author: CAMPBELL, Judge.

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. L. F. E. CORPORATION and J. E. Greiner Engineering Sciences, Inc., Appellees.
    No. 79-1342.
    District Court of Appeal of Florida, Second District.
    March 14, 1980.
    Rehearing Denied April 14, 1980.

      J. Brent Walker and James M. Shuler of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for appellant.
    David J. Kadyk and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee, L. F. E. Corporation.
    Judith W. Simmons of Harrison, Greene, Mann, Rowe, Stanton & Mastry, Tampa, for appellee, J. E. Greiner Engineering Sciences, Inc.
   CAMPBELL, Judge.

From an adverse final judgment granting motions to dismiss its third amended third party complaint, the appellant, The Fidelity and Casualty Company of New York, takes this appeal.

The original proceeding below was brought against the appellant by the Hills-borough County Aviation Authority as plaintiff (hereinafter referred to as “Authority”), on a cause of action arising out of an insurance policy issued by the appellant insuring Authority against damage by fire, lightning, windstorm or other perils at Tampa International Airport, owned and operated by Authority. Appellant then filed a third party complaint against the appellee L.F.E. Corporation. L.F.E. was the contractor that originally installed the revenue control equipment for the parking lots at Tampa International Airport pursuant to contract documents and specifications for that equipment prepared by the appellee, J. E. Greiner Engineering Sciences, Inc., pursuant to its contract with Authority to act as the consulting engineer on the entire Tampa International Airport project.

Authority and the appellant subsequently settled their differences and an order of dismissal of the original complaint was entered by the trial court leaving only the third party complaint against L.F.E. Thereafter, an amended third party complaint was filed by the appellant alleging separate causes of action against both L.F.E. and Greiner. Motions to dismiss the amended third party complaint for failure to state a cause of action were filed by both L.F.E. and Greiner and were granted. Appellant then filed a second amended third party complaint, again alleging separate causes of action against both L.F.E. and Greiner, and motions to dismiss for failure to state a cause of action were again granted by the trial court. Appellant then filed its third amended third party complaint, again alleging separate causes of action against both L.F.E. and Greiner, and the court then entered its final judgment granting motions to dismiss again filed by both L.F.E. and Greiner for failure to state a cause of action, the final judgment providing that appellant take nothing by its third party complaint and that costs be assessed as thereafter to be taxed in favor of the appellees and against the appellant.

L.F.E.’s contract with Authority for the installation of the revenue control system was apparently entered into on December 5, 1972, and, though it is not clear in the record, was apparently completed prior to December of 1973.

After L.F.E. had installed the revenue control system, Greiner, as a result of conferences with Authority, wrote to Authority on December 21, 1973, a letter attached as Exhibit “A” to appellant’s third amended third party complaint. In that letter Greiner recommended certain steps to be taken to improve the lightning protection for the revenue control system. Thereafter, on February 4,1974, Greiner wrote to Authority a letter attached as Exhibit “A” to the third amended third party complaint, informing Authority that Greiner was proceeding with the preparation of the contract documents for the work to be done to improve the lightning protection for the revenue control system and that they would bill for their work in accordance with their agreement with Authority dated September 6, 1966, and the work would be performed under their Contract Number 6720-0100. Bids were then solicited for. the installation of the lightning protection system pursuant to the contracts and specifications prepared by Greiner and a contract for that installation was entered into on the 25th of April, 1974, between Authority and the Howard P. Foley Company (hereinafter referred to as “Foley”). This lightning control system installed by Foley was accepted as complete on June 27, 1974.

Authority’s original complaint against the appellant alleges lightning strikes at Tampa International Airport causing damages to the revenue control system on June 4, 1974; August 26, 1974; September' 18, 1974; June 2, 18 and 24, 1975; July 11, 15 and 30, 1975; August 8 and 15, 1975; and September 6, 1975. Appellant’s third amended third party complaint alleges that appellant indemnified Authority for losses sustained from lightning strikes causing damage to the revenue control system prior to May 18, 1978. Count I of appellant’s third amended third party complaint applies only to L.F.E., and in essence alleges that L.F.E. breached its contract with Authority by failing to install and construct the revenue control system so as to operate within the performance requirements of the specifications. Appellant admits that L.F.E. installed the system as required by the specifications and contract prepared by Greiner, but takes the position in its third amended third party complaint that L.F.E. should have gone further and foreseen the need for a lightning protection system as allegedly required by Section 20-04 of L.F.E.’s contract with Authority. That section of the contract is referred to by the parties as the “local conditions” clause and reads as follows:

20-04 Examination of Site of the Work, Contract Documents, and Local Conditions
The Bidder is required to examine carefully the site of the proposed work, the Proposal, Plans, Specifications, and Contract Forms. He shall assume full responsibility for having familiarized himself with the nature and extent of the Contract Documents, work, locality, and local conditions that may in any manner affect the work to be done. The submission of a Proposal shall be prima facie evidence that the Bidder has complied with this requirement.

Appellant, by its alleged cause of action against L.F.E., interprets that clause as requiring L.F.E. to familiarize itself with local conditions to the extent that L.F.E. should have been required to make design and specification changes other than those specified by Greiner if necessary to protect against lightning strikes.

We feel that the trial judge was correct in dismissing Count I as failing to state a cause of action against L.F.E.

Count II of appellant’s third amended third party complaint also applies only to L.F.E. In that Count appellant charges that L.F.E. had some duty to install the revenue control system to withstand the effects of lightning strikes even though the contract specifications prepared by Greiner did not so require, and further alleges that in installing the system without such protection, L.F.E. negligently breached a duty owed by L.F.E. to Authority.

We also feel that the trial judge was correct in dismissing Count II as failing to state a cause of action against L.F.E.

Count III of appellant’s third amended third party complaint applies only to Greiner. It alleges that Greiner entered into a contract with Authority on September 9, 1965, to furnish certain engineering services in connection with the construction of the airport terminal facilities at Tampa International Airport, and that in the performance of those obligations it prepared the contract documents and specifications for the revenue control system. It further alleges that on or after December 21, 1973, Greiner voluntarily undertook to design a lightning protection system for Authority which would provide proper shielding for the revenue control system, and that on April 25,1974, in reliance upon those recommendations and designs, Authority executed the contract with Foley. Count III further alleges that the lightning protection system was constructed and installed according to the system designed by Greiner, and that thereafter as a result of the negligent design of the lightning control system by Greiner, Authority suffered damages by lightning strikes which were subsequently indemnified by the appellant. Count III also alleges Greiner had a duty to use a level of care required of a design professional in designing a lightning protection system and that it failed to use that level of care required of such a professional in designing a lightning protection system.

The arguments of the parties as they pertain to the dismissal of Count III of appellant’s third amended third party complaint against Greiner revolve around the questions of whether the complaint and exhibits in the record allege that Greiner was acting as a “volunteer” in designing for Authority a lightning protection system and, if so, whether a cause of action could stand which alleged that the “volunteer” negligently breached duties it had assumed by failing to provide a specified standard of care in the performance of its “volunteered” acts. It is the allegation in Paragraph 15 of Count III of appellant’s third amended third party complaint that “Greiner voluntarily undertook ... to design a lightning protection system,” which seems to cause most of the difficulties in determining whether or not appellant’s Count III states a cause of action against Greiner. The letter from Greiner dated February 4, 1974, attached to appellant’s third amended third party complaint as Exhibit “B”, informed Authority that Greiner was proceeding with the preparation of the work and that billing for the work would be provided for per Greiner’s agreement with the Authority dated September 6,1966, and that the work would be performed under Greiner’s Contract No. 672-0100. Greiner’s basic contract for providing engineering services to Authority is dated September 9, 1965, attached as Exhibit “B” to appellant’s first amended third party complaint. Included in that exhibit is a resolution of Authority authorizing an assignment of the contract from J. E. Greiner Company, a partnership, as it existed at the time of the formation of the contract, to J. E. Greiner Company, Inc., a subsequently formed Maryland corporation. In that resolution, there appears the statement that in addition to the basic contract of September 9, 1965, and subsequently amended March 3, 1966, there was a contract entered into between Authority and Greiner for “miscellaneous engineering services in connection with the airports under the supervision and control of the Authority, said contract being dated September 6, 1966.” According to Greiner’s letter of February 4, 1974, it was pursuant to that September 6, 1966, contract that Greiner was preparing the documents for the lightning protection system and under which Authority would be billed. Thus, it appears from the record that Greiner, under an existing contract with Authority to perform miscellaneous engineering services, came forward and made recommendations to Authority as to the proper manner to provide better lightning protection for the revenue control system at Tampa International Airport. This “coming forward” under the terms of the contract has been described by the appellant in its third amended third party complaint as Greiner “voluntarily undertaking” to design the lightning protection system.

Under Florida Rule of Civil Procedure 1.130(b), we must consider the exhibits attached to appellant’s third amended third party complaint as a part of the pleadings. Woolzy v. Government Emp. Ins. Co., 360 So.2d 1153 (Fla. 3d DCA 1978); Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971). Appellant’s third amended third party complaint might have been more precisely or artfully drawn, but that is not the issue here. The sole issue is whether or not the complaint and the exhibits thereto allege a cause of action against Greiner, so as to survive a motion to dismiss. This issue was thoroughly discussed in Thomas v. Rollins, 298 So.2d 186, 187 (Fla. 1st DCA 1974), where, in quoting from the previous decision of Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974), they said in part:

At the outset we emphasize that there is a clear distinction between a motion to dismiss, a motion for summary judgment, a motion for judgment on the pleadings, a motion for directed verdict and post trial motions.
Although all persons, including pleaders, should constantly strive for perfection, it is not requisite that every complaint be a model pleading. It is not necessary, nor indeed desirable, that a plaintiff allege evidence. Aside from allegations as to jurisdiction and demand for judgment for relief the rule only requires “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.”

In turning to the question of whether, if Greiner were strictly a volunteer, appellant’s third amended third party complaint stated a cause of action for a breach of those duties voluntarily assumed, appellant cites us the case of Shealor v. Ruud, 221 So.2d 765 (Fla. 4th DCA 1969). There the court held a city liable where it negligently installed railroad warning devices where it assumed to act in its proprietary capacity. The court there reasoned that since the city was acting in its proprietary capacity, if the assumed duty was performed in a negligent manner, the city would be liable under the doctrine that one who assumes to act may thereby become subject to the duty of acting carefully if he acts at all. Greiner discounts Shealor by arguing that the court there was applying the stated law to a narrow set of facts applying to waiver of sovereign immunity. Appellant counters with the case of Ban-field v. Addington, 104 Fla. 661, 140 So. 893 (1932), a case involving the liability of a married woman for her contracts or torts. That court there held at 140 So. at page 896:

In every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care. Street’s Foundations of Legal Liability, vol. 1 page 92. And even “where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract. The two duties are distinct, except so far that the same party cannot be compensated twice over for the same facts, once for the breach of contract and again for the wrong.” Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506, 12 L.R.A. (N.S.) text 933.
Where a transaction complained of has its origin in a contract for service which places the parties in such a relation to each other that in attempting to perform the promised service a tort is committed, then the breach of the contract is not the gravamen of the suit brought to recover damages for the tort. And in such case the contract is considered mere inducement, creating the state of things which furnishes the occasion of the tort, but not the basis of recovery for it, and in all such cases the remedy is an action ex delicto on the case. Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 12 L.R.A. (N.S.) 924; Brown v. Boorman, 11 Clark & F. 1; Myers v. Gilbert, 18 Ala. 467; Mobile Life Ins. Co. v. Randall, 74 Ala. 170; Nevin v. Pullman Palace Car Co., 106 Ill. 222, 46 Am.Rep. 688; Zell v. Arnold, 2 Pen. & W. (Pa.) 292; Elsee v. Gatwood, 5 T.R. 143; Ashmore v. Pennsylvania Steam Towing & Transp. Co., 28 N.J.Law 180; Emigh v. Pittsburg, etc., R. Co., 4 Biss. 114, Fed.Cas.No.4449. And so it is that where an undertaking is wholly gratuitious, an action on the case will lie for misfeasance in regard thereto. Hyde v. Moffat, 16 Vt. 271; Gill v. Middleton, 105 Mass. 477, 7 Am.Rep. 548. See, also, 26 R.C.L. 758.

Biadi v. Lawyers Title Insurance Corp., 374 So.2d 30, 35 n. 14, (Fla. 3d DCA 1979), recognizes Ban field v. Addington, 104 Fla. 661, 140 So. 893 (1932), as standing for the theory that a negligent act, even though gratuitously undertaken, is subject to the scrutiny of the standard of duty of due care. This theory of liability for negligence in the acts of a volunteer was also approved in Fruehauf Corporation v. Aetna Insurance Co., 336 So.2d 457 (Fla. 1st DCA 1976). This court has also approved that theory by quoting with approval Banfield v. Adding-ton, 104 Fla. 661, 140 So. 893 (1932), in Florida Southern Abstract & Title Co. v. Bjellos, 346 So.2d 635 (Fla. 2d DCA 1977).

Accordingly, we affirm the trial court in its dismissal of the third amended third party complaint against the appellee L.F.E. We reverse as to its dismissal of the third amended third party complaint against the appellee Greiner and remand the cause as to Greiner to the lower court for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ralph FREDERICKS, Appellant, v. A. H. BLAKE, Property Appraiser for Metropolitan Dade County, Florida; Harry Coe, Florida Department of Revenue, Appellees.
    No. 78-1805.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Rehearing Denied May 5, 1980.

      James F. Pollack, Coral Gables, for appellant.
    Robert A. Ginsburg, County Atty. and Robert L. Krawcheck, Asst. County Atty., Jim Smith, Atty. Gen. and Joseph C. Melli-champ, III, Asst. Atty. Gen., Tallahassee, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Ralph Fredericks, plaintiff-taxpayer, appeals an order dismissing with prejudice his complaint to enjoin state approval of the 1978 preliminary tax assessment rolls for Dade County.

On July 11, 1978, Ralph Fredericks, as owner of taxable real properties in Dade County, filed a complaint to invalidate the preliminary 1978 tax assessment rolls and named as defendants Dade County, the property appraiser A. H. Blake, and Harry Coe as executive director of the State of Florida, Department of Revenue. Freder-icks basically alleged that the tax rolls were a mixture of dissimilar and unequal assessments and, therefore, illegal. He requested that the court enjoin approval of the 1978 Dade County preliminary tax rolls by the Department of Revenue and all tax complaint hearings to be held pursuant to Section 194.032, Florida Statutes (1977). He also asked that a tax appraiser ad litem be appointed by the court. Defendants Dade County, Blake and Coe filed motions to dismiss listing numerous grounds including lack of standing, failure to exhaust administrative remedies, failure to enjoin indispensable parties, absence of allegations of irreparable injury, etc. After a hearing, the court entered the order dismissing with prejudice Fredericks’ complaint for injunc-tive relief for the reasons of failure to exhaust administrative remedies and mootness in that the preliminary tax roll had already been approved (while the action was pending). Fredericks appeals therefrom. We affirm.

An injunction is a drastic remedy which should be granted cautiously and sparingly and the essential requisites for an injunction are lack of a full, complete remedy at law and prevention of irreparable injury. Parrish v. Joyner, 54 So.2d 50 (Fla. 1951); Stoner v. South Peninsular Zoning Commission, 75 So.2d 831 (Fla.1954). Thus, a taxpayer of the state or county has standing to bring an action for a declaratory decree and/or injunctive relief against the proper public officials to restrain the unlawful exercise of the state or county’s taxing or spending authority only upon a showing of a special injury to such taxpayer which is distinct from that sustained by every other taxpayer in the taxing unit. Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); Paul v. Blake, 376 So.2d 256 (Fla. 3d DCA 1979); see also City of Coral Springs v. Florida Nat. Properties, 340 So.2d 1271, 1272 (Fla. 4th DCA 1976). As in the instant case where the taxpayer is contesting an assessment, he or she must allege (as special injury) that his or her property is either being assessed at greater than 100% of its fair market value or that substantially all other property in the county is systematically assessed at a value less than the assessment of his or her property. Deltona Corporation v. Bailey, 336 So.2d 1163, 1167-68 (Fla.1976). Fredericks’ complaint for injunctive relief contains no allegations of special injury.

We further find that the allegations of the complaint fail to fall within the exception to the special injury standing requirement. A taxpayer may institute a suit without a showing of special injury if he attacks the exercise of the state or county’s taxing or spending authority on the ground that it exceeds specific limitations imposed on the state or county’s taxing or spending power by the United States or Florida Constitutions. Paul v. Blake, 376 So.2d 256, 259 (Fla. 3d DCA 1979), supra. Outside of the broad unsupported allegation that the 1978 tax rolls are in violation of Article 7, Section 1 of the Florida Constitution (which states: “No tax shall be levied except in pursuance of law”) Fredericks’ complaint fails to allege violations of specific provisions of the Florida Constitution relating solely to the county’s taxing power.

In addition, Fredericks has failed to demonstrate that there are no full, complete and adequate remedies at law available to him. The legislature has prescribed a comprehensive procedure for supervision and review of the preliminary rolls. See e. g. Sections 193.114(5), (6), 195.097, 195.098, Florida Statutes (1977). The injury, if any, could possibly occur only upon completion of the above supervision and review. Compare Town of Palm Beach v. Palm Beach County, 332 So.2d 355 (Fla. 4th DCA 1976).

Fredericks was required to first exhaust his administrative remedies as he lacked standing to invoke the original jurisdiction of the circuit court. See Monroe County v. Gustinger, 285 So.2d 431 (Fla. 3d DCA 1973). Upon receipt of his property assessment he can, and in fact did, pursuant to Section 194.011(3), Florida Statutes (1977) file a petition raising the same objections to his assessment and then be entitled to a hearing before the Property Appraisal Adjustment Board as provided by Section 194.032, Florida Statutes (1977). Fredericks may possibly obtain the relief desired before the Board which may make such substantial changes in the final rolls that Fred-ericks will have no complaint. Alternatively, if he is dissatisfied with the Board’s action, he may then file suit in circuit court as provided by Section 194.171, Florida Statutes (1977).

There are additional reasons why we feel compelled to affirm the dismissal order. By its very nature an injunction will lie only to restrain commission of a future injury since it is impossible to prevent what has already occurred. City of Coral Springs v. Florida Nat. Properties, 340 So.2d 1271, 1272 (Fla. 4th DCA 1976), supra. After the filing of the instant complaint to enjoin approval of the preliminary rolls, but prior to a hearing on the complaint, defendant Coe approved the rolls and, therefore, an injunction could not issue.

Further, an injunction will not be granted in cases where it is readily apparent that it will result in confusion and disorder and produce an injury to the public that outweighs the individual right of the complainant to have the relief sought. 17 Fla.Jur. Injunctions § 26 (1958). The granting of Fredericks’ requested injunction would deprive the county and other taxing authorities of the orderly and timely receipt of essential revenues as well as precluding defendant Coe from performing his duties pursuant to Section 195.097, Florida Statutes (1977) and all subsequent administrative review.

For the reasons stated herein we conclude that the complaint for injunctive relief would not lie under the circumstance presented by the instant case.

Affirmed.


text:
    Robert Charles SENECA, Appellant, v. Frances June Bellas SENECA, Appellee. Robert Charles SENECA, Appellant, v. Frances June Bellas SENECA, E.S.M. Financial Group, Inc., E.S.M. Group, Inc., Foxton Securities, George M. Mead, E.S.M. Securities, Inc., Florence O. Mead, and Ronnie R. Ewton, Appellees. Robert Charles SENECA, Petitioner, v. The Honorable Louis WEISSING, Judge of the Circuit Court of the Seventeenth Judicial Circuit, Respondent.
    Nos. 78-1147, 78-1552, 78-1629, 79-698, 79-1046, 79-1945, 79-918 and 79-920.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.
    Rehearing Denied May 5, 1980.

      Eugene E. Stearns of Arky, Freed, Stearns, Watson & Greer, Miami, for appellant.
    S.Robert Zimmerman, Pompano Beach, and Richard Michael Birnbaum, Fort Laud-erdale, for appellees.
   PER CURIAM.

We have for review eight consolidated cases consisting of seven interlocutory appeals and one petition for certiorari, all arising out of a marriage dissolution proceeding. In addition to the eight cases seeking review of interlocutory orders, we have pending for disposition numerous motions which will be disposed of by separate order.

The petition for dissolution was filed by the appellant/petitioner in January 1978. As yet the matter has not progressed to final hearing. On April 24, 1978, the trial court entered an order granting the wife temporary relief. Among other things the court awarded the wife temporary custody of the minor child of the marriage, possession of the marital domicile, temporary alimony and child support (undesignated) and temporary attorney’s fees. All of the interlocutory appeals stem from orders of the trial court enforcing the temporary relief order of April 24, 1978. The petition for writ of certiorari seeks review of orders denying petitioner’s motion to disqualify the trial judge.

After reading of the briefs and such parts of the extensive appendices as we are compelled to consider, we find little reversible error demonstrated. Appellant finds much to complain about in the trial judge’s disposition of the various matters brought before him. However, we are constrained to observe that appellant rarely complied with any court orders until he was threatened with incarceration or other coercive measures. Be that as it may, we have considered separately all of appellant’s points set forth in each of the cases.

Case No. 78-1552 should be dismissed because it seeks review of a non-appealable order.

No reversible error is demonstrated in Case Nos. 78-1629, 79-698, 79-1046, and 79-1945, thus the orders in those cases should be affirmed without further discussion.

We also find no reversible error demonstrated in Case No. 78-1147 except as to that provision of the May 15, 1978 order granting the wife’s petition for. sequestration of the husband’s property. We are unable to determine from the record presented whether it was necessary to sequester all of appellant’s property in order to enforce the April 24, 1978 order of temporary relief. Accordingly, on remand the trial court should determine whether sequestration is still necessary and if the court finds it is imperative in order to enforce its orders then the court is requested to make a finding of the approximate value of the property sequestered and to retain under the order of sequestration only so much thereof as the court finds necessary to secure the enforcement of its orders.

We affirm the orders attacked in Case No. 79-918 except the entry of the final judgment of April 11, 1979. To the extent that said judgment included sums previously adjudicated which were pending on interlocutory appeal, the judgment is erroneous. Therefore, on remand the trial court should amend the judgment and delete any such sums contained therein. This of course will not preclude the trial judge from entering judgment for said deleted sums, after reacquiring jurisdiction, if he finds such a judgment to be appropriate.

In the certiorari proceeding, petitioner contends the trial court erred in denying petitioner’s motion for the trial judge to recuse himself and in denying a subsequent motion to disqualify himself due to ex parte communications with opposing counsel. The order of November 13, 1978 denying petitioner’s motion to recuse can not be reviewed by petition for certiorari filed April 13, 1979; it is simply untimely. With regard to the order of April 9, 1979 denying petitioner’s motion to disqualify the trial judge, the petitioner’s brief and appendix do not demonstrate reversible error.

Accordingly, the judgments and orders involved in Case Nos. 78-1629, 79-698, 79-1046, and 79-1945 are affirmed. Case No. 78-1442 is dismissed. The petition for cer-tiorari filed in Case No. 79-920 is denied.

The orders in Case Nos. 78-1147 and 79-918 are affirmed in all respects except as provided hereinabove.

The entire cause is remanded to the trial court for further proceedings consistent with this opinion.

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

      . Petitioner originally filed a petition for writ of prohibition which this court elected to treat as a petition for certiorari.


author: DAUKSCH, C. J.

text:
    Samuel Eddie SLIGER, Robert Love Brandon, Jeffrey Michael Hurst, Appellants, v. STATE of Florida, Appellee.
    Nos. 79-121/T2-8, 79-122/T2-8A and 79-123/T2-8B.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.
    Rehearing Denied April 24, 1980.

      Susan F. Schaeffer and Martin M. Murry of Schaeffer & Murry, P.A., and Joel P. Yanchuck of Earle, Yanchuck & Thompson, P.A., St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason and Gregory C. Smith, Asst. Attys. Gen., Tampa, for appellee.
   DAUKSCH, C. J.

In these consolidated appeals, we are essentially foreclosed from giving relief to the appellants on some of the grounds because the errors of which they complain would not be dispositive of the case and they pleaded nolo contendere thereby giving up their right to trial. The alleged errors we cannot treat on appeal are the denial of a motion to sever, the denial of a motion to continue, and the denial of a motion to discharge because of an alleged delay which was violative of constitutional standards of due process and the right to a speedy trial as defined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The recent case of Brown v. State, 376 So.2d 382 (Fla.1979) discusses the rationale behind our not reviewing alleged errors which are not dispositive of the case.

In order for us to find error in the motion for severance and the denial of the motion for continuance then we must first find the appellants were prejudiced by the alleged error. It is impossible for us to do that without reviewing a trial. This applies to the motion for discharge as well because we must first find the appellants were prejudiced by the delay and that prejudice cannot be presumed in this case. In any event, the denial of the motion for discharge was not violative of Rule 3.191, Florida Rules of Criminal Procedure, because the 180 days had not run by the time the nolo contendere plea was entered.

We find no error in the denial of the motion to suppress evidence because we have determined probable cause existed for the searches and seizures. The state sufficiently, albeit barely, traversed the motion to dismiss filed under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, so we find no error in the denial of the motion to dismiss.

As was done in Brown and Heath v. State, 379 So.2d 194 (Fla. 5th DCA 1980), we remand this case to the trial court to permit the appellants to withdraw their pleas and plead anew, if they so desire.

The highly unusual, to say the least, sentencing procedures in this case are specifically disapproved. Briefly, this is what occurred. The trial judge offered each appellant five years probation if he would pay a fine of fifty thousand dollars ($50,000.00) and give up the right to appeal the past rulings of the court. Appellant Brandon, through his attorney, made a “counter-offer” of twenty thousand dollars ($20,000.00) because “he [was] going to have to borrow heavily, and ... he could not come up with the Fifty Thousand.” The maximum lawful fine was ten thousand dollars ($10,000.00). After each appellant refused the court’s offer, the judge sentenced each to five years in prison. This bargaining by the court is demeaning and the attempt to extract fifty thousand dollars ($50,000.00) along with a waiver of appellate rights is worse than that. After a trial or other proceedings, if such occur, the trial judge will have the opportunity to reflect upon the matter and keep us from having to consider possible due process or equal protection allegations as regards the sentences.

The convictions are reversed in order to allow the appellants to withdraw their pleas.

REVERSED AND REMANDED.

COBB and SHARP, JJ., concur.


author: OTT, Judge.

text:
    John Rueben RAMER, Appellant, v. Joan Maecher RAMER, Appellee.
    No. 79-622.
    District Court of Appeal of Florida, Second District.
    March 19, 1980.
    Rehearing Denied April 17, 1980.
    Charles H. Livingston of Livingston, Patterson & Strickland, Sarasota, and Livingston & Livingston, Sebring, for appellant.
    Faith K. Stalnaker, Orlando, and Jack P. Brandon of Peterson, Myers, Craig, Crews, Brandon & Mann, Lake Wales, for appellee.
   OTT, Judge.

The final judgment dissolving this 22 year marriage found that appellee had no special equity in appellant’s separate (premarital) real property by reason of contribution to the acquisition or maintenance thereof, but did have a special equity therein by virtue of her contribution to the marriage in raising the children.

Obviously, the trial court was motivated by some of the considerations relied upon in Brown v. Brown, 300' So.2d 719 (Fla. 1st DCA 1974), where an award of lump sum alimony was used to achieve substantial equity in distributing property acquired during marriage by the joint efforts of the spouses. The fact that the efforts of one spouse were directed toward making a home and raising children, while the other marital partner pursued financial gain more directly, was held not to disqualify the former from claiming an equitable share in property thus accumulated. The Florida Supreme Court has now approved those views. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

However, neither Brown nor Canakaris sanctions an award of a "special equity” in one spouse’s separate property by reason of equitable considerations arising from the other spouse’s domestic contributions to the marriage. Canakaris specifically enjoins use of the term “special equity” except when analyzing a vested interest in property because of the contribution thereto of nonmarital funds or of services over and above normal marital duties. Accordingly, we reverse the portion of the judgment granting appellee a special equity in appellant’s separate property.

As Canakaris points out, there has been considerable confusion, in both trial and appellate courts, as to when, how and to what extent the concepts of permanent alimony, lump sum alimony, rehabilitative alimony and special equities may be recognized and applied in domestic relations proceedings. By three simultaneously released opinions the Florida Supreme Court has laid down firm and definitive guidelines to assist the courts in resolving those issues. Canakaris, supra; Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ingrain v. Ingram, 379 So.2d 955 (Fla.1980).

Since the trial court has had no opportunity to consider the present case in the light of those pronouncements, we remand the matter for such further proceedings and orders as may be appropriate.

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


text:
    DEPARTMENT OF TRANSPORTATION of the State of Florida, Petitioner, v. Leolus L. WALL, as Personal Representative of the Estate of Iris M. Wall, Respondent.
    No. 80-86.
    District Court of Appeal of Florida, Second District.
    March 19, 1980.
    Rehearing Denied April 14, 1980.
    James R. Dirmann, of Dirmann & Scott, Sarasota, for petitioner.
   PER CURIAM.

Certiorari denied. The error, if any, is remediable by other means. See Widener v. Kellenberger, 147 So.2d 545 (Fla.2d DCA 1962).

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    Willa Mae ROBERTS, Appellant, v. Michael W. ROBERTS, as Personal Representative of the Estate of Wendell L. Roberts, Deceased, Appellee.
    No. PP-181.
    District Court of Appeal of Florida, First District.
    March 25, 1980.
    Rehearing Denied May 8, 1980.
    Gerald A. McGill of Wells, Brown & Brady, Pensacola, for appellant.
    Harry Lewis Michaels, Tallahassee, for appellee.
   PER CURIAM.

We feel constrained to affirm, on the authority of Bencomo v. Bencomo, 200 So.2d 171 (Fla. 1967), the summary judgment granted in favor of the deceased husband’s estate. An issue almost identical to that involved in this suit is, however, currently before the Florida Supreme Court on a certified question. West v. West, 872 So.2d 170 (Fla. 2d DCA 1979). Pursuant to article V, section 3(b)(3), Florida Constitution, we certify the following question to the Supreme Court as one of great public interest:

Does the doctrine of interspousal immunity bar suit by one former spouse against a deceased spouse’s estate when an intentional tort allegedly was committed during the marriage which has now been terminated by the alleged tort-feasor/spouse’s death?

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    Morry WINGOLD and W and G Holdings Limited, Appellants, v. Bernard H. HOROWITZ et al., Appellees.
    No. 79-876.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Rehearing Denied May 5, 1980.
    Shalle Stephen Fine, Miami, for appellants.
    Wallace & Breslow and Milton J. Wallace, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   VANN, HAROLD R. (Ret.), Associate Judge.

This case has a long history and arises out of a final judgment entered in November of 1971, which concerned certain commercial transactions and primarily the default in the payment of a mortgage by the defendant Horowitz, an appellee herein. Following an appeal of the final judgment to this court (274 So.2d 591), the Supreme Court of Florida granted certiorari and reversed the final judgment (292 So.2d 585, 587), resulting an amended judgment of November 14, 1974. Some four years later, on December 14,1978, the trial court entered an order on post-judgment motions, striking paragraph 17 of the prior order and substituting therefor an amended paragraph 17, finding certain monies due and owing to the plaintiffs, the appellants herein; acknowledging a substituted receiver for the assets collectively pledged by the defendants; and providing a date for the sale of the assets, unless the defendants paid in full. Amended paragraph 17(b) taxed the receiver’s fees and costs and the receiver’s attorney’s fees (previously adjudicated in .December of 1971) against the defendants. Because the defendants did not pay the amounts due by the specified date, the sale of the assets took place, and the receiver’s report was filed with the trial court shortly thereafter. Then, on April 2, 1979, the trial court entered the order here appealed, in which the receiver and the receiver’s attorney were awarded additional fees; these fees were to be paid by the plaintiffs. This appeal followed, urging that the trial court erred in ordering the plaintiffs to pay these fees. We agree and reverse.

In its order on post-judgment motions rendered on December 14, 1978, the trial court taxed the receiver’s fees and costs and the receiver’s attorney’s fees against the defendants. It would appear that the defendants suggest on this appeal that the trial court, in that order, might properly have taxed such costs against the plaintiffs or have assessed them against the fund or property in receivership. While the trial court could have done these things, the simple fact remains that it did not. Rather, it taxed the receiver’s costs and fees and the receiver’s attorney’s fees against the defendants. No appeal has been taken from the order entered on the post-judgment motions and any speculation on the correctness of that order should not be indulged in at this juncture.

An examination of amended paragraph 17(h) suggests that the court might well have sought to assess the costs of the receivership against certain property in receivership, to-wit:

“Pending the sale and the confirmation of sale, the Receiver shall continue to hold that certain mortgage and note dated 2/17/71, from Nassau Oaklands Limited to W & G Holdings Limited, as security for the payment of the costs and attorneys’ fees of the Receivership. Upon the confirmation of sale and the payment of costs and attorneys’ fees, the Receiver shall cause the assignment of said mortgage to the Plaintiffs’ nominee.”

The fact remains, however, that the note and mortgage referred to above have since been assigned to the plaintiffs. Thus, while the court might well have been able, originally, to tax costs against the plaintiffs, it cannot do so now, having already taxed them against the defendants.

Reversed and remanded.

      . Deauville Corporation v. Blount, 160 Fla. 286, 34 So.2d 537 (1948).

      . Assuming that the court ordered sale of the property in receivership was for “less than the property should reasonably be expected to sell for” an appeal could arguably have been taken from the receiver’s report of sale. See 27 Fla. Jur.Receivers § 47. No such appeal, however, was timely taken. Thus, it is submitted that no equitable considerations would mandate the taxing of costs against appellant after the appellate period expired.


author: PER CURIAM. BOOTH, Judge,

text:
    Shanon N. COREY, Appellant, v. BOCA DEL MAR GOLF AND TENNIS CLUB and Industrial Indemnity Company, Appellees.
    No. SS-9.
    District Court of Appeal of Florida, First District.
    March 26, 1980.
    Rehearing Denied May 2, 1980.
    Douglas R. Bell, Fort Lauderdale, for appellant.
    Walter E. Beisler, West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr., and SHAW, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of- Bay Harbor, 878 So.2d 1265. (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: SHARP, Judge.

text:
    Bernard ZINGER, Appellant, v. Patrick Myron GATTIS and Dorothy McGuire, Appellees.
    No. 79-614/T2-20.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Rehearing Denied April 23, 1980.
    Lee S. Damsker, of Gordon & Maney, P. A., Tampa, for appellant.
    Hector J. Lombana, of A. M. Schwitalla, Coral Gables, for appellees.
   SHARP, Judge.

The appellant, Bernard Zinger sought a declaratory judgment of his rights as stockholder and principal officer of Citrus Aviation, Inc., and other relief, against the ap-pellees, Gattis and McGuire. After a non-jury trial the lower court denied any relief because no stock in Citrus Aviation, Inc. was formally issued. We reverse this case for a new trial.

There was conflicting evidence presented concerning the ownership and control of Citrus Aviation, Inc. Both Zinger and Gat-tis consulted a Lakeland attorney about forming the corporation. It was formed with Gattis as the sole incorporator, on September 17, 1974. Both signed signature cards on the corporate account; Zinger paid the attorney $600.00 to form the corporation; the attorney’s notes indicate both were to have a one-half interest in the corporation; and both signed a corporate resolution. The corporation thereafter entered into a lease with Citrus County of the airport facility and signed a contract to construct a hangar with a general contractor. Zinger advanced $52,000.00 to construct the hangar. Zinger testified that in exchange for advancing “operating funds,” he was to get 51% of the corporation. Gat-tis testified he wanted $250,000.00 for a 50% interest in the corporation and Zinger never agreed to pay that much. Both Gattis and Zinger testified that the Board of Directors of Citrus Aviation, Inc. never held a meeting to authorize the issuance of corporate stock, and there was very little formalization of corporate decisions by minutes or resolutions. The trial judge noted the factual disputes presented, but he declined to resolve them. He ruled that Zinger could have no interest in the corporation as a stockholder because a first meeting of the Board of Directors of Citrus Aviation, Inc. had never been held to authorize the issuance of any stock.

The trial judge’s findings of fact and conclusions of law come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous. Frell v. Frell, 154 So.2d 706 (Fla.3d DCA 1963). He will be sustained if his ruling is correct, regardless of the route traveled or the reasons assigned for the ruling. Ray v. Dock and Marine Construction, Inc., 183 So.2d 237 (Fla.3d DCA 1966). However, if the trial court’s decision is manifestly against the weight of evidence or is contrary to the legal effect of the evidence, it becomes the duty of the appellate court to reverse such a decision. Shaffran v. Holness, 102 So.2d 35 (Fla.2d DCA 1958); Brumick et a 1. v. Morris, 131 Fla. 46, 178 So. 564 (1938).

It is well established that directors’ meetings, irregularly convened or conducted, may be cured by acquiescence or subsequent ratification. Redstone v. Red-stone Lumber & Supply Company, 101 Fla. 226,133 So. 882 (1931). Mere irregularities or informalities of a stock issuance do not render the stock void. See, Randall v. Mickel, 103 Fla. 1229, 141 So. 317 (1932); Therrell v. Riley, 111 Fla. 805, 151 So. 305 (1933). In this case, there was evidence presented from which the trier of fact could have concluded that Zinger was intended to have some kind of stockholder interest in Citrus Aviation, Inc.

The narrow ruling of the trial court is not supported by the facts or by case law and is therefore contrary to the legal effect of the evidence. Accordingly, it must be reversed. Because the record of this vigorously contested suit is by now “cold”, the lower court shall conduct a new trial on the merits.

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.


text:
    Margie Ann USSERY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-872.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Rehearing Denied May 5, 1980.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and St even R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, the defendant below, was informed against, tried by jury, and found guilty of second degree murder. She was so adjudged by the court and sentenced to life imprisonment. The defendant appealed. An inculpatory statement of the defendant, which was admitted in evidence, was adequate to support the verdict.

The appellant contends that the State failed to establish the corpus delicti by evidence independent of her said statement, and therefore that the court erred in admitting her statement in evidence. We hold that contention is without merit. There was independent circumstantial evidence and opinion evidence of a medical examiner based thereon sufficient to make a prima facie case that the crime was committed. No useful purpose would be served here by making a detailed statement of the facts and review of the evidence.

In Frazier v. State, 107 So.2d 16, 26 (Fla. 1958), the Court said:

It is true that before a confession should be received in evidence there must be some independent proof of the corpus delicti. Parrish v. State, 1925, 90 Fla. 25, 105 So. 130; Keir v. State, 1943, 152 Fla. 389, 11 So.2d 886. There should at least be some additional substantial evidence, either direct or circumstantial. Tucker v. State, 1912, 64 Fla. 518, 59 So. 941. The corpus delicti need not be proved beyond a reasonable doubt, but it is enough if the evidence tends to show that the crime was committed. McEIveen v. State, Fla. 1954, 72 So.2d 785; Graham v. State, 1943, 153 Fla. 807, 16 So.2d 59. The only question is whether the evidence of the corpus delicti is prima facie sufficient to authorize the admission of the confession. Nickels v. State, 1925, 90 Fla. 659,106 So. 479, supra; Graham v. State, supra. See Annotation: 45 A.L.R.2d 1316 (1954).

In Schneble v. State, 201 So.2d 881, 883 (Fla.1967), the Court said:

* * * While it is true that, before a confession may be received in evidence there must be some independent proof, either direct or circumstantial, of the corpus delicti, it need not be proved beyond a reasonable doubt, it being enough if the evidence tends to show a crime was committed. The question is whether the evidence of corpus delicti is prima facie sufficient to authorize the admission of the confession. * * *

In Hester v. State, 310 So.2d 455, 457 (Fla.2d DCA 1975), the court said:

* * * The evidence of a corpus delicti at the particular stage of the proceeding with which we are here concerned may be solely circumstantial in character and it is enough if it tends to show a crime was committed. Concededly, that which occurred to the little girl in this case could have occurred innocently and without criminal means. This is often the case with circumstantial evidence; but unless such evidence is solely relied upon to support a conviction, all reasonable hypotheses of innocence need not be excluded. In this light, then, considering the tender age of the child and the nature and extent of the injury described by the doctors, we think a reasonable person, calling upon his common experiences, might well have felt the tendency to conclude criminal causation here. * * *

See, also, Jones v. State, 360 So.2d 1293 (Fla.3d DC A 1978). Accordingly, the judgment is affirmed.


text:
    Miguel ABRAHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-953.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Rehearing Denied May 5, 1980.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART and NESBITT, JJ„ and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant below from sentences imposed upon him by the circuit court of Dade County in two cases. The error complained of is failure of the court, in sentencing, to give the appellant-defendant credit for approximately four months time he had spent in the custody of the State, on order of the court in each such case, in the South Florida State Hospital's mentally disordered sex offender program.

The cases involved were circuit court Nos. 77-28262 and 78-12900. In the former, upon the defendant pleading guilty to a sex offense, adjudication of guilt was withheld and the defendant, on September 27, 1977, was placed on probation for a period of five years.

By an information filed September 12, 1978, the defendant was charged with burglary of a dwelling, in Case No. 78-12900. Thereafter, and based thereon, an application of violation of probation was filed against the defendant in Case No. 77-28262. The defendant admitted the violation of probation and pled guilty to the charge in Case No. 78-12900. The court entered an order in Case No. 77-28262 revoking probation, and in Case No. 78-12900 withheld adjudication, and in both cases ordered that the defendant be committed to the custody of the Department of Health and Rehabilitative Services as a mentally disordered sex offender, pursuant to Chapter 917, Florida Statutes (1977). The defendant so remained in the custody of the State from September 17, 1978, until a date in March of 1979 on which the defendant was returned to the court. On April 17, 1979, the court adjudged the defendant guilty in both cases and imposed sentences. The sentences, to run concurrently, were for imprisonment for a term of five years, with credit “for any time he’s served in jail, but not in the hospital, against his sentence.”

By Section 917.218, Florida Statutes (1979) [Chapter 77-312, § 24, Laws of Florida, 1977, effective July 1, 1977], the defendant upon being- so sentenced was entitled to credit for the time he thus had spent in the formal custody of the State.

On this appeal the State does not contend otherwise, but takes the position that when the defendant in the trial court did not object to or challenge the sentences for failure to allow such time credit, the error involved is not one to be reached on appeal, and that the defendant should be relegated to seeking appropriate relief in that regard by motion in the trial court under Fla.R. Crim.P. 3.850, citing Engel v. State, 353 So.2d 593 (Fla.3d DCA 1977), and Jenrette v. State, 373 So.2d 718 (Fla.3d DCA 1979), in which, as to questions that were raised on appeals relating to the propriety or legality of sentences, the sentences were affirmed without prejudice to the appellants-defendants to seek post-conviction relief from the sentences in those regards under the above cited rule.

In opposing that contention of the State the appellant cites Noble v. State, 353 So.2d 819 (Fla.1978), as support for the argument that notwithstanding failure of the defendant to have challenged the sentences when made, for failure of the court to give credit for time for which the defendant claims entitlement, such challenge to the sentences when presented on appeal should be considered and decided by the appellate court.

We recognize that in most such instances it would be more expeditious and represent considerable saving in time, effort and expense for questions of that kind relating to sentences to be presented to trial courts by motion for post-conviction relief under Fla. R.Crim.P. 3.850, than to seek such relief by appeals, especially where a sentence may be improper or illegal in some respect that is patent under the law. However, on authority of Noble v. State, supra, we have here considered the question presented on this appeal, and hold that in the sentences that were imposed the defendant was entitled to credit for the period spent by him in State custody as above described, and that failure of the trial court to grant such credit in the sentences was error.

The cause is remanded to the circuit court with direction to revise the sentences to give the defendant credit in this connection, for the period of time which the court shall find to be applicable.

It is so ordered.


author: MOORE, Judge.

text:
    JOHN CRESCENT, INC., and Belmont Holding Corp., Appellants, v. Theodore SCHWARTZ, Collins E. Peterson et ux., Appellees.
    No. 77-2343.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied May 8, 1980.

      Robert L. Wunker of Grimditch, Bentz, Witte & Wunker, P. A., Pompano Beach, and Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellants.
    Richard B. Mateer of Koski, Mateer & Gillespie, P. A., Boca Raton, for appellees.
   MOORE, Judge.

This is an appeal from a final order vacating a judicial sale and setting aside a certificate of title issued to the appellant, John Crescent, Inc., the purchaser at a foreclosure sale. The appellees, Collins E. Peterson and Margaret E. Peterson, were husband and wife and owners of a marital home encumbered by a second mortgage in favor of the appellee, Theodore Schwartz.

When the Petersons were in substantial default on their mortgage payments, Mr. Schwartz filed a complaint to foreclose the mortgage. Service of process was perfected upon each of the Petersons by service upon Mrs. Peterson who acknowledged receipt of process, but later testified that she was under the belief that the service related to a matter other than the foreclosure action. After holding the papers which she received for one day, she then threw them away without notifying her husband that she had received them. Since the appellees failed to respond to the complaint, the mortgagee obtained a summary final judgment foreclosing the mortgage and directing a judicial sale of the home. Neither of the Petersons appeared at the judicial sale.

Appellants argue the trial court erred in vacating the judicial sale and setting aside the certificate of title, contending that ap-pellees failed to allege a sufficient legal or factual basis to support such a ruling. The issue before us is whether a wife’s failure to notify her husband of pending proceedings, when the wife is suffering from an “emotional condition of unresolved anxiety”, is sufficient cause to set aside a judicial sale and vacate a certificate of title. We hold that it is not and reverse.

Upon receipt of appellants’ motion for writ of assistance and notice of hearing, the appellees immediately filed their motions to set aside the default judgment and the sale and to vacate the clerk’s certificate of title. They alleged, in general terms, that the default judgment was entered through their own mistake, inadvertence, surprise or excusable neglect, and that they did not know of, or comprehend, the legal effect of the service of process. In two lengthy orders, the trial court made specific findings of fact. He found that the home had a fair market value of approximately $48,000, that the appellees had an equity in the home of approximately $30,000, and that the home was purchased at the foreclosure sale for $5,000. He concluded the sale price to be grossly inadequate. He also found that although Mrs. Peterson held a demanding job outside the home and appeared to be a responsible and capable individual, that she was suffering from an emotional condition of unresolved anxiety. From these findings he concluded that appellees were guilty of excusable neglect. Although he refused to set aside the default judgment, presumably because no meritorious defense was alleged, he did find that the wife’s condition constituted that kind of “mistake, accident or surprise” necessary to invoke the equity powers of the court. He therefore vacated the judicial sale and set aside the certificate of title.

In Arlt v. Buchanan, 190 So.2d 575, 577 (Fla.1966), the Supreme Court set forth the general principles of law pertaining to setting aside judicial sales when it stated:

The general rule, is, of course, that standing alone mere inadequacy of price is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result, (emphasis ours)

This principle of law was found to be controlling in American National Bank v. Lau, 268 So.2d 567 (Fla. 2nd DCA 1972) .where, in an analogous situation, the Court considered a motion to vacate an order confirming a judicial sale of property in a mechanic’s lien foreclosure. The motion was filed pursuant to Rule 1.540(b), Fla.R. Civ.P. because of an alleged grossly inadequate sales price combined with a sale tainted by “mistake, inadvertence, surprise or excusable neglect”. In rejecting these contentions, the Court said:

It remains to be seen therefore if appel-lee’s motion sufficiently alleges additional facts or circumstances which would support mistake, accident, surprise, fraud, misconduct or irregularity.
As to this, we observed at the outset that allegations of her mental incompetency relate more to the sufficiency of an excuse in failing to protect her allegedly infringed rights than they do to establishing any of the foregoing augmenting grounds for relief such as mistake, accident, surprise, etc. Accordingly, these allegations add little, if anything, to the alleged inadequacy of price.
Additionally, we can find nothing in ap-pellee’s original or amended motion to vacate which sufficiently alleges wrongdoing on the part of the appellants which gives rise to a prima facie showing of irregularity.

268 So.2d at 571.

Given the factual similarity between the present case and Lau, we find the rationale employed by the Second District to be highly persuasive. The failure of a party to take the required steps necessary to protect its own interests, cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused. The mere assertion by a party to a lawsuit that he does not comprehend the legal obligations attendant to service of process does not create a sufficient showing of mistake, inadvertence, surprise or excusable neglect to warrant the vacating of a final judgment. See, Claffey v. Serafino, 338 So.2d 270 (Fla. 2nd DCA 1976). In the present case, it was precisely the failure of the appellee-wife to comprehend and act upon the service of process made upon her that resulted in the judicial sale. As in Lau, supra, this relates more to the sufficiency of an excuse in failing to protect their rights than it does toward establishing the grounds for relief such as mistake, accident, surprise, etc.

It is also significant that in all of the cases cited by the appellees in support of their position, relief was granted because of the misconduct, wrongdoing or negligence of someone other than the party seeking relief. See, for example, Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916); Florida Fertilizer Mfg. Co. v. Hodge, 64 Fla. 275, 60 So. 127 (1912); Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905); Maulé Industries, Inc. v. Seminole Rock and Sand Co., 91 So.2d 307 (Fla.1956); Van Delinder v. Albion Realty and Mortgage, Inc., 287 So.2d 352 (Fla. 3rd DCA 1973). Appellees have not cited, nor are we cognizant of, any authority which would support the proposition that a party can gain relief from a judicial sale solely by reference to that party’s own lack of diligence.

Although a court, in the exercise of its equity jurisdiction, may vacate a judicial sale and quash the issuance of a certificate of title in order to render justice and achieve fairness, his discretion is not unbridled. A grossly inadequate price coupled with the sort of exceptional circumstances set forth in Arlt, supra, will serve to vacate a judicial sale only where the requisite degree of proof establishing such conditions is submitted by the party seeking relief. The record in the present case reveals that the able trial judge based his ruling solely on the appellee-husband’s failure to appear at the judicial sale. There were no allegations, nor was there any proof, of irregularity concerning the sale. We find the proof totally insufficient to support the actions of the trial court and the vacating of the sale and setting aside the certificate of title to be a gross abuse of his discretion.

The decision of the trial court vacating the judicial sale and setting aside the issuance of the certificate of title is reversed and this cause is remanded with instructions to enter an order consistent with this opinion.

DOWNEY, C. J., and BERANEK, J., concur.


text:
    LAUDERDALE NORTH PROPERTIES, INC., a Florida Corporation, Appellant, v. SEACREST HOMES, INC., a Florida Corporation, Appellee.
    Nos. 77-2001, 78-116.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied May 7, 1980.

      Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Bruno L. DiGiulian and John B. DiChiara of DiGiulian, Spellacy & Bernstein, Fort Lauderdale, for appellee.
   PER CURIAM.

Following trial the jury returned two verdicts, one in favor of defendant on plaintiff’s claim and the other in favor of defendant-counterclaimant on its claim, and judgments were entered.

Thereafter the court entered its order denying plaintiff-counterdefendant’s motion to vacate the verdicts, motion for directed verdict and in the alternative for new trial; in the same order the court granted defendant-counterclaimant’s ore tenus motion to amend its pleadings.

After consideration we affirm the two final judgments and the post trial order allowing amendment of the pleadings. The awards of attorneys’ fees to the defendant for the defense of the claim of the plaintiff and to the defendant on its counterclaim, however, bear examination.

In its affirmative defense the defendant alleged “[t]hat the promissory note sued upon was executed in connection with a purchase money mortgage, both of which were executed simultaneously, the agreement between the parties being that the mortgagee would, in the event of the default in payment by the mortgagor, seek only the recapture of the land by foreclosure of the mortgage . . .

In its counterclaim the defendant alleged a contract between the parties for the purchase of the land which was the subject of the aforesaid note and mortgage, which contract provided that plaintiff would convey the property in a fully developed condition; that plaintiff breached the contract by failing to provide the requisite underground electrical system and wiring; and that as a result of the breach defendant was forced to incur the cost of completing the development of the land.

Post trial the court entered its order permitting an amendment to the affirmative defenses and the counterclaim, pursuant to Florida Rule of Civil Procedure 1.190(b), to include the allegation that the defendant-counterclaimant was induced to enter into the contract for the purchase of the real estate, promissory note and mortgage upon the contemporaneous oral agreement with and representation by the plaintiff-counter-defendant that in the event of a default the plaintiff would not sue on the note but would resort only to a recapture of the title to the real estate, and that but for such oral agreement and representation the defendant-counterclaimant would not have entered into the contract for purchase, nor would it have executed the note and mortgage at closing. Similarly, the court permitted an amendment to the counterclaim. The court noted in its order that the issue of inducement was tried and evidence offered and received thereon at trial.

The contract of sale and purchase provided that “[i]n the event of litigation arising out of or with respect to the terms of this contract, the prevailing party shall be entitled to all costs thereof, including attorneys’ fees.” It was upon this language that the court awarded attorneys’ fees to the defendant and counterclaimant.

Appellant’s position is that the defendant having convinced the jury that the provisions of the note were unenforceable the contract was in effect rescinded for all purposes. Appellee countered by saying it did not pray for rescission, but merely alleged and proved that a prior contemporaneous oral agreement was entered into which constituted a limitation on the remedy and not the right to enforce the note. We adopt the argument of the appellee.

Appellant further contends that there was no statutory or contractual basis for the award of the fees; appellee relies on the contract terms set out above.

For the doctrine that there is a limitation upon the parol evidence rule that parol evidence of a matter of inducement is admissible where it is shown that except for the oral agreement the written contract would not have been executed, appellee depends on Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1935); Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1965); and Healy v. Atwater, 269 So.2d 753 (Fla. 3d DCA 1972).

A reference to the contract provision above shows that it speaks of “the terms of this contract.” At first blush it might seem that the attorneys’ fees awarded to the defendant for the defense of plaintiffs claim came within the terms of the contract, but on examination it appears that the contemporaneous oral agreement defendant alleged, and proved, was a separate and distinct agreement to induce defendant to enter into the written contract to purchase, not merged in such contract, and thus outside its provision for attorneys’ fees. The award for attorneys’ fees to defendant for the defense of the claim of the plaintiff should be and is reversed.

On the other hand, we hold that the award to the defendant on its counterclaim clearly was the result of “litigation arising out of or with respect to the terms of this contract,” and was proper.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, C. J., BERANEK, J., and WARREN, LAMAR, Associate Judge, concur.


author: LETTS, Judge.

text:
    Richard COLE, Appellant, v. Nancy J. COLE, Appellee.
    No. 78-2395.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied May 6, 1980.
    Sheridan K. Weissenborn of Papy, Duval, Poole & Usich, Coral Gables, for appellant.
    Alan E. Fallik, Pembroke Pines, for ap-pellee.
   LETTS, Judge.

This cause is affirmed upon the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

HERSEY and GLICKSTEIN, JJ., concur.


author: SHIVERS, Judge. MASON, EARNEST E., Associate Judge,

text:
    Thomas HICKS, Richard A. Riggins, and Freddie Hicks, Appellants, v. STATE of Florida, Appellee.
    Nos. MM-54, MM-82, and MM-100.
    District Court of Appeal of Florida, First District.
    April 8, 1980.
    Rehearing Denied May 8, 1980.
    John D. C. Newton, II, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

All three appellants were charged by information with the aggravated battery and with the attempted robbery with a deadly weapon of one James Johnson. The two count information provided in material part: “COUNT ONE: Appellants ‘. . .did intentionally or knowingly

cause great bodily harm, permanent disability or permanent disfigurement upon said James Johnson by hitting the said James Johnson on the head with a deadly weapon, to-wit: a board, contrary to Section 784.045(l)(a), Florida Statutes, and as to COUNT TWO, ... did unlawfully by force, violence, assault or putting in fear, attempt to take certain property, to-wit: money, the property of James Johnson as owner or custodian, from the person or custody of said owner, and in the course of committing said Robbery, used a deadly weapon, to-wit: a board, in violation of Florida Statutes 812.13 and 777.04.’ ”

Following a jury trial, the jury returned verdicts of guilty under both counts. The court adjudicated appellants guilty of aggravated battery and attempted robbery with a deadly weapon. The appellants were sentenced to serve concurrent terms of imprisonment on each count.

The offense occurred in April, 1978, in an alley near the Grand Hotel and Stomping Grounds Bar in Pensacola. The victim was hit from behind on the back of his head with a board. The victim testified on direct examination by the State that he fell down after he was hit with the board and that “two men were on him.” There was no evidence that either of the two men who jumped on the victim was armed with any type weapon. The victim fought off the men with a pocket knife. The board was not involved in this fight. The evidence showed that the victim was carrying a size-able sum of money and that robbery was the motive for the attack.

Section 775.021(4), Florida Statutes, provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively, (emphasis added)

We are of the opinion, and so hold, that the aggravated battery was a category four lesser included offense of the attempted robbery with a deadly weapon. Category four

comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense.

Brown v. State, 206 So.2d 377, 383 (Fla. 1968). Cf. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

The only deadly weapon involved in the incident was the board. The only use made of the board was in striking the victim from the rear. There was no way to prove the attempted robbery with a deadly weapon without proving the aggravated battery. An example of a category four offense is found in Brown v. State, supra, 206 So.2d at 383:

if the information charged “assault with a deadly weapon with intent to commit robbery,” then “aggravated assault” — assault with a deadly weapon— would be a lesser included offense.

The facts of McClendon v. State, 372 So.2d 1161 (Fla.App. 1st DCA 1979) distinguish it from this case. McClendon was convicted of several counts including two counts of robbery and one count of aggravated battery. The pertinent facts in McClendon are as follows:

All of the charges grew out of a January 15,1978 breakin at the isolated trailer residence of elderly, blind C. M. “Chick” Miller. Miller’s housekeeper Ida Gebhart, there cooking supper, testified that she saw four men enter the trailer, then the first man, whom she identified as appellant, “grabbed Mr. Miller and knocked him down on the floor . . ., dragged him across the trailer . . ., and started fighting with him and told him to shut up.” Miller testified that appellant came bursting in the door and “shot me in the hand and hit me over the head with some object . ., and knocked me down on the floor, . . . pulled me down and ransacked my pockets and took what little money that I had [$20] and my knife,” then “put the gun barrel to my temple and said, ‘shut up or I will blow your brains out.’ ”

372 So.2d 1161

McClendon contended on appeal that the aggravated battery was a lesser included offense of the robbery. The Court disagreed, finding that “the aggravated battery was a complete and separate crime from the robbery and that the shooting of Miller was not an essential element in the robbery charge.” 372 So.2d at 1162.

The shooting of Miller proved the aggravated battery in McClendon. This shooting was unnecessary to prove the robbery. The elements of taking property from the person of another by force, violence, assault or putting in fear necessary to prove robbery could have been proven by: (1) the hitting of the victim with an object; (2) the dragging of the victim across the room; (3) the fighting with the victim; or (4) the threatening of the victim with the gun.

Under the facts of this case, the elements necessary to prove attempted robbery could have been proven when the two men jumped the victim. However, to prove attempted robbery with a deadly weapon, it was necessary to prove the aggravated battery.

The respective convictions for aggravated battery are vacated.

In light of the disposition made herein, the appellants’ attack on the constitutionality of Section 775.021(4), F.S.1977 need not be considered.

Reversed and remanded with directions to set aside the conviction of aggravated battery.

McCORD, J., concurs.

MASON, EARNEST E., Associate Judge, dissents with opinion.

MASON, EARNEST E., Associate Judge,

dissenting:

I respectfully dissent under authority of McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979). In my judgment the offenses were separate and distinct offenses for the reason that the aggravated battery charge is not a lesser included offense of attempted armed robbery as the latter offense is charged in Count Two of the information. This is true because there is no allegation in Count Two that appellants actually hit the victim with the deadly weapon. Therefore, it was not necessary to prove Count One in order to prove Count Two. Attempted robbery with a deadly weapon as charged in Count Two could have been proven by threatening the victim with such weapon without actually committing a battery upon him.

Since the offenses were separate and distinct the trial court was correct in considering them as such, and the convictions of aggravated battery should not be set aside or vacated.


author: ERVIN, Judge.

text:
    Eugene Rogers HEATH, Appellant, v. STATE of Florida, Appellee.
    No. PP-286.
    District Court of Appeal of Florida, First District.
    April 8, 1980.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Heath appeals his conviction for uttering a forged check, arguing that the evidence was insufficient to support the conviction. We agree the state failed to present sufficient evidence of Heath’s knowledge that the check found in his possession was forged, an essential element of the offense, and reverse.

Three days before Heath caused the check to be cashed, a truck belonging to Tim Arini, the owner of the check, was burglarized, and Arini’s checkbook was taken from it. At trial, Arini identified the check, bearing his name as the maker, made payable to Heath, and endorsed by Daniel Mady.. Arini denied both signing his name and knowing Heath. Mady testified that at Heath’s request he cashed a check at a Jacksonville bank because Heath, a visitor, did not have a local account.

Detective Lee, a defense witness, testified that the check was neither processed for fingerprints nor submitted for a handwriting analysis. Appellant’s explanation for his possession of the check was that, while hitchhiking into Jacksonville, he was given a ride by a man who identified himself as Tim Arini. Heath stated he sold his tent to the man in exchange for the check. At the conclusion of all the evidence, appellant’s motion for judgment of acquittal was renewed and denied.

To convict for uttering a forgery, the state had to prove that Heath knew the check was forged and that he had it cashed with that knowledge and an intent to defraud. The state proved only that the check was forged and that Heath had possession of it and caused it to be cashed. There was no evidence, circumstantial or direct, of guilty knowledge. Possession of the recently stolen check did not give rise to a presumption that Heath uttered a forgery. See Graham v. State, 229 So.2d 616 (Fla. 3d DCA 1969) and Taylor v. State, 241 So.2d 426 (Fla. 3d DCA 1970). A conviction of uttering a forgery requires a different standard of proof than that required for conviction of the theft-related crimes. In Graham and Taylor, the courts concluded that the presumption did not apply where the offense charged was receiving stolen goods. We believe the element of knowledge which the state must prove for that crime is similar to the element of knowledge it must prove to convict for uttering a forgery. See Taylor, supra, where the two crimes and the proof of knowledge required to convict under each were compared.

On the record before us, it is clear the state presented no evidence that Heath knew the check was forged. See Hill v. State, 209 So.2d 689 (Fla. 1st DCA 1968). Therefore, the judgment of conviction and sentence are reversed, and, because the evidence is insufficient to sustain the conviction, the cause is remanded with directions that Heath be discharged. See McArthur v. Nourse, 369 So.2d 578 (Fla.1979).

MILLS, C. J., and SHIVERS, J., concur.


author: GLICKSTEIN, Judge.

text:
    Francis E. FRAZIER and Jesse Frazier, Appellants, v. STANDARD GUARANTY INSURANCE COMPANY, etc., Appellee.
    No. 78-2359.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.

      Robert Q. Wyckoff, Jr., of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appel-lee.
   GLICKSTEIN, Judge.

Francis E. Frazier and Jesse Frazier appeal from a final judgment entered against them in an action filed by Standard Guaranty Insurance Company for declaratory judgment.

The issue before us is whether the record reflects substantial competent evidence to support the trial court’s decision that the insurance policy issued by Standard Guaranty Insurance Company to Francis E. Frazier was cancelled as of February 29, 1976. We conclude that there is and affirm.

The parties’ pre-trial stipulation recites the following stipulated facts:

1. That on or about November 26, 1975 a policy of automobile liability insurance was issued by STANDARD GUARANTY INSURANCE COMPANY to FRANCIS E. FRAZIER, under policy No: FA 2 71 50.
2. That the policy of insurance as aforesaid was issued to FRANCIS E. FRAZIER, 1210 Palm Beach Lakes Blvd., Apt. A-6, West Palm Beach, Florida 33401, said address appearing on the face sheet of the policy of insurance.
3. That prior to June 30, 1976, STANDARD GUARANTY INSURANCE COMPANY mailed a notice of cancellation to FRANCIS E. FRAZIER, 1210 Palm Beach Lakes Blvd., West Palm Beach, Florida, 33401. That said notice of cancellation did not include the apartment number A-6 of FRANCIS E. FRAZIER as same appeared upon the face sheet of policy of insurance.

While not stipulated, additional facts appearing in the record are that Francis and Jesse, his brother, were named insureds under the policy and that notice of cancellation was sent because the insureds never provided the insurer with Jesse Frazier’s current Florida driver’s license number. Jesse had no Florida license; it was the insurer’s requirement that he have one.

Jesse was injured while in Francis' automobile in June 1976. Because the accident involved an uninsured motorist, Jesse made demand for uninsured motorist benefits under Standard’s policy. The insurer refused to arbitrate Jesse’s claim and brought the present action for declaratory judgment to have the court determine whether the policy was in effect when Jesse was injured.

The trial court, in deciding the policy was cancelled on February 29, 1976, expressly found that Standard’s notice of cancellation to Francis was sufficient and that Francis received actual notice of the cancellation. Francis testified that he never received the notice. Marie Ray, an employee of the insurance agency which sold Francis the policy, testified that Francis telephoned and wanted an explanation for the cancellation notice. She explained the reason for the cancellation and told him if he got the needed information to the insurer before the cancellation date, the policy would be reinstated. Finally, she testified that she mailed Francis a premium refund check of $22.60, which Francis admits cashing. He stated he thought it was a reimbursement resulting from an overcharge on the premium.

It can be seen from the foregoing that while the insurer did not properly address the notice of cancellation by omitting the apartment number, the record reflects substantial competent evidence that Francis actually received the notice. The sole issue before us is whether actual notice is sufficient notice of cancellation.

The insurer maintains that Section 627.728(5), Florida Statutes (1975), governs. The statute says:

Proof of mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.

The insured, relying on a decision of the Michigan Court of Appeals, Dorsey v. Michigan Mutual Liability Co., 72 Mich.App. 607, 250 N.W.2d 143, 145 (1976), contends there must be strict compliance with that statute before cancellation is effected, that actual notice is immaterial if there has been noncompliance. The Michigan statute permitted sending a notice of cancellation by certified mail, return receipt requested, or delivery. The insurer mailed the notice by first class mail and the insured received it. The court held:

The salutary goal of the notice statute, that is, the desire to avoid embroiling the courts in needless litigation on the question of whether or not a cancellation notice had been received, see, e. g., Gooden v. Camden Fire Insurance Association, 11 Mich.App. 695, 162 N.W.2d 147 (1968); Raptis v. Safeguard Insurance Co., 13 Mich.App. 193, 163 N.W.2d 835 (1968), can best be served by requiring an easily applied, uniform method of mailing such notices. This is what the Legislature intended by enacting Section 3224(2) and this is the rule we apply today.
The insurer next argues that, where the insured admits receipt of the cancellation notice sent by - first class mail, the alternative requirement of “delivery” under M.C.L.A. § 500.3224(3); M.S.A. § 24.13224(3) is satisfied and the cancellation is effective. We reject this argument. Michigan Mutual would have us contort the plain meaning of the statute to read as follows: ‘For the purpose of this chapter only, first class mailing of such written notice shall be the equivalent of mailing by certified mail, return receipt requested.’ If the Legislature had intended such a construction, it could have inserted language to that effect. Were we to read in the meaning urged by the insurer, we would subvert the goal of the statute and once again invite battle in the courts on the question of whether the notice was received by the insured. A more reasonable interpretation of the second sentence of Section 3224(3) is that personal service or hand delivery to the insured obviates the need for mailing by certified mail, return receipt requested.

While the insured’s position and the logic of the Michigan court are appealing, we nevertheless reject their conclusions. The better conclusion, we are convinced, is that actual notice is sufficient • notice. Section 627.728(3)(a), Florida Statutes (1975) says:

No notice of cancellation of a policy to which this section applies shall be effective unless mailed or delivered by the insurer to the named insured and to the named insured’s insurance agent at least 45 days prior to the effective date of cancellation, except that when cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation accompanied by the reason therefor shall be given. No notice of cancellation of a policy to which this section applies shall be effective unless the reason or reasons for cancellation accompany the notice of cancellation.

Notice, not the method of the notice, is the keystone of the statute. See Bowen v. Mer-lo, 353 So.2d 668 (Fla. 1st DCA 1978). Actual receipt means that there has been a delivery — postal or manual.

Our holding is consistent with the underlying purpose of notice of cancellation, which is to enable the insured to obtain other insurance “before he is subjected to risk without protection.” Cat ’N Fiddle, Inc. v. Century Insurance Co., 213 So.2d 701 (Fla.1968), judgment conformed to 214 So.2d 503 (Fla. 3d DCA 1968).

There being sufficient evidence for the trial court to find actual notice, we affirm.

AFFIRMED.

LETTS and HURLEY, JJ., concur.