranco & Kellough and Steven Kel-lough and Peter H. Kircher, Miami, for appellant.
    Spencer, Hass-Perlman, Hoffmann & Bloom, Coral Gables, and Henry J. Hunne-feld, Smith & Mandler and Mitchell W. Mandler, Miami, for appellees.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Hialeah Hospital, Inc. sued Clinicas Pasteur, Inc., a Florida corporation, and the clinic’s principals, Raventos and Hernandez, to collect a debt due it for services rendered to Clinicas. Hialeah’s complaint alleged that Raventos and Hernandez were liable to it based on an agreement between these individuals, which provided, inter alia, (1) that two of the three medical facilities under the clinic’s corporate aegis (Hialeah and Miami Beach) would thereafter be owned and operated by Hernandez, and the third (Northwest) by Raventos, and (2) that

“Hernandez . .. shall assume all liabilities and receive all assets that have been incurred or created prior to said date with the exception that Raventos ... shall assume and be responsible for all hospital bills and payment due doctors and professional persons due and owing for the Northwest members whenever they have been incurred.”

Significantly, the agreement goes on to mention Hialeah Hospital, Inc. as an entity to which hospital bills are due and owing.

The trial court dismissed, with prejudice, the action against Raventos and Hernandez, and these appeals, consolidated by us, ensued. We reverse.

It is clear that “one for whose benefit a contract is made, although not a party to the agreement and not furnishing the consideration therefor, may maintain an action against the promisor.” Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 822-23, 184 So. 852, 856 (1938); American Surety Co. of New York v. Smith, 100 Fla. 1012, 130 So. 440 (Fla.1930); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909). Accord, Restatement (Second) of Contracts § 304. While it is far from certain that Raventos and Hernandez intended that Hialeah Hospital be a beneficiary of their agreement inter se, we are unable at this stage of the pleadings to draw the contrary conclusion that the agreement was designed solely for the benefit of Raventos and Hernandez, and that, therefore, Hialeah Hospital, Inc. was a mere incidental beneficiary. See, e.g., Muravchick v. United Bonding Insurance Company, 242 So.2d 179 (Fla. 3d DCA 1970). Since “[wjhere a contract creates a right or imposes a duty in favor of a third person, the law presumes that the parties intended to confer a benefit on him and furnishes him a remedy,” Auto Mutual Indemnity Co. v. Shaw, 134 Fla. at 823, 185 So. at 856, the complaint and the agreement attached thereto, aided by this as yet, unrebutted presumption, states a cause of action against Raventos and Hernandez sufficient to withstand a motion to dismiss.

Reversed and remanded for further proceedings.


text:
    Margie A. MENTELOS, Appellant/Cross-Appellee, v. Robert W. MENTELOS, Appellee/Cross-Appellant.
    Nos. 82-233, 82-697.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1983.
    Gaston Snow & Ely Bartlett, Hall & Swann, Coral Gables, for appellant/cross-appellee.
    Maurice Jay Kutner, Miami, for appel-lee/cross-appellant.

      Before HUBBART, BASKIN and FERGUSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We set aside the previous affirmance entered without an opinion dated December 14, 1982, and substitute the following af-firmance with opinion.

This appeal is taken from a final judgment dissolving a sixteen-year marriage of the parties. Appellant wife contends by this appeal: (1) the trial court committed reversible error when it failed to award the wife any lump-sum alimony in the form of an equitable distribution in the marital assets which were acquired during the sixteen-year marriage, except for one minimum building lot and the marital residence located thereon, (2) the trial court committed reversible error when it awarded the husband a one-half interest in the furniture and fixtures located in the marital residence when the husband had not pled, prayed for, or offered any proof concerning his need for the same, (3) the trial court committed reversible error in awarding the wife rehabilitative alimony of only $650 for only one year and in denying her permanent periodic alimony, (4) the trial court committed reversible error in denying the wife’s claim for special equity in the marital assets.

Having reviewed the record we are not persuaded that the trial court abused its discretion in adjudicating property rights or awarding fees. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


text:
    Sidney DOBBS, Appellant, v. Augusta Marie DOBLITZ, Individually and as Personal Representative, and Mark Davis, Appellees.
    No. 81-1922.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 1983.
    Richard A. Goetz of Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauder-dale, for appellant.
    Michael Paul Shienvold of Zwick & Shien-vold, Hollywood, for appellees.
   PER CURIAM.

The. trial court granted summary judgment in a will contest which involved allegations of undue influence and lack of testamentary capacity. Without detailing all of the conflicting evidence, it suffices to say that the summary judgment was improper. “It is axiomatic that summary judgment may not be used as a substitute for trial and that if the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered.” Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448, 449 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976).

REVERSED and REMANDED.

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: GLICKSTEIN, Judge.

text:
    William McMURRAY and Shirley D. McMurray, et al., Appellants, v. U-HAUL COMPANY, INC., Appellee.
    No. 81-2208.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 1983.
    James A. Bonfiglio, West Palm Beach, for appellants.
    Lawrence J. Forno, Pompano Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an order dismissing appellant’s counterclaim with prejudice. We affirm in part; reverse in part and remand.

Appellee is a judgment creditor, having recovered a judgment against appellant, William McMurray, Jr., in the sum of $118,545.24 in Broward County; but it has been frustrated in collection thereon. It brought an eight count complaint against the judgment debtor — its long-time president — and his wife, seeking a variety of avenues of relief. Appellants filed a three count counterclaim, alleging in one count what it claimed to be abuse of process, and in the others, slander of title of real and personal property. The trial court first entered an order, dismissing the counterclaim without prejudice and giving appellants ten days in which to amend. When appellants failed to amend, the trial court then entered, without notice, the order being appealed. The failure to provide appellants notice was error. Florida Rule of Civil Procedure 1.420(b) provides in part:

Any party may move for dismissal of an action or of any claim against him for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under Rule 1.090(d).

See also Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA 1982). The real question, however, is whether it was substantial error which requires reversal; and we conclude that it was — but only in part.

First, as to the allegations of abuse of process, the error was procedurally incorrect; but we need not reverse. None of appellants’ allegations constituted the captioned tort. In essence, they alleged that appellee’s complaint had been filed and summons issued for a multitude of improper purposes — to bankrupt Mr. McMurray; to coerce him to pay monies to appellee which are legally beyond the latter’s reach; to coerce settlement of his debt to appellee; to coerce concessions from him and appel-lee’s competitor, Jartran, Inc.; to bankrupt Jartran, Inc.; and to “get back at him” for leaving appellee’s employment. As we discuss hereinafter, this parade of horribles may well sustain an ultimate action against appellee for malicious prosecution should it not prevail on its complaint against appellants. However, all appellee has done is file a complaint and have process served upon appellee. Abuse of process in this case required more; namely, an act which constituted misuse of the process after it was issued. There is no such allegation of a post-issuance act other than service of what was issued. In 1 Am.Jur.2d Abuse of Process § 2 at 250 (1962), the test applicable to this case is described without semantic vagueness:

An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued.

(Footnote omitted.)

Blue v. Weinstein, 381 So.2d 308,310 (Fla. 3d DCA 1980), is equally authoritative and factually similar. In describing the cause of action as consisting of the “willful or intentional misuse of process,” id. at 310, the court further said:

Our review of the counterclaim herein convinces us that the plaintiffs are entirely right in their contention that this counterclaim fails to state a cause of action for the tort of abuse of process. Indeed, it is little more than a repeat of the allegations in the counterclaim charging malicious prosecution which was properly dismissed by the trial court. The only change is that the defendants now allege that the process was employed unlawfully because it was allegedly used as a means of forcing the defendants to accede to the allegations and demands of the plaintiffs as contained in counts I through IV of their third amended complaint. Even if true, such allegations do not constitute the tort of abuse of process as the gravaman of the action is, in our view, still directed against portions of an alleged baseless complaint and is fundamentally unrelated to the process served thereunder; indeed, no abuse of the process apart from the complaint is pled and the effort to do so amounts to nothing more than a thinly disguised malicious prosecution claim. See Prosser on Torts 856-858 (4th ed. 1971); 1 Harper & James, The Law of Torts 330-332 (1956).

Id. at 311. What appellants have done here is what was done in Blue; namely, alleging a thinly disguised claim for malicious prosecution. Further, they failed to amend their counterclaim when given the opportunity to do so. Thus, there is no reason to believe that any post-service misuse of process affected their persons or property and no reason to give them further opportunity to amend. Therefore we affirm the order as to the claim of abuse of process because a reversal would not achieve anything.

The same is true as to the two remaining counts which allege slander of title by the filing of the complaint. We earlier held in Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981), that the filing of a notice of lis pendens enjoyed the same privilege as the filing of the complaint which spawned it. The same analysis would apply here, giving unto appellee’s complaint the cloak of privilege which pleadings enjoy. Reversing the trial court's order would accomplish nothing; and as appellants failed to amend, we see no reason to give them that opportunity now. However, there is a limit to the benefits of the foregoing privilege. First, section 57.105, Florida Statutes (1981), subjects a frivolous action to statutory sanction. Second, Florida Bar Integration Rule, article XI, rule 11.14(9) provides:

Nothing in this Rule shall be construed to discourage or to restrict the right and responsibility of any judge to call to the attention of The Florida Bar the conduct of any member thereof which, in the opinion of the judge, warrants investigation by The Florida Bar to determine if there has been a violation of the Code of Professional Responsibility or if an unprofessional act has occurred.

Third, the trial court can immediately discharge a notice of lis pendens; and if it fails to do so, the property owner may seek certiorari. See Cooper Village, Inc. v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980). Fourth, most important to the present case, we did not, by our decision in Procacci, eliminate any of the foregoing remedies, nor did we by that decision or the present one:

insulate a person who maliciously institutes a wrongful judicial proceeding from all liability for his malicious acts.

Stewart v. Fahey, 14 Ariz.App. 149, 151, 481 P.2d 519, 521 (1971). The error of the trial court which compels reversal in part here is the dismissal with prejudice of appellant’s thinly disguised allegations of malicious prosecution. Such cause of action will not accrue until the ultimate disposition of ap-pellee’s complaint; and on remand the trial court is directed to condition dismissal by not so precluding such future action by appellants.

DELL and WALDEN, JJ., concur.

      . See Farmers Gin Co. v. Ward, 73 N.M. 405, 406, 389 P.2d 9, 11 (1964), which held:
      An abuse of process arises only when there has been a perversion of court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do. Altenhaus v. Louison, 342 Mass. 773, 172 N.E.2d 230; Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613; Geier v. Jordan, D.C.Mun.App., 107 A.2d 440; Hall v. Field Enterprises, D.C.Mun.App., 94 A.2d 479; Pimentel v. Houk, 101 Cal.App.2d 884, 226 P.2d 739; Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884; Italian Star Line v. United States Shipping Board E.F. Corp. (CCA 2nd Cir.), 53 F.2d 359; annotations 80 A.L.R., pages 580-584.
      In order to sustain an action for abuse of process two elements are essential, (1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge. Ulterior motive alone is insufficient; there is no abuse of process where it is confined to its regular and legitimate function in relation to the cause of action stated in the complaint. Hall v. Hollywood Credit Clothing Company, D.C.Mun.App., 147 A.2d 866; Earl v. Winne, 34 N.J.Super. 605, 112 A.2d 791; Geier v. Jordan, supra; Pimentel v. Houk, supra; Brown v. Robertson, 120 Ind. App. 434, 92 N.E.2d 856; Elliott v. Warwick Stores, 329 Mass. 406, 108 N.E.2d 681; Saliem v. Glovsky, 132 Me. 402, 172 A. 4; 1 Am.Jur.2d Abuse of Process, §§ 4, 13; Pros-ser on Torts, pages 894-895; Cooley on Torts, 4th Ed., § 131, page 434.
      Also, see the scholarly opinion and collection of authorities in Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613 (1957), which discuss the subsequent misuse or perversion of duly issued process; as well as Landers v. Georgia Public Service Commission, 217 Ga. 804, 125 S.E.2d 495 (1962). We cautiously add that by this opinion we do not eliminate the applicability of the tort to the issuance of process in other situations, such as bringing a second action to collect a debt already paid or use of criminal process to coerce payment of a civil debt or the return of property. Bradley v. Peaden, 347 So.2d 455 (Fla. 1st DCA 1977). Those situations are different in kind from the present case.

      . Section 57.105 provides:
      Attorney’s fee. — The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Thomas MELTON, Jr., et al., Appellants, v. William S. BARNES, Presiding Bishop, John Forte, District Elder, and Lula Mae Bluntson, et al., Appellees.
    No. 81-2217.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 1983.
    Irwin L. Langbein, West Palm Beach, for appellants.
    William M. Holland of Holland & Smith, West Palm Beach, for appellees.
   PER CURIAM.

The action below arose out of a dispute between two factions of a local church. Because we perceive an error which arose early in the proceedings as permeating the end result, we do not reach the merits of the ultimate determination in the form of a summary final judgment.

The trial court appointed a special master to conduct an election to determine whether a majority of the members of the local church wished to remain affiliated with the national church body. The order of appointment also specified that “Electors shall be members of CHRIST TEMPLE in good standing as of April 1, 1977, who have not since left the congregation or joined another congregation or church.” A majority of the local congregation had been denied access to the church building and therefore were meeting at another location at the time the conflict erupted into litigation. The special master, presumably because of his understanding of the instruction as to who should be “electors” systematically excluded those members who were no longer attending services in the church building proper. This, of course, frustrated the entire purpose of the election and rendered its result meaningless and therefore invalid.

The report of the special master, infected with egregious error, was accepted and approved by the trial court. We are satisfied that it should have been rejected. See Sitomer v. Sitomer, 397 So.2d 373 (Fla. 4th DCA 1981).

We are not, at this juncture, required to decide whether the local church is of a congregational rather than a republican nature, which determination may dictate the disposition to be made of the real property belonging to the local church. See, e.g., St. John’s Presbytery v. Central Presbyterian Church of St. Petersburg, 102 So.2d 714 (Fla.1958). However, the record discloses that the trial court apparently made a finding, not appealed here, that the church is in the nature of a congregational organization which finding may be binding on the parties in subsequent proceedings.

In view of our finding that the election was flawed, we reverse and remand with instructions to conduct a new election under appropriate guidelines.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HERSEY and WALDEN, JJ., concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

In my view the main issue to be decided upon remand is whether the local congregation, the majority of whom wish to break away from the national church, is entitled to the church property, or whether the national church, and hence the minority that wishes to maintain its allegiance to the national church, is entitled to such property. Although the trial court expressed a preliminary view on this issue, its subsequent action in approving the special master’s report was not consistent with this view and the issue remains judicially unresolved.


text:
    FEDERATED DEPARTMENT STORES, INC., Petitioner, v. PAVARINI CONSTRUCTION CO., INC., and Howard P. Foley Company, Respondents.
    No. 82-1100.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 1983.
    Roland C. Goss of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for petitioner.
    Richard C. Milstein of August, Pohlig & Milstein, P.A., Coral Gables, for respondent — Pavarini Construction Co., Inc.
    Robert J. Asti of Arky, Freed, Stearns, Watson & Greer, P.A., Tampa, for respondent — Howard P. Foley Co.
   PER CURIAM.

By petition for writ of common law cer-tiorari Federated Department Stores, Inc., seeks review of two orders of the circuit court staying a trial court proceeding for interpleader and granting respondents’ motions to compel arbitration.

We have considered all of petitioner’s contentions pointing to alleged error in the trial court’s rulings and find no reason to quash the orders in question. Accordingly, we would simply deny the petition except that we deem it appropriate to comment upon the question of which tribunal should determine whether the right to arbitration has been waived.

Numerous cases can be cited wherein the circuit court has determined whether the right to arbitration has been waived and those decisions have been reviewed without any comment indicating the question might be one for the arbitrators. However, that very question was raised in Public Health, etc. v. M.R. Harrison Const., 415 So.2d 756 (Fla. 3d DCA 1982), and the court held the question whether arbitration has been waived was one for arbitrators to decide rather than the court. The opinion points out that the question can be decided by a court if no issue is made with regard thereto. But when issue is drawn over which tribunal should decide the question the nod should be given to the arbitrators. We believe the Public Health case is well reasoned and opt to follow it. Nor are we concerned with the ostensible conflict with our decision in Wm. Passalacqua Bldrs. v. Mayfair House Ass’n, 395 So.2d 1171 (Fla. 4th DCA 1981), wherein the opinion states that a motion to compel arbitration requires a judicial determination of, among other things, the question whether arbitration has been waived. We would simply modify that statement as follows: the question whether arbitration has been waived may be decided by a court unless one of the parties contends the waiver question should be answered by the arbitrators in which case it should be answered by the arbitrators.

In view of the foregoing we deny the petition for writ of certiorari with the understanding that the question of waiver of the right to arbitrate shall be resolved in the arbitration proceeding.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: OTT, Chief Judge. DANAHY, Judge,

text:
    MORTON F. PLANT HOSPITAL ASSOCIATION, INC., Appellant, v. Lavon McDANIEL and Camile McDaniel Kimball, Appellees.
    No. 80-1990.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.

      John R. Fricker of Boyer & Fricker, and James E. Byrne of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clearwater, for appellant.
    Wayne T. Phillips of Phillips, McFarland, Gould, Wilhelm & Wagstaff, P.A., Clear-water, for appellees.
   OTT, Chief Judge.

We reverse the final order which dismissed Morton F. Plant Hospital Association, Inc.’s complaint against Lavon McDaniel.

Morton F. Plant Hospital initiated this action against McDaniel, the noncustodial father, for services rendered his minor child. McDaniel moved to dismiss the complaint alleging that he had never agreed with the hospital to pay for these services, and that under a settlement agreement with the mother, approved in a foreign divorce action, he could not be held liable for such charges. The motion was granted and the trial court held that a noncustodial parent’s “general obligation of support” is not sufficient to justify a third party in maintaining an action directly against the noncustodial parent for medical expenses incurred on behalf of the party’s children.

Initially, we feel a reversal is mandated because the motion to dismiss was granted prematurely and without basis on the meager record before it. The motion was unverified. In addition, the trial judge did not have copies of the foreign divorce decree and property settlement before him. Thus, the trial judge was not fully apprised of the parents’ responsibilities and obligations pursuant to the agreement or judgment. We feel it would be more prudent to let the case progress through pleadings and discovery, if not a full evidentiary hearing. Perhaps somewhere on down the line the action might become susceptible to summary disposition.

While we have disposed of this appeal on procedural grounds, we find some comment warranted on the underlying substantive question. We harbor serious reservations concerning the trial judge’s blanket finding that a noncustodial parent can never be sued by a third party. We now recognize that both parents, rather than just the father, are obligated to support their children consistent with their financial circumstances and the child’s requirements. Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973); § 61.001, et seq., Fla.Stat. (1981); § 744.-301, Fla.Stat. (1981). Further, we note that in Variety Children’s Hospital, Inc. v. Jean Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980), the third district held this duty of support was visited upon both parents and that a third-party hospital supplying hospital services could bring a cause of action based upon quasi-contract against either parent — at least under the facts of that case.

We recoil from forever limiting parental liability to third parties for a child’s medical care to what the parents contract, or a court finds, under the circumstances upon divorce. Consideration of the child’s needs and best interest is still paramount. This together with the comparative circumstances of the parties, the facts surrounding the child’s hospital admission, etc., may justify a third-party action. At the same time, we recognize that without substantial changes or equitable consideration there should not be any open right of the third party to look to a noncustodial parent whose support obligation has been considered and determined by a court of competent jurisdiction and with whom the third party has no connection. Each case will have to stand on its peculiar facts.

REVERSED and REMANDED for further proceedings consistent with this opinion.

HOBSON, J., concurs.

DANAHY, J., concurs specially with opinion.

DANAHY, Judge,

concurring specially.

I agree with the result but not the rationale of the majority. Rather than reversing on the basis that summary dismissal was inappropriate as a procedural matter because the foreign divorce decree and other facj,s and circumstances were not before the trial court, I would address the question posed by the complaint and its dismissal: Whether Morton F. Plant Hospital Association, Inc.’s complaint against McDaniel is subject to dismissal solely on the basis that McDaniel was obligated to pay child support under the foreign divorce decree. I would hold that it is not. In my view, the terms of the divorce decree are not relevant to the question whether the action is sustainable. The other facts and circumstances mentioned by the majority are relevant only to matters which McDaniel should raise by way of defense or denial.

Under Florida law, either or both parents of a minor child have a duty to provide reasonable and necessary medical attention for that child. Variety Children’s Hospital v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980). There is no legal basis for the conclusion that an award of child support against the noncustodial parent in a divorce action terminates that obligation as far as the child is concerned.

The Court of Appeals of Kentucky expressed well the legal aspects of this situation in Parks v. Parks, 209 Ky. 127, 272 S.W. 419 (1925):

Infant children are neither parties nor privies nor the subject of barter. Their custody is not awarded the mother as a consideration, but because it is to their interest that this be done. Acceptance of their custody under such decree makes her primarily liable for their support and maintenance, but it does not absolve the father from his parental obligations. It cannot be doubted that, if under such circumstances the mother was unable to support the child, and necessaries were furnished to it by a third person, the husband would be reasonably liable therefor.
For instance, in dangerous illness, if the mother could not pay its necessary physician or hospital bills, can it be doubted that the father would be liable therefor?

Accord, County of York v. Johnson, 206 Neb. 200, 292 N.W.2d 31 (1980); Lawrence v. Cox, 464 S.W.2d 674 (Tex.Civ.App.1971); Smith v. Smith, 136 Ga. 531, 71 S.E. 869 (1911).

In short, I would reverse on the basis that Morton F. Plant Hospital Association, Inc.’s complaint sets forth a cause of action under Florida law. McDaniel may, of course, contest the question whether the services rendered by Morton F. Plant Hospital were in fact reasonable and necessary, and assert any defenses available to him.

      . We note that both parents of minor children are equally responsible for the support of their children unless or until a divorce court determines that some other share should be imposed on the father or mother. The parents are then bound by that determination until one of them can show a change of circumstances sufficient to justify a modification of the support arrangement. See Hughes v. Hughes, 11 Wash.App. 454, 524 P.2d 472, 474 (1974).


text:
    Gary Leroy TUCKER, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-62, 82-63.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Appellant pleaded guilty to and was convicted of first degree murder, attempted first degree murder, and sexual battery.

Appellant raised two arguments on appeal. We find merit only in his contention that the written sentences should be corrected to show authorized sentences on the attempted murder and sexual battery convictions and to conform with the sentences orally imposed below.

At the plea hearing, appellant appeared with counsel. The record indicates that pri- or plea negotiations between the state and appellant were accepted by the trial judge. The plea negotiations called for appellant to receive for the murder conviction life in prison, with a minimum mandatory sentence of twenty-five years, and for the attempted murder and sexual battery convictions life sentences. The record indicates that the judge acknowledged that all the above sentences and any sentence appellant would receive for violating parole were to run concurrently with one another.

However, as to the attempted murder and sexual battery offenses, appellant’s written sentences stated that appellant was to receive life with a twenty-five year minimum mandatory provision added. Additionally, none of the sentences indicated that they were to run concurrently with one another and with any sentence appellant would receive for violating his parole.

The sentences should be corrected.

First, Florida Statutes do not authorize such minimum mandatory sentences for attempted first degree murder and sexual battery. Sections 775.082(3)(a), 777.04(4)(a), 782.04(l)(a), and 794.011(3), Florida Statutes (1981). Where the sentence imposed is not authorized by law, the judgment should be reversed and the cause remanded for proper sentencing. Hunter v. State, 64 Fla. 315, 60 So. 786 (1913).

Second, the trial judge’s announced intention was that all of the above sentences and any sentence which might result from appellant’s parole violation would run concurrently. The state acknowledges that the written judgments and sentences should conform to the lower court’s announced intention. Byrd v. State, 388 So.2d 1362, 1363 (Fla. 5th DCA 1980).

Accordingly, we remand to the trial court with directions to delete the provisions for minimum mandatory sentences for the attempted murder and sexual battery offenses and to modify all the above sentences to show that they run concurrently with one another and with any sentence imposed upon appellant for violating his parole.

HOBSON, A.C.J., and SCHOONOVER, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    Deborah RAHMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 82-282.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This appeal involves the question of whether the remarks made by the prosecutor so prejudiced the defendant as to require a new trial.

Ms. Rahmings was charged with aggravated assault by use of a firearm. In his closing argument to the jury, the prosecutor stated:

Your conviction will do two things today: It will take the presumption of innocence totally away from her and you will sleep at night, because you’re going to prevent a murder. And that’s what it’s going to boil down to. One day Rahmings is going to come out and pull that trigger. So you can sleep real good tonight because you will have prevented a murder by giving her a conviction, believing the state’s case.

Counsel for the accused objected to this comment and moved for a mistrial. The motion was denied, and the jury found Rahmings guilty of aggravated assault without the use of a firearm. She now contends that the court should have granted a mistrial since the prosecutor’s remarks improperly influenced the jury.

Admittedly, counsel is permitted wide latitude in arguing to a jury. Breedlove v. State, 413 So.2d 1 (Fla.1982). However, highly prejudicial and inflammatory remarks require reversal unless the appellate court can determine from the record that the improper statements did not prejudice the defendant. Pait v. State, 112 So.2d 380 (Fla.1959); Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968). Here, the prosecutor’s remarks may have been prompted by evidence of a previous altercation between the defendant and the victim. In any event, the comment created the impression that if the jury acquitted the defendant, she would subsequently commit a murder. Remarks of a similar nature brought about reversals in Grant v. State, 194 So.2d 612 (Fla.1967); Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979); Russell v. State, 233 So.2d 154 (Fla. 4th DCA 1970). We hold that the offending statement was so prejudicial as to deprive the defendant of a fair trial.

Accordingly, we reverse the judgment of conviction and sentence and remand for a retrial. Our decision makes any discussion of the remaining issues on appeal unnecessary.

SCHEB and LEHAN, JJ., concur.


author: CAMPBELL, Judge.

text:
    MICROFILE, INC., Appellant, v. Sandra WILLIAMS and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 82-1610.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.
    Enrique Escarraz, III, St. Petersburg, for appellant.
    Marshall G. Reissman, St. Petersburg, for appellee Williams.
    James R. Parks and A. Robert Whaley, Tallahassee, for appellee Unemployment Appeals Com’n.
   CAMPBELL, Judge.

Appellee, the Unemployment Appeals Commission, finding that the referee’s findings of fact were supported by substantial competent evidence, adopted them with certain specific exceptions. We find, as did the Unemployment Appeals Commission, that these exceptions from the referee’s findings were not supported by substantial competent evidence. The Unemployment Appeals Commission, basing its decision upon the findings of the referee as adopted with the noted exceptions, found that the referee’s conclusion of law that appellee Sandra Williams was guilty of misconduct was an erroneous one. Reaching a different conclusion of law from that of the referee is within the scope of review of the Unemployment Appeals Commission as provided by section 443.151(4)(c), Florida Statutes (1981), and we, therefore, affirm. Reaching a different conclusion of law from that of the referee, based upon the same facts as found by the referee or those properly rejected as not being supported by the record, does not violate the standard of review recognized in C.F. Chemicals, Inc. v. State Department of Labor, 400 So.2d 846 (Fla. 2d DCA 1981), and State Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977).

AFFIRMED.

OTT, C.J., and DANAHY, J., concur.