text:
    Norman E. MURPHY and Sarah S. Murphy, Appellants, v. COMMUNITY CENTERS CORPORATION, a Georgia Corporation, Appellee.
    No. UU-171.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Roderic G. Magie, Pensacola and Sam Spector, Tallahassee, for appellants.
    M. J. Menge, Pensacola, for appellee.
   MASON (Circuit Judge, Retired), Associate Judge.

This is an appeal from a final judgment of the Circuit Court of Escambia County which granted Appellee’s (defendant below) motion for entry of final judgment at the close of Appellants’ (plaintiffs below) case.

The Murphys filed a complaint against Community Centers Corporation for damages and rescission arising out of a contract to sell a parcel of land in Pensacola. The complaint alleged that plaintiffs contracted to buy and defendant contracted to sell the parcel in question, and that in the contract defendant agreed to install a sanitary sewer and water line to the property being sold and to deliver a letter at closing stating that private sewer treatment facilities were available with sufficient capacity to service the property. Plaintiffs alleged that defendant breached that paragraph of the contract, resulting in considerable damages to plaintiffs. After plaintiffs presented their evidence on final hearing, the trial court granted defendant’s motion for judgment, stating that he was of the opinion that the plaintiffs had not proved a case for damages in that they did not establish a cause of action by the greater weight of the evidence. He also stated that plaintiffs failed to prove that they had ever made a demand upon the defendant to perform the contract’s requirement to install the sewer and water line to the property, and to furnish the sewer treatment facility.

The Murphys purchased the land upon which they purported to build a building to be leased to Southern Bell Telephone Company. Community’s property was the only site available for development at the time for the purpose needed in that it was adjacent to University Mall Square, which had a private sewer treatment facility available, there being at the time a sewer moratorium imposed by the City in Pensacola. The mall’s private treatment facility was not affected by the moratorium and was available for use by adjacent parcels of land. Thus, the parties realized that the Murphys could develop the property only if permitted to utilize defendant’s private sewer facility located upon the mall square. The contract acknowledged the moratorium and provided for a tap fee and a monthly service fee for use by the plaintiffs of defendant’s private treatment facility.

At the time they purchased the land, the Murphys had an architect design a building suitable for Southern Bell’s needs. The sales contract was executed in April of 1976, and the architect testified that the building could have been finished within eighteen months thereafter. Conveyance of the property to the Murphys was made in June of 1976.

During the late summer of 1976, Southern Bell raised the question as to the sufficiency of the treatment plant to the plaintiffs and this concern was conveyed to defendant’s vice-president. The latter admitted that there were “minor problems”, stating that his company was in the process of straightening them out, and that the plaintiffs should not be too concerned. However, Mr. Murphy testified that the problem was not solved and that he finally demanded verbally to the defendant’s representative that it resolve the sewer problem and fulfill its contractual obligation to furnish adequate sewer treatment facilities to the purchased property. Upon such demand to defendant, its vice-president stated that Community wished to wait for the City of Pensacola’s sewer to become available, or until the Murphys actually had need of the service. Community’s president testified that its facility was constructed to last only six months and that it was assumed that the sewer moratorium imposed by the City would be lifted by that time, and that the Mall could hook up to the City sewer system. In the spring of 1977, Community’s sewer facility developed serious problems with its sprayfield. The Mall had to hook up to the City sewer on a temporary emergency basis and adjacent stores had to resort to septic tanks.

In the meantime Southern Bell became increasingly concerned about the private sewer treatment facility. Subsequently, it informed the Murphys that for that reason they could not proceed on the site which it had agreed to lease. The plaintiffs finally realized that they could not develop the property purchased from the defendant because of the sewer moratorium and the failure of the defendant to comply with its contractual obligation to furnish adequate sewer treatment facilities to service the property sold by it to the plaintiffs. Murphy testified that he unsuccessfully attempted to sell the property. Then followed this suit.

It is upon this record that the trial court concluded that plaintiffs had not established their case “by the greater weight of the evidence”, and further that plaintiffs had failed to prove that they had made of the defendant a demand for performance. Thereupon, he granted defendant’s motion for judgment.

We reverse. In our opinion there was before the trial court at the conclusion of plaintiffs’ case a prima facie case of breach of contract and the trial court erred in granting, in effect, a directed verdict for the defendant. A motion for judgment in a judge trial is the counterpart of a directed verdict in a jury trial. The trial court in a non-jury case may not weigh and judge the credibility of the evidence when ruling upon a defendant’s motion for involuntary dismissal or final judgment made at the close of the plaintiffs’ case. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Service Facilities Corporation v. Lanier, 371 So.2d 1083 (Fla.App.1979). Concluding, as we do, that a prima facie case of breach of contract was made by the plaintiffs, the trial court could not have granted the motion without weighing the probative effect of the evidence. In fact the trial court did weigh the evidence in granting the motion, for he stated that plaintiffs had not carried their burden by the greater weight of the evidence.

It may be that at the close of all the evidence presented by both sides, the trial court could properly conclude that defendant had overcome the prima facie case made by the plaintiffs and then determine that plaintiffs had failed to prove their case by the greater weight of the evidence. However, the plaintiffs are entitled to have their evidence weighed in the light of the evidence adduced by the defendant, and the trial court is not free to weigh the evidence at the close of the plaintiffs’ case.

We refrain from addressing the merits of the case at this time and rest our decision instead on the narrow ground of the propriety of the order of the trial court on defendant’s motion for judgment made at the conclusion of plaintiffs’ case in chief. Curls v. Tew, 346 So.2d 1242 (Fla.App. 1st 1977).

Reversed and remanded for further proceedings in the trial court in accordance with the views herein expressed.

SMITH and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WATERMAN MEMORIAL HOSPITAL and Argonaut Insurance Company, Appellants, v. Voncille CLEMMONS, Appellee.
    No. UU-290.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Wendell J. Kiser of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

We affirm the Deputy Commissioner’s basic award for attendant care and costs. We note, however, that his order provided that the attendant care award should run from February 22,1979 to date and continuing without any provision adjusting for time that claimant’s attendant was not providing assistance to claimant. The claimant testified that she spent six weeks in Maine at the end of 1979, during which time she was not assisted by her attendant. Therefore, this case is remanded so that the Deputy Commissioner can modify his order to reflect that the attendant shall not be paid for the time that the claimant was in Maine.

ERVIN, BOOTH and JOANOS, JJ., concur.


text:
    Judith LEVIN, Appellant, v. DEPARTMENT OF EDUCATION, DIVISION OF UNIVERSITIES, Florida State University, Appellees.
    No. UU-314.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Algia R. Cooper, Knowles, Randolph & Cooper, Tallahassee, for appellant.
    Gerald Jaski, Wilfred C. Varn and Mary Lee Sweet, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellees.
   PER CURIAM.

Levin, having been terminated by the University as a University Police Officer I, appeals the order of the Career Service Commission upholding the dismissal, urging that she automatically attained permanent status in this position because her performance evaluation was not completed in compliance with Fla.Admin.Code Rule 22A-9.03(2) and (6), requiring evaluations to be completed by the immediate supervisor. We affirm this point because there are sufficient facts in the record to support the conclusion that appellant’s evaluator, the squad leader, was her immediate supervisor although another supervisor, the assistant squad leader, worked with her more often because of the shift arrangements. However, the squad leader evaluated all employees under him, including appellant and the assistant squad leader, and most importantly, on numerous occasions personally observed appellant on the job. He was also kept regularly advised of her performance by his assistant and other officers. Therefore, we find compliance with the letter and spirit of the rule because the squad leader maintained sufficiently direct contact with the appellant enabling his designation as her immediate supervisor for the purpose of preparing her performance evaluation.

Appellant next urges that Rule 22A-7.04(1) should be construed to require the evaluation to take into account all months of the probationary term, here, including Levin’s first three months during which she was in police officer training school. The rule does not mandate such a construction and we decline to impose it. Appellant’s excellent performance in school seems to have little relevance to her inability to satisfactorily perform her job out in the field. Rather, the rule requires a worker to complete the probationary period satisfactorily before permanent status is reached, with satisfactory service presumed unless an appropriate evaluation is included in the personnel file. Therefore appellant’s second point is affirmed.

Point III contends the Commission erred in finding just cause to discharge appellant as Personnel Aide I, the permanent career service position she left to take her new position. However, as conceded by appel-lee, the Commission’s order approved the University’s action in discharging appellant for just cause only as a University Police Officer I. Therefore, we hold any matters concerning Levin’s Personnel Aide job are not at issue here. Other collateral issues raised under Point III are without merit.

AFFIRMED.

McCORD, SHIVERS and THOMPSON, JJ., concur.

      . For purposes of disposing of this case, we accept the parties’ position that because Levin held permanent status in a prior job, she could be dismissed by the University as a Police University Officer I only with good cause, with the dismissal appealable to the Career Service Commission, although Levin was terminated before her probationary period was over. We specifically do not decide whether or not the law requires this result.


author: McCORD, Judge.

text:
    DEPARTMENT OF TRANSPORTATION, Division of Risk Management, Appellants, v. Charlie E. FERRELL, Appellee.
    No. VV-232.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Barry D. Graves of Ritch & Graves, Gainesville, for appellants.
    Eric E. Wagner, Ocala, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a deputy commissioner’s order finding that appellee/claimant remains temporarily totally disabled and continues to be entitled to temporary total disability benefits. We reverse.

Appellee strained his back in a work-related accident on February 21, 1978. His treating physician, Dr. Freed, diagnosed a strain and was of the opinion that appellee reached maximum medical improvement by February 1979 with a 5% permanent partial impairment. An orthopedic surgeon who examined appellee on December 28, 1978, diagnosed a back strain and was of the opinion that appellee had reached maximum medical improvement by December 28 with a 5% permanent partial impairment. In February 1979, appellee suffered a substantial loss of vision because of a sudden onset of cataracts — a condition unrelated to his accident.

After the hearing, appellee deposed Dr. Freed again on February 26, 1980. In that deposition, Dr. Freed stated that he was concerned about appellee being in a depressed state. He stated that if appellee continued to show signs of depression, psychiatric advice might be of value. Dr. Freed did not testify that the possible psychiatric condition was disabling nor did he state that he had receded from his prior opinion as to the maximum medical improvement date. On the basis of Dr. Freed’s second deposition, the deputy commissioner concluded that appellee remains temporarily totally disabled and ordered benefits accordingly.

The evidence in the record does not support the deputy commissioner’s finding. According to all of the medical testimony, appellee had reached maximum medical improvement from his injury. No doctor testified that the possible psychiatric condition was disabling or resulted from the accident. Therefore, the award of temporary total disability benefits is reversed. Because of the conflict in the doctors’ testimony as to the actual maximum medical improvement date, the case is remanded to the deputy commissioner for a determination of that date and for further proceedings, if necessary, to fully dispose of appellee’s claim.

Reversed and remanded for entry of a new order consistent with this opinion.

LARRY G. SMITH, J., and LILES, WOODIE A., (Retired) Associate Judge, concur.


text:
    SUWANNEE RIVER ECONOMIC COUNCIL, INC., and Aetna Casualty & Surety Company, Appellants, v. Alvinia Eugenia Dutton LOCKE, Appellee.
    No. VV-233.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    R. Franklin Ritch of Ritch & Graves, Gainesville, for appellants.
    Michael Bergen of Bergen & Roberts, Lake City, for appellee.
   PER CURIAM.

Appellants, employer/carrier, appeal from a workers’ compensation order awarding appellee, claimant, temporary total disability and medical benefits. We reverse.

There is evidence in the record to support a finding that on or about August 5, 1979, appellee injured herself in a work-related accident while employed as a laborer by appellant, Suwannee River Economic Council, Inc. The day after the accident, she was dismissed from employment for leaving the job site without permission. On August 10,1979, she was examined by a doctor, who diagnosed acute muscle strain but did not assess any temporary total disability. The doctor, in his report, noted that appellee was able to return to work on August 11, 1979. Appellee, herself, testified that she began looking for work “shortly after they dismissed me.” No evidence in the record supports a finding that appellee is or was temporarily totally disabled nor does any evidence in the record establish the necessity for future medical care.

REVERSED.

McCORD and SMITH, JJ., and LILES, WOODIE A., (Retired) Associate Judge, concur.


text:
    Hollis HORTON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1392.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Bennett H. Brummer, Public Defender and Kent Harrison Robinson, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980); Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980).


text:
    Robert Lee RICHBURG, Appellant, v. The STATE of Florida, Appellee.
    No. 80-348.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Paul Morris, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).


text:
    Arsenio JIMENEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-428.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    John Lipinski, Pollack, Komorowski, Cas-uso & McHale, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL and FERGUSON, JJ.
   PER CURIAM.

The order revoking the defendant’s probation under review is affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Randolph v. State, 292 So.2d 374 (Fla.3d DCA), cert. denied, 300 So.2d 900 (Fla.1974). The cause, however, is remanded to the trial court with directions to correct the clerical errors in the order of the revocation so as to reflect, in accord with the trial court’s oral ruling below, that the defendant violated his probation by possessing a firearm herein. See Roberson v. State, 358 So.2d 97 (Fla. 4th DCA 1978); Perry v. State ex rel. Mills, 357 So.2d 425 (Fla. 3d DCA 1978).

Affirmed as modified.


author: DOWNEY, Judge.

text:
    Martin G. BROOKS and Linda Jo Brooks, Appellants, v. Joel FLETCHER and Sidney Fletcher a/k/a Sydney Fletcher, his wife, Appellees.
    No. 78-1367.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Robert L. Gossett of Brooks, Bunin & Gossett, P.A., Hollywood, for appellants.
    David J. Schottenfeld of Kempner & Schottenfeld, Fort Lauderdale, for appel-lees.
   DOWNEY, Judge.

Appellants, Martin and Linda Brooks, seek review of a final judgment which determined a boundary dispute in favor of appellees, Joel and Sidney Fletcher, and quieted their title to certain property. We affirm the judgment.

In mid-1969 the Fletchers purchased Lots 35 and 36, Block 144, Hollywood Hills, in the City of Hollywood, and built their home thereon. Some months thereafter Mrs. Fletcher’s father, Robert Hannan, became interested in buying an adjacent lot, number 37. In order to improve said lot Han-nan found it would be necessary to obtain an additional ten feet from Lot 36 and thereafter Hannan built a house on Lot 37. Before construction of the house on Lot 37 Fletcher had a chain link fence erected on a line which an architect indicated to Fletcher was the new boundary line between Lots 36 and 37. The evidence would indicate that the parties considered the fence to be the property line until a dispute arose when Fletcher found a crew purportedly surveying Lot 37 over on his side of the fence. Fletcher ordered the crew off and called Hannan. At that point everyone was confused about the location of the boundary line. However, eventually Fletcher and Hannan agreed that the fence line would be the boundary line. Thereafter the Fletch-ers built a pool and deck in their backyard and landscaped it up to the fence. Hannan also landscaped his property up to the fence line. Neither Hannan nor any of appellants’ immediate predecessors in title ever objected that the fence line was not the boundary line between Lots 36 and 37.

Based upon the evidence, the trial court found the chain link fence line constituted the boundary between Lots 36 and 37, and the court quieted the Fletcher title to all of the property “lying beneath to the South and East of said fence.”

Appellants attack the trial court’s finding on several grounds, none of which has merit. The thrust of appellees’ contention is that the chain link fence was the boundary by agreement of the parties. At the time the parties agreed the fence should be replaced on that certain line (it had been taken down so that a survey could be completed) the Fletchers and Hannan were in doubt about the true location of the boundary. After considerable discussion, Mr. Fletcher and Mr. Hannan agreed the fence line should be the legal boundary line at the conclusion of the survey.

Where the boundary line between contiguous property is disputed, in order to establish the boundary by agreement the respective owners must agree on a certain line as the permanent boundary line and thereafter occupy their respective properties in accordance with that line. Watrous v. Morrison, 33 Fla. 261, 14 So. 805 (1894). The necessary elements to be proved are described most recently in King v. Carden, 237 So.2d 26 (Fla. 1st DCA 1970):

1) an uncertainty or dispute as to the true boundary line;

2) an agreement that a certain line will be treated as the true boundary line;

3) the subsequent occupation of both properties according to such line as the true boundary.

Applying the foregoing legal principles to this case, our study of the record reflects that there is substantial competent evidence to show the Fletchers proved the foregoing elements. We therefore conclude that the record supports the trial judge’s findings and conclusions.

Accordingly, the judgment appealed from must be affirmed.

AFFIRMED.

LETTS, C. J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Jack DORSON and Mary Dorson, his wife, Appellants, v. Gertrude DORSON, Sam Miller et al., Appellees.
    No. 78-2391.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Larry Klein and Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellants.
    Charles A. Nugent, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellees.
   PER CURIAM.

This appeal challenges an order distributing monies held in trust pursuant to a settlement agreement. We affirm.

The seeds of today’s controversy were sown in 1972 when appellants/plaintiffs filed an action for partition. In an effort to resolve the matter the parties entered into a settlement and trust agreement, two provisions of which are relevant to this appeal. The first called for an independent accounting of monies received and expended from May, 1955 to January, 1974. This provision was subsequently altered when the parties agreed to change the commencement date from May, 1955 to January, 1958. The second relevant provision required the accountant to furnish a copy of the accounting to each of the parties and, in turn, required the parties to file “... an objection to any item of expense allowed, any items of reimbursement credited or any computation of the amount due by any particular party.”

In accord with the agreement, the accountant rendered reports on October 4, 1973, February 22, 1974, and finally, on April 28, 1978. Each report listed a bottom line figure of monies owed to appellant Jack Dorson. The record reflects that upon completion of the accounting, each of the parties was properly notified and that no party filed an objection.

Appellee Gertrude Dorson filed a motion to compel disbursement in accord with the accountant’s computations. Appellants, Jack and Mary Dorson, objected, contending that Jack Dorson had expended $27,750 in 1956, and thus, they claimed, they were entitled to the full amount specified in the accountant’s report plus $27,750. The trial court disagreed, holding that under the terms of the settlement agreement appellant was obligated to file a timely objection to the accountant’s report, and his failure to do so constituted a waiver. We agree.

It is fundamental that “[a] stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Gunn Plumbing Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971). This is especially true of settlement agreements which are highly favored in the law. Pearson v. Ecological Science Corp., 522 F.2d 171, rehearing denied, 525 F.2d 1407 (5th Cir. 1975), cert. denied, 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976). See also 10 Fla.Jur.2d Compromise, Accord and Release § 9. Also applicable to settlement agreements is the rule that they are to be interpreted by the same principles governing the interpretation of contracts. Florida Education Association, Inc. v. Atkinson, 481 F.2d 662 (5th Cir. 1973).

Turning to the general principles of contract interpretation, we note the basic rule that “the intention of the parties to a contract will be ascertained from a consideration of the whole agreement.” Torcise v. Perez, 319 So.2d 41, 42 (Fla.3d DCA 1975). Secondly, “[a] contract will be construed according to its own clear and unambiguous terms. Cueto v. John Allmand Boats, Inc., 334 So.2d 30, 32 (Fla.3d DCA), cert. denied, 341 So.2d 290 (Fla.1976).

The settlement and trust agreement in the case at bar is a model of clarity. Its express purpose was to resolve “all controversies pending or which could be raised in said lawsuit.” Reading this together with the exact procedures set forth to register objections to the accountant’s computations, we have no difficulty in agreeing with the trial court that appellant is bound by his silence. The April 28, 1978 accountant’s report expressly notified appellant that the accountants “were also provided documentation to support a $27,750 disbursement by Jack Dorson on January 23, 1956 which has not been included in this report.” Appellants’ failure to file a timely objection to this report constituted a waiver of any claim for an amount greater than that which was specified in the report. Accordingly, the judgment of the trial court is affirmed.

MOORE, BERANEK and HURLEY, JJ., concur.


author: MOORE, Judge.

text:
    Paul Mark RYAN, as Trustee, Appellant, v. TOWN OF MANALAPAN, in Palm Beach County, a Florida municipal corporation; Roy W. Talmo; County of Palm Beach, a political subdivision of the State of Florida, Appellees.
    No. 78-2447.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.

      C. Robert Burns, of Burns, Middleton, Farrell & Faust, Palm Beach, for appellant.
    James McCartney Wearn, West Palm Beach, for appellee/cross appellant, Town of Manalapan.
    Charles Vitunac, West Palm Beach, for County of Palm Beach.
   MOORE, Judge.

In a declaratory judgment action, the appellant, Ryan, sought to have the rights and obligations of the parties to this litigation determined. He appeals the trial court’s orders of dismissal with prejudice in favor of the appellees, the Town of Manalapan (Town) and Palm Beach County (County). The denial of a motion to dismiss filed by the third appellee, Taimo, is not before us.

Although the Town and the County have cross-appealed “... to preserve for appeal consideration the additional grounds upon which it may have been proper to dismiss the complaint,” the main issue before us is whether a public body which acquires an interest in land by means other than eminent domain is bound by private restrictions governing the use of the land. On the authority of Board of Public Instruction v. Town of Bay Harbor I., 81 So.2d 637 (Fla.1955), we answer the question in the negative and affirm the orders dismissing the suit against the Town and the County. Accordingly, it is not necessary for us to consider the propriety of the cross-appeal or the points raised in it.

Assuming the facts alleged in the complaint to be true, as we must, the appellant is the owner, as trustee, of a strip of land consisting of several contiguous lots which comprise approximately 1044 feet of ocean frontage. The strip is bounded on the west by the Intracoastal Waterway (Lake Worth), on the east by the Atlantic Ocean, and is dissected by State Road AIA, which runs north and south. Immediately contiguous to the north is Talmo’s Lot 1 with the same east and west boundaries and 300 feet of ocean frontage. The deed to appellant’s property contains restrictive covenants limiting construction to single family dwellings on lots which have both a minimum of 150 feet of ocean frontage and which extend westerly to the Lake. After these covenants were established, the lot now owned by Taimo was conveyed subject to the same restrictions/

Until May, 1978, the Town had a comprehensive zoning plan which contained virtually the same restrictions. In the spring of 1978, however, Taimo, the Town and the County negotiated a land use plan which affected Talmo’s property for the common benefit of the three parties. The plan provided that the County would release its dedicatory rights to the north 66 feet of Talmo’s property for $70,000 to be paid by the Town and Taimo. Taimo agreed to convey to the County a pedestrian easement over the north 10 feet from AIA to the ocean. He also agreed to convey to the Town a strip of land consisting of a portion of the north 230 feet lying east of AIA and west of a proposed multi-family housing development. This site would be used for a town hall, fire or police station, or other municipal use. The Town agreed to re-zone the eastern half of the north 230 feet to be used by Taimo for multi-family housing and the south 70 feet east of AIA to permit construction of a one-family house.

After the agreement was substantially consummated, the appellant filed suit alleging that the land use plan for Talmo’s property violated the restrictive covenants applicable to it. The appellant contended that each of the following uses constituted a violation:

(1) The use by the County of the north 10 feet for purposes other than single-family dwelling,
(2) The use by Taimo of the eastern portion of the north 230 feet for multifamily housing rather than using the whole property east and west of AIA for singly-family dwelling,
(3) The use by Taimo of the east portion of the south 70 feet for single-family dwelling rather than using the whole property east and west of AIA and observing the 150 feet of ocean frontage requirement, and
(4) The use by the Town of a portion of the property for municipal purposes rather than single-family dwelling.

As stated earlier in this opinion, the sole issue before us is whether a public body which acquires an interest in lands by means other than eminent domain is bound by private restrictions governing the use of the land. Although Board of Public Instruction v. Town of Bay Harbor I., supra, involved land acquired by eminent domain, we see no distinction when the land is acquired by agreement or purchase. In either case the restrictive covenants do not “constitute property in those in whose favor such restrictions exist for which compensation must be made.... ” Id. at 639, and thus, the covenants are not enforceable against the public body. Accordingly, the trial court correctly dismissed the suit as to the public bodies and his orders should be affirmed.

Nevertheless, we consider the difference between acquisition by eminent domain and acquisition by agreement or purchase to warrant consideration of this question by the Supreme Court, and we therefore certify to the Supreme Court the following question as one of great public importance:

DO RESTRICTIVE COVENANTS AFFECTING THE USAGE OF LAND APPLY TO A PUBLIC BODY WHICH ACQUIRES THE LAND BY PURCHASE AS OPPOSED TO ACQUISITION BY EMINENT DOMAIN?
AFFIRMED and QUESTION CERTIFIED.

BERANEK and HURLEY, JJ., concur.

      . Appellees’ brief.


text:
    Keith O’Brian PONSELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-2683.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks review of a judgment adjudicating him guilty of the crime of burglary and a sentence of two years imprisonment. The issue on appeal is the adequacy of the evidence to prove the defendant’s guilt.

At approximately 3:30 a. m. the Greena-cres Police Department received a telephone call from a security alarm company reporting that an alarm had sounded at the Atlantis Skateway. The Greenacres police as well as several deputy sheriffs responded. Upon arrival Deputy Williams observed a person running from the north side of the building into a densely wooded area behind the Skateway building. Deputy Williams pursued this person and, although she heard movement in the wooded area, she did not apprehend the subject. Shortly thereafter Deputy Sheriff Stuckert arrived and, after being informed of Deputy Williams’ observations, he entered the woods with a trained police dog. He came upon a white male, 18 to 20 years of age, lying on the ground motionless. When ordered to arise the subject jumped up and ran. While chasing the subject the dog became entangled in the underbrush and consequently the subject disappeared.

Later, in searching the area, the police discovered an unoccupied automobile on a dirt road; the car had saliva marks on it thought to be those of the police dog. The vehicle was staked out and in approximately one hour a white male cautiously approached the vehicle. An officer confronted him and placed him in a police cruiser under arrest.

At trial Deputy Williams testified that the person she observed running from the Skateway building into the woods was not the appellant. She further testified that, while pursing the subject, she heard movements in the woods emanating from what appeared to be two distinct locations. It should be remembered that Deputy Stuc-kert’s first information upon arrival at the scene was garnered from Deputy Williams. According to Stuckert’s testimony the individual he confronted in the woods was wearing only a pair of blue jean cutoffs, while Williams testified the subject she saw fleeing from the Skateway was attired in a blue shirt and white pants. Although Stuc-kert testified that the person in the police car on the night in question was appellant, he could not swear that the individual in the police car was the same person he had earlier encountered in the woods. In fact, Stuckert testified he never saw the face of the person in the woods.

In addition to the foregoing, the State adduced evidence which showed that unauthorized entry into the Skateway building had been accomplished with a sledge hammer, knocking a large hole in a concrete block wall. Pinball machines inside had been tampered with but no latent finger prints were obtained; only fabric prints were found. The subject, whom Stuckert encountered in the woods, had socks covering his hands. A crime scene investigator testified at trial that, while these socks could have made the fabric imprints lifted from the premises, there was no way to test with accuracy whether these particular socks were indeed the origin of the prints.

At the close of the state’s case, the appellant moved for a judgment of acquittal on the grounds that the state had failed to prove a necessary element of the charged offense, identity, and therefore the evidence was insufficient for a finding of guilt. The motion was denied and thereafter the appellant took the stand and told an incredible story accounting for his presence in the area.

It is an elementary but fundamental principle of criminal law that the prosecution, in presenting a prima facie case, must establish beyond a reasonable doubt, the identity of the accused as perpetrator of the charged offense. See cases cited at 1 Wharton’s Criminal Evidence, § 16, note 64 (13th ed.). Where the state fails to meet its burden of proving each and every necessary element of the offense charged beyond a reasonable doubt the case should not be submitted to the jury and a judgment of acquittal should be granted. Weinshenker v. State, 228 So.2d 561 (Fla. 3rd DCA 1969), cert. denied 396 U.S. 973, 90 S.Ct. 462, 24 L.Ed.2d 441 (1969).

After an exhaustive review of the transcript, we conclude that the appellant was entitled to a judgment of acquittal at the conclusion of the state’s case. It appears to us that the state failed to present sufficient evidence to identify the accused as the perpetrator of the crime.

Accordingly, the appellant’s conviction is reversed and the cause is remanded with directions to discharge the appellant.

REVERSED AND REMANDED, with directions to discharge.

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


author: MOORE, Judge. LETTS, Chief Judge,

text:
    HIDDEN HARBOUR ESTATES, INC., a Florida not for profit corporation, Appellant, v. Arthur BASSO and Helen Basso, his wife, Appellees.
    No. 78-2688.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.

      Walter M. Meginniss of Crary, Buchanan & Meginniss, Chartered, Stuart, for appellant.
    Edna L. Caruso, West Palm Beach and Tooker & Gamba, P. A., Stuart, for appel-lees.
   MOORE, Judge.

Plaintiff, Hidden Harbour Estates, appeals from a final judgment denying its request for injunctive relief. Hidden Harb-our had sought to enjoin the appellees from maintaining a shallow water well on their property. We affirm.

Hidden Harbour Estates is a condominium development containing mobile homes situated on lots owned by the individual residents. In 1975, Hidden Harbour’s Board of Directors became aware of an increase in the salinity of the two deep well systems which supplied the water for the common usage of the unit owners. In May, 1975, the Board adopted a regulation that restricted lawn watering to one day per week while a member of the Board of Directors, Charles Burtoft, conducted a study of the water-salinity problem. Later in 1975, when the salinity of the well water decreased, the restriction was relaxed.

In November, 1975, the Bassos, who were owners of one of the mobile home units, applied to the Board of Directors for permission to drill a shallow well on their property. Such permission was allegedly required under the use restrictions in Article 13 of the Declaration of Condominium, which stated:

13.1. The use of the condominium will be in accordance with the following provisions, as long as the condominium exists:
a. No temporary or permanent improvements or alterations may be made to any lot, and no lot owner may change the appearance of any portion of the exterior of his mobile home or apartment without the written approval of the Board of Directors of the Association.

A decision on the Bassos’ request was not made until March, 1976, at which time it was denied, despite the fact that Burtoft had informed the Board that a shallow well would not affect the condominium water supply. The Board had three basic reasons, not articulated until the trial of this cause, for denying the Bassos’ request:

(1) The threat of increased salinity;

(2) Staining of sidewalks and other common areas of the condominium;

(3) The proliferation of more wells by other unit owners.

The Bassos nonetheless drilled a well in early January, 1977. On January 31, 1977, Hidden Harbour brought an action for in-junctive relief, alleging that the Bassos were in violation of the use restrictions of the Declaration of Condominium by drilling an unauthorized well. This action resulted in the judgment now appealed.

Before addressing ourselves to the merits of the trial court’s decision, we will summarize the law in regard to the enforcement of use restrictions against condominium unit owners. As we opined in Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971):

Daily in this state thousands of citizens are investing millions of dollars in condominium property. Chapter 711, F.S.A., 1967, the Florida Condominium Act, and the Articles or Declarations of Condominiums provided for thereunder ought to be construed strictly to assure these investors that what the buyer sees the buyer gets. Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be. Id. at 688.

Breitenbach involved an attempt by a unit owner to replace a screen enclosure with glass jalousies, even though the declaration of condominium prohibited “material alterations” or “substantial additions” to the common elements of the condominium. The screened enclosures were within the areas defined as common elements. Thus, even though Breitenbach’s attempt to replace the screen enclosure was certainly a reasonable one and would have doubtlessly improved their unit, we were impelled to uphold the use restrictions in order to vindicate the condominium association’s interest in maintaining a uniform exterior. A similar result occurred in Pepe v. Whispering Sands Condominium Association, 351 So.2d 755 (Fla. 2nd DCA 1977), wherein the Court expressed the view that the restrictions in the declaration of condominium were of paramount importance in defining the rights and obligations of unit owners. The Court stated:

A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto — it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property. Stated otherwise, it spells out the true extent of the purchased, and thus granted, use interest therein. Absent consent, or an amendment of the declaration of condominium as may be provided for in such declaration, or as may be provided by statute in the absence of such a provision, this enjoyment and use cannot be impaired or diminished, (footnotes omitted) Id. at 757-758.

See also, Wilshire Condominium Association, Inc. v. Kohlbrand, 368 So.2d 629 (Fla. 4th DCA 1979).

Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975) presented the question of whether a condominium association, through the exercise of its rule making powers, could prohibit the consumption of alcoholic beverages in the common areas of the condominium. In that case, we stated the “rule of reasonableness” to be the touchstone by which the validity of a condominium association’s actions should be measured.

Certainly, the association is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners. On the contrary, we believe the test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof. Of course, this means that each case must be considered upon the peculiar facts and circumstances thereto appertaining. Id. at 182.

We found that the restriction on consumption of alcoholic beverages was reasonable because it was designed to “promote the health, happiness, and peace of mind of the majority of the unit owners.” Id. at 182.

There are essentially two categories of cases in which a condominium association attempts to enforce rules of restrictive uses. The first category is that dealing with the validity of restrictions found in the declaration of condominium itself. The second category of cases involves the validity of rules promulgated by the association’s board of directors or the refusal of the board of directors to allow a particular use when the board is invested with the power to grant or deny a particular use.

In the first category, the restrictions are clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed. Such restrictions are very much in the nature of covenants running with the land and they will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. See, White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). Thus, although case law has applied the word “reasonable” to determine whether such restrictions are valid, this is not the appropriate test, and to the extent that our decisions have been interpreted otherwise, we disagree?-? Indeed, a use restriction in a ^declaration of condominium may have a i certain degree of unreasonableness to it, and yet withstand attack in the courts. If it were otherwise, a unit owner could not i rely on the restrictions found in the declara- ' tion of condominium, since such restrictions would be in a potential condition of continuous flux.

The rule to be applied in the second category of cases, however, is different. In those cases where a use restriction is not mandated by the declaration of condominium per se, but is instead created by the board of directors of the condominium association, the rule of reasonableness comes into vogue. The requirement of “reasonableness” in these instances is designed to somewhat fetter the discretion of the board of directors. By imposing such a standard, the board is required to enact rules and make decisions that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners. In cases like the present one where the decision to allow a particular use is within the discretion of the board, the board must allow the use unless the use is demonstrably antagonistic to the legitimate objectives of the condominium association, i. e., the health, happiness and peace of mind of the individual unit owners.

In the instant case, Hidden Harbour has articulated three basic reasons for denying the Bassos’ request for permission to drill a well. First, the Board felt that such a well would increase the level of salinity in the deeper wells owned by the Hidden Harbour Condominium Association. Secondly, the Board believed the water pumped from the Bassos’ well would impose a threat of staining the sidewalks and other common areas of the condominium association. Thirdly, the Board felt that if the Bassos were allowed to drill a well, then there would be a proliferation of other wells.

These reasons for denial were in the best interest of all of the unit owners, since they were legitimate objectives which would have promoted the aesthetic appeal of the condominium development. However, in order for the Board to justify its denial of the Bassos’ application to drill a well, it was necessary that the Board be able to demonstrate that its denial was reasonably related to the fulfillment of the desired and laudable objectives mentioned above. This the Board failed to do. The evidence at trial indicated that the Bassos’ well had no effect on the increased salinity of the wells owned by Hidden Harbour. In fact, this was known by one of the members of the Board of Directors at the time that the Bassos applied for permission to drill a well. No discoloration of commonly owned property had occurred at the time of trial, even though the Bassos frequently used the “illicit” well for more than a year and a half. Finally, there was not a shred of evidence to support a finding that the Bassos’ well precipitated a proliferation of other wells in Hidden Harbour or that a proliferation of wells would be detrimental. Simply stated, Hidden Harbour failed to demonstrate a reasonable relationship between its denial of the Bassos’ application and the objectives which the denial sought to achieve.

We also note that a trial court has wide discretion in denying or granting an injunction, and an appellate court will not interfere where no abuse of discretion has been made to appear. Sadowski v. Shevin, 351 So.2d 44 (Fla. 3rd DCA 1976).

We do not hold that, as a matter of law, Hidden Harbour was not entitled to injunc-tive relief in a situation similar to the one presently before this court. We merely hold that under the facts of this case, as demonstrated by the evidence at trial, such relief would not have been proper.

Accordingly, the judgment of the trial court is affirmed.

DOWNEY, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

concurring specially.

I concur with the majority opinion with the additional comment that the Board’s fear of a proliferation of wells, if a single one is allowed, would be justifiable as a matter of common sense. However, this comment in no way affects the failure to demonstrate any likelihood of increased salinity or staining.

Further, it goes without saying that if and when increased salinity or staining can be demonstrated, the Board will have the opportunity to return to court. Obviously on any such occasion, proliferation of wells will compound the adverse effect on the condominium property.

      . The complaint also alleged that the Bassos were in violation of the water use restrictions. Although the Bassos did violate these restrictions prior to drilling their own well, the “excessive” water use after the well was drilled did not violate the use restrictions since it placed no increased burden on the common supply.


text:
    Clifford E. OSBORNE, Appellant, v. Anna OSBORNE, Appellee.
    No. 79-931.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Allan L. Hoffman, West Palm Beach, for appellant.
    Richard P. Zaretsky, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    Joseph KALMAN, Appellant, v. Christine KALMAN, Appellee.
    No. 79-1863.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Tom Bush, Fort Lauderdale, for appellant.

      Edward G. Stephany of Marko, Stephany, Lyons & Dow, Fort Lauderdale, for appel-lee.

       Did not participate in oral argument.

   PER CURIAM.

This is an appeal from a final judgment of dissolution and an award of attorneys fees to the appellee. The appellant has raised numerous issues on appeal. The only error we find as to the dissolution is the provision directing an entity not a party to the proceedings, Alanwood Holding Co., to transfer its interest in a certain mortgage to the appellee. Feldman v. Feldman, 390 So.2d 1231 (Fla. 3d DCA 1980). We also believe it was error for the trial court to award attorneys fees without conducting a hearing thereon with due notice thereof provided to appellant. Feldman v. Feldman, supra.

Accordingly, the judgment is affirmed in part and reversed in part and this cause is remanded for further proceedings consistent herewith.

ANSTEAD, BERANEK and GLICKSTEIN, JJ., concur.


text:
    In the Interest of W. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-2434.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. We note, however, that the court rendered a verdict of not guilty of burglary and guilty of grand theft. The subsequent written commitment order and sentence erroneously recited that appellant was adjudicated guilty of burglary and grand theft. The lower tribunal is instructed to correct the record to reflect the conviction for grand theft only. Anderson v. State, 338 So.2d 209 (Fla.3d DCA 1976).

AFFIRMED BUT REMANDED TO CORRECT RECORD.

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


author: HURLEY, Judge.

text:
    Mary Jane SLOAN, Appellant, v. William C. SLOAN, Appellee.
    No. 80-593.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.

      H. C. Feige of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant.
    Arthur M. Wolff of Wolff & Gora, Fort Lauderdale, for appellee.
   HURLEY, Judge.

Here the trial court disapproved a finding and recommendation of a special master and thereafter granted appellee/husband’s motion for relief from judgment. We disagree with the rationale of the trial court, but affirm for a different reason.

Appellee/husband failed to attend the final hearing in his divorce action on May 24, 1979. Nevertheless, the hearing was held and resulted in the trial court granting appellant/wife’s petition for dissolution. The husband then filed a motion for rehearing pursuant to Rule 1.530, Fla.R.Civ.P. We have not been favored with a transcript of the rehearing proceedings, but the record reflects that the motion for rehearing was denied on September 12,1979, and that the husband did not appeal this ruling.

Next, on November 29,1979, the husband filed a motion for relief from judgment pursuant to Rule 1.540(b), Fla.R.Civ.P. The court referred the matter to a special master who, in turn, conducted an evidentiary hearing. The husband, as movant, testified about his failure to attend the May 24th final hearing. The wife then attempted to block this testimony by asserting the defense of res judicata. She contended that the husband was precluded from obtaining relief under Rule 1.540(b) since, she said, he was rearguing the same grounds which he had asserted in his motion for rehearing. Neither the transcript of the rehearing proceeding nor any testimony was offered to support this contention. The wife’s lawyer, however, stated that he had been present at the hearing and that in fact, the husband was rearguing the identical issues. Defense counsel did not stipulate to these facts, but merely informed the master that he had not represented the husband at the time of the motion for rehearing and therefore had not been present at the hearing.

The special master filed a report which contained this finding:

Respondent’s [husband’s] Motion for Rehearing of the Final Judgment has previously been denied by this Court’s Order of September 12, 1979, and the same issues are involved in Respondent’s Motion for Relief from Final Judgment which was the subject of this hearing.

Accordingly, the master recommended that the husband’s motion for relief from judgment be denied.

The trial court, rejected the master’s finding and recommendation, stating:

This Court is pursuaded [sic] that Respondent’s failure to attend the Final Hearing had on May 24, 1979, was the result of mistake, inadvertence or excusable neglect. Respondent has not heretofore in this proceeding displayed a lack of diligence in the prosecution of his Counterclaim, thus the ends of justice would best be served by affording him his day in Court on his Counterclaim under the authority of Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (4th DCA 1971).

Therefore, the trial court granted husband’s motion for relief from judgment and scheduled a final hearing for the purpose of considering the husband’s counterclaim filed in the divorce action.

Putting the case in proper perspective, we believe the wife was correct in stating that a party may not utilize a motion for relief from judgment under Rule 1.540(b), Fla.R.Civ.P., to relitigate issues which have been previously litigated in a motion for rehearing pursuant to Rule 1.530, Fla.R.Civ.P. If the grounds are identical, a party’s failure to seek appellate review of the order denying the motion for rehearing precludes further judicial review. Cf. Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). The critical issue in this case, however, is whether the wife established the defense of res judicata by competent and substantial evidence. We conclude that she did not.

The general principles governing the acceptance or rejection of a special master’s report were set forth in Frank v. Frank, 75 So.2d 282, 285 (Fla.1954):

... [I]f a special master is appointed, by agreement or consent of the parties to a chancery cause, with authority to make findings of fact, conclusions of law and recommendations, his findings and recommendations should be approved and adopted by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Of course, the master’s findings of fact would be clearly erroneous if the record should fail to contain evidence in support thereof which is both competent and substantial. (Citations omitted).

Applying these principles to the case at bar, we hold that the trial court was fully justified in rejecting the master’s finding of res judicata since it was not supported by any evidence. As indicated above, neither the transcript of the rehearing proceeding, nor any sworn testimony, was offered into evidence. It is, of course, fundamental that representations by counsel, absent a stipulation, when not made under oath and subject to cross-examination, are not evidence. Cf. Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361 (Fla.1974). Therefore, the trial court was eminently correct in rejecting a finding which was not supported by competent and substantial evidence.

Since appellant/wife has failed to demonstrate that the trial court abused its discretion in granting appellee/husband’s motion for relief from judgment, we apply the maxim that an order of the trial court “arrives in the appellate court clothed with the presumption of its correctness and will be affirmed if it can be supported on any theory.” Beck v. Beck, 383 So.2d 268, 272 (Fla.3d DCA 1980). Accordingly, the order under appeal is

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

      . The trial judge who granted the dissolution, denied the husband’s motion for rehearing and referred the husband’s motion for relief from judgment to the special master, apparently was transferred to another division of the court. Therefore, the master’s report was submitted to a successor judge who obviously did not have personal knowledge of the issues ruled upon in husband’s motion for rehearing.


text:
    COMPASS TRAVEL, INC., a Florida Corporation, Appellant, v. William J. HASEY, Appellee.
    No. 80-1177.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    R. T. Shankweiler, Fort Lauderdale, and Arthur T. Boone, P. A., Jacksonville, for appellant.
    Martin J. Hasey of Hatch & Fenster, Plantation, for appellee.
   PER CURIAM.

Having determined that the Florida Rules of Appellate Procedure do not provide for an appeal from the non-final order challenged herein, we have elected to treat the notice of appeal as a petition for writ of prohibition since appellant is challenging the authority of the trial court judge, a county court judge temporarily assigned as a circuit court judge, to act as a circuit court judge in these proceedings. The petition for writ of prohibition is denied on the authority of State of Florida ex rel. Treadwell v. Hall, 274 So.2d 537 (Fla.1973).

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


text:
    Elwood Kenneth MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 79-341/T4-404.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Bassett v. State, No. 80-386 (Fla. 5th DCA Jan. 28, 1981).

COBB, SHARP and COWART, JJ., concur.


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

text:
    Walter J. CZAGAS and Cecile Czagas, his wife, Appellants, v. Clark MAXWELL, Sr., Brevard County Property Appraiser and Rudy Underdown, Brevard County Tax Collector, Appellees.
    No. 79-170.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.

      Kenneth N. Jacoby, Satellite Beach, for appellants.
    Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso, Mosley, Scott & Kabboord, P. A., Cocoa Beach, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, landowners in Brevard County, appeal from a judgment affirming the denial of an agricultural classification of their lands.

Appellants first raise as error that it was improper to classify their property as non-agricultural simply because it was less than twenty acres.

Section 193.461(3)(b), Florida Statutes (1979), provides that:

[Ojnly lands which are used primarily for bona fide agricultural purposes shall be classified agricultural.... In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
1. The length of time the land has been so utilized;
2. Whether the use has been continuous;
3. The purchase price paid;
4. Size, as it relates to specific agricultural use;
5. Whether an indicated effort has been made to care ... for the land in accordance with accepted commercial agricultural practices . ..;
6. Whether such land is under lease ...;
7. Such other factors as may from time to time become applicable. (Emphasis added.)

Appellants’ property was slightly more than nineteen acres of fenced and cross-fenced pasture land and included a house. When appellants purchased the land they acquired livestock and some farm equipment. They purchased the land from its previous owners who had been operating it as a farm and it had been classified and taxed as agricultural. However, the previous owners had leased additional land from a neighbor so their total operation encompassed more than twenty acres.

In Roden v. K & K Land Management, Inc., 368 So.2d 588 (Fla.1978), the Florida Supreme Court declared that the factors enunciated in section 193.461(3)(b) are to be used in determining agricultural use but that none is determinative. The court explained that agricultural use is now and always has been the test. Roden at 589. In the instant case, the county property appraiser, in denying appellant’s application, tersely stated: “We require twenty acres under fence for pasture land. Your property does not meet this requirement.” This statement in the property appraiser’s notice of denial indicates that size was im-permissibly used as the sole criterion in reviewing appellant’s application. In effect, the appraiser created, without statutory authorization, an irrebuttable presumption that property under twenty acres cannot constitute an agricultural use. The county’s desire to extend preferential tax treatment only to those individuals who are in fact utilizing their property for bona fide agricultural purposes is reasonable, but the requirement that twenty acres can qualify, while nineteen cannot, does not appear to be rationally related to achievement of that goal. There is no rational connection between the fact proved (ownership of less than twenty acres) and the ultimate fact presumed (non-agricultural use). See Bass v. General Development Corp., 374 So.2d 479 (Fla.1979).

The second point raised is whether appellant’s application could be properly denied when it was established that they had paid more than three times the assessed value of the property.

Section 193.461(4)(c), provides:
Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.

This section creates a rebuttable presumption that the land is not to be used for agricultural purposes. The presumption may be overcome by a showing of a continuation of an agricultural use. While appellants admitted they had paid more than three times the assessed value, they also introduced evidence establishing the continued use of the land for agricultural purposes. Section 193.461(4)(c) must be read in pari materia with section 193.461(3)(b), which lists the seven criteria for determining bona fide agricultural use, of which the purchase price is but one. Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980).

In Goembei, the court also rejected a claim that the owner must show a reasonable expectation of making a profit in order to establish “special circumstances.” Profit is an element that should be considered but it is not the determinative or controlling factor. Goembei at 785. The court explained:

Use is still the guidepost in classifying land, although other specifically enumerated factors relative to use may also be considered. Commercial agricultural use simply adds another factor, i. e., profit or profit motive, which may be considered by the tax assessor in determining whether or not a claimed agricultural use is bona fide. The statute does not limit agricultural classification to commercially profitable agricultural operations.

We therefore reverse and remand to the trial court for reconsideration of all seven criteria enunciated in section 193.461(3)(b) in determining the merits of appellants’ petition for agricultural classification.

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.


author: ORFINGER, Judge.

text:
    FLORIDA HOMES CONSTRUCTION CO., INC., a Florida Corporation, Appellant, v. EXECU*SYSTEMS OF CENTRAL FLORIDA, INC., and Semvest Corporation, Appellees.
    No. 80-359.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.
    Stephen M. Stone, Segal, Woods & Stone, Orlando, for appellant.
    A. Clifton Black, Orlando, for appellees.
   ORFINGER, Judge.

Appellant contends that the trial court abused its discretion in awarding it only $1,000 for attorney’s fees in its successful action to foreclose a mechanic’s lien. We affirm.

Where the trial court is authorized to award attorney’s fees, such award being within the sound discretion of the court, the fees will not be disturbed on appeal in the absence of a clear showing of an abuse of that discretion. Bryan and Sons v. Klefstad, 265 So.2d 382 (Fla. 4th DCA 1972). Appellant contends that the fee is insufficient for the time expended, and that the trial court did not consider the factors set forth in Florida Bar Code of Professional Responsibility DR 2-106, in determining the amount of the fee.

Appellant’s argument must fail because there is nothing in the record to sustain its position. It argues only that the attorney expended 28V2 hours for which the allowance of $1,000 is inadequate. We agree that the hourly allowance is low, but it is not so inadequate as to itself demonstrate an abuse of discretion. The trial court had the right to consider the various elements set forth in the canon and to assign to each such weight as he deemed appropriate. Appellant fails to demonstrate that the trial court did not do so. Appellant having failed to demonstrate error, the judgment below is

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    C. D. HARMAN, Appellant, v. Gerald H. TANNENBAUM, Balaban-Gordon Co., Inc., and Lear Limited, Inc., Appellees.
    No. 80-859.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.

      Jon M. Wilson and Christopher C. Skam-bis of Van Den Berg, Gay & Burke, P. A., Orlando, for appellant.
    Robert 0. Marks, Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

United Presidential Life Ins. Co. v. King, 361 So.2d 710 (Fla.1978); and North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962).

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: SHARP, Judge.

text:
    Richard EIRE, Petitioner, v. The Honorable Frank N. KANEY, Circuit Judge, Ninth Judicial Circuit of Florida, Respondent.
    No. 80-1094.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.
    J. Cheney Mason, Orlando, for petitioner. Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   SHARP, Judge.

For the second time Eire petitions this court to bar his prosecution for first degree murder and require his discharge because the time limits set by Florida Rule of Criminal Procedure 3.191 have run. We find that the time periods have not run in this case, and we deny the petition.

A summary of the proceedings involving the murder charge against Eire is as follows:

November 8,1979 - Eire was arrested on a first degree murder charge - trial was set for the week of April 14, 1980, and was reset day by day.
April 29,1980 - Petitioner sought a continuance to prepare for trial when public defender withdrew and present counsel was appointed. Court granted a continuance, “charged" to petitioner, and reset the trial for June 23,1980.
May 9,1980 - Petitioner filed a motion for discharge; trial court denied it. Petitioner said he would seek a writ of prohibition to this court, and the trial court postponed the trial.
May 21,1980 - Petitioner filed a petition for writ of prohibition in this court.
July 15,1980 - This court found no merit in the petition even after reviewing portions of the record sua sponte; and it denied the petition without requiring a response from the state.
August 25,1980 - Petitioner filed a motion for discharge claiming more than 90 days had expired since his prior motion for discharge was denied. Fla.R. Crim.Proc. 3.191(d)(3).
September 15,1980 - Trial court denied second motion for discharge.
September 18,1980 - Eire again sought a Writ of Prohibition and this court issued a show cause order.

Florida Rule of Criminal Procedure 3.191(a)(1) requires that a person charged with a felony be brought to trial within 180 days of his arrest, provided he has been “continuously available for trial during such period of time .... ” It is well established, however, that if a defendant seeks a continuance or a continuance is required because of circumstances “chargeable” to the defendant, the 180 day time limit of the rule is waived and it no longer applies. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Register, 380 So.2d 543 (Fla. 5th DCA 1980); State v. DiSimone, 386 So.2d 283 (Fla. 4th DCA 1980). Here Eire sought a continuance and it was charged to him. Thus the 180 day rule is not applicable to him.

Rule 3.191(d)(3) provides that if a continuance chargeable to the defendant is obtained, and the speedy trial time runs out, and the defendant files a motion for discharge which is properly denied, the “trial shall be scheduled and commence within 90 days.” Homer v. State, 358 So.2d 1176 (Fla. 3d DCA), cert. denied, 364 So.2d 886 (Fla.1978). In State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980) we held that a defendant who “waived” the 180 day time span can “reactivate” the 90 day rule of 3.191(d)(3) by filing a motion for discharge, and under this rule the defendant must be tried within 90 days of the time he filed the motion for discharge.

Eire was not brought to trial within 90 days following his motion dated May 9, 1980. The reason he was not tried on June 23, 1980, as he otherwise would have been, was because he elected to seek review of the trial court’s denial of his motion through filing a petition for writ of prohibition. Because of his stated intent to seek a writ of prohibition, the trial court declared him indigent so his appointed counsel could proceed in this court, and it again postponed the trial.

Until July 15, 1980, Eire was actively challenging the trial court’s right to proceed to trial. During this time period Eire was not, as a practical matter, “available for trial” and his seeking appellate review in this matter is surely an “unexcused action” or “decision” sufficient to postpone the commencement of the running of the 90 day period until the prohibition matter was finally decided. Fla.R.Crim.P. 3.191(d)(3). Bryant v. Blount, 261 So.2d 847 (Fla. 1st DCA), cert. denied 267 So.2d 82 (Fla.1972). It would be unreasonable and uneconomic to require the state to proceed to try a case it could well be prohibited from trying. As the court said in State ex rel. Simonds v. Hall, 326 So.2d 443 (Fla. 2d DCA 1976):

To require the state to proceed to a new trial while relator was contesting the very validity of such new trial in the appellate courts would be to give the provision of the speedy trial rule an interpretation beyond the purpose of its enactment.

Id. at 444.

We conclude the 90-day period of rule 3.191(d)(3) began to run in Eire’s case on May 9, 1980. However Eire stopped the running of this time span when he sought the writ of prohibition in this court on May 21, 1980. Excluding the time expended in the appellate court, 53 days passed since May 9, 1980, and the time Eire filed his second motion for discharge on August 25, 1980. The trial court correctly denied this second motion for discharge. The 90-day period began to run again on August 25, 1980, but was tolled by the second round of appellate proceedings which commenced on September 18, 1980. The balance of this time will begin running again when this opinion is final.

Petition DENIED.

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

      . The defendant could have proceeded to trial and still preserved this point on appeal.

      . State v. Anglin, 333 So.2d 502 (Fla. 2d DCA), cert. denied 342 So.2d 1100 (Fla. 1976); Rosenwasser v. Smith, 308 So.2d 600 (Fla. 3d DCA 1975).

      . State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980). Effective Jan. 1, 1981, the revised rule starts the 90-day period running from the “written or recorded order of denial.” Rule 3.191(d)(3); The Florida Bar: Rules of Criminal Procedure, 389 So.2d 610 (Fla. 1980).


author: COWART, Judge.

text:
    Samuel FULLER, Petitioner, v. Honorable Volie A. WILLIAMS, Jr., Judge of the Circuit Court of the Eighteenth Judicial Circuit, in and for Seminole County, Florida, and his successors in office, Respondent.
    No. 80-1216.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.

      David M. Porter, Public Defender, and Gary N. Andersen, Asst. Public Defender, Sanford, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for respondent.
   COWART, Judge.

The petitioner seeks a writ of mandamus to direct the respondent trial judge to hear the merits of the petitioner’s motion for new trial which petitioner claims was improperly stricken.

At the conclusion of a criminal jury trial and pursuant to Florida Rule of Criminal Procedure 3.590(a), the trial court extended from four days to fifteen days after the rendition of the verdict the time within which a motion for a new trial could be made. On the seventh day after rendition of the verdict a motion for a new trial was made. Long after fifteen days after rendition of the verdict the motion was heard and at the hearing the State argued that the trial judge did not have jurisdiction to consider the motion because the motion was not filed within the first four days after rendition of verdict and that the court had not acted on the motion within the first fifteen days after rendition, citing Clark v. State, 176 So.2d 353 (Fla. 2d DCA 1965).

If a motion for a new trial is filed within four days of the rendition of the verdict it is timely regardless of when it is heard. If the time for making the motion is extended by the court as permitted by the rule and the motion is filed within the extended time limit then, again, the motion is timely filed.

In either event when a motion is timely filed the court has jurisdiction to consider the motion after the lapse of the time during which the motion can be timely filed. Clark v. State and the case it cites, Farrior v. State, 76 So.2d 148 (Fla.1954), relate only to the situation where the time for filing is not expressly extended and the motion is not filed within four days of rendition of the verdict but is thereafter filed. In that event those cases hold that the trial court still has jurisdiction to act on the motion if the court acts within fifteen days of the rendition of the verdict. Apparently these rulings, in effect, hold that the trial court does not have to act within the four days of rendition to extend the time for filing, that under the rule the court has the authority to act at any time within fifteen days of the verdict to extend the time as permitted and that when the court grants or denies (as distinguished from dismissing or striking) a motion within fifteen days of the verdict it impliedly approves the belated filing. As the motion for a new trial in this case was timely filed, the particular doctrine of Clark v. State, has no application and the trial court had jurisdiction to consider the merits of the motion after the time period within which it was required to be filed.

Clark v. State and cases cited therein, suggest that the denial of a motion indicates a ruling on the merits while dismissing or striking it, contrarily, suggests that the motion was considered untimely or for some other reason the trial judge believed the court did not have jurisdiction to consider the motion. It was after reading this portion of that case that the trial court struck the motion in this case signaling that he had accepted the State’s erroneous interpretation of Clark v. State.

Although the rule that denies the right of appellate review of the sufficiency of the evidence in a criminal case where a timely motion for a new trial has not been filed is fulfilled by the mere timely filing of the motion and is not dependent upon the correctness of the trial court’s disposition of the motion, nevertheless, we are satisfied that a defendant is entitled to a ruling on the merits of a timely motion for a new trial and that a writ of mandamus is a proper remedy to cause a trial court to exercise its jurisdiction to hear the merits of such a motion which has been improperly stricken. However, we are required to take judicial notice of the records of our own court which reveal that the petitioner has now filed in this court a direct appeal of his judgment and sentence which, of course, constitutes an abandonment of his motion for a new trial. Since this action deprives the trial court of its jurisdiction to hear and consider the motion for a new trial, we cannot now direct him to do so, and the petition for writ of mandamus is, therefore,

DENIED.

COBB and SHARP, JJ., concur.

      . That rule, its history and a criticism of it is set forth in Martin v. State, 262 So.2d 720 (Fla. 2d DCA 1972).

      . See Bishop v. Chillingworth, 114 Fla. 286, 154 So. 254 (1934).

      . Samuel Fuller v. State, No. 80-1355 (Fla. 5th DCA, filed Nov. 24, 1980).

      . In re Estate of Sulin, 204 So.2d 28 (Fla. 2d DCA 1967).


text:
    W. G. (Gerry) PALMER and Audio Systems of Florida, Inc., Petitioners, v. Carolyn Ann SERVIS, Respondent.
    No. 80-1245.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.

      Benjamin T. Shuman, Orlando, for petitioners.
    Jon S. Rosenberg, Orlando, for respondent.
   COWART, Judge.

In this original proceeding petitioners seek a writ of common law certiorari to review a pre-trial non-final order in a dissolution action which, by denying petitioner’s motion for a protective order, effectively granted discovery. We have jurisdiction under article V, section 4(b)(3), Florida Constitution, and Florida Rules of Appellate Procedure 9.030(b)(2)(A) and 9.100.

The dissolution complaint alleges that the husband was an employee of the corporate petitioner and had a financial interest in that company. This allegation is admitted in the husband’s answer. The subpoena duces tecum, caused to be issued by the wife, requires the individual petitioner, as president of the corporate petitioner, to produce all financial books and records, financial reports, statements of income and loss, balance sheets, corporate books, minutes and records of the corporate petitioner.

The rule authorizing a subpoena duces tecum provides that the subpoena may command the witness to produce books, papers, documents or tangible things “designated” therein. The word “designated” is also" the qualifying word used to describe the documents a party can be required to produce. Petitioners are mere third persons subpoenaed as witnesses in this dissolution action. “Designation” requires some degree of specification. A blanket request for a general category is insufficient. The subpoena duces tecum should not become a search warrant, requiring a witness to produce broad categories of items which the party can search to find what may be wanted. The desired documents, books or papers should be designated with sufficient particularity as to affirmatively suggest their existence and materiality and so describe them that any reasonable person can identify them.

The wife is, of course, entitled to discover the husband’s interests, if any, in the corporate petitioner. However, by analogy to the principle applied in cases for an accounting, she should be first limited in discovery to matters relating to the establishment of her right or interest before she is entitled to learn of the internal financial details of the corporation itself. This is only fair not only because of the violation of others’ rights of privacy but, also, because there is no adequate remedy to recover knowledge after it has once been wrongfully gained. For this reason certiorari is frequently used to review orders granting discovery.

The petition is granted and the order denying protection is quashed.

DAUKSCH, C. J., and COBB, J., concur.

      . Fla.R.Civ.P. 1.280(c).

      . The subpoena required the production of other matters concerning which there was no objection.

      . Fla.R.Civ.P. 1.410(b).

      . Fla.R.Civ.P. 1.350(a).

      . See Annotation: Necessity and sufficiency ... of “designation” of documents, etc., in applications or motions, 8 A.L.R.2d 1134 (1949).

      . While the husband’s answer admits an interest in the business, the petitioner’s motion for protective order alleges that the husband has now conveyed to the individual petitioner the corporate stock the husband previously had and alleges that the husband is now but an employee.

      . The proper practice in an accounting case is a two stage determination where the trial court determines the initial question of the plaintiffs right and defers discovery as to the financial details until after the preliminary issue of the right to the accounting is settled. Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla. 1956).

      . In this case the right to go into the financial details of a third person’s business affairs should be deferred at least until the wife has established by evidence, acquired if necessary through other discovery proceedings, that the husband presently has a financial interest in the business.

      . See Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942), cited in Rogers & Baxter, Certiorari in Florida, 4 U.Fla.L.Rev. 477, 505 n. 100 (1951); Boucher v. Pure Oil Co., 101 So.2d 408, 410 (Fla. 1st DCA 1957), cited in Haddad, Certiorari in Florida, 29 U.Fla.L.Rev. 207, 224 n. 133 (1977).


author: SMITH, Judge.

text:
    Charles Jetter EICHMAN, Appellant, v. Alexander PATON, guardian of Cora Paton Eichman, incompetent, Appellee.
    No. SS-17.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      Marc E. Taps, Tallahassee, for appellant.
    Alan N. Berg, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   SMITH, Judge.

In this appeal from a summary final judgment appellant Charles Jetter Eichman contends that the trial court was in error in its ruling permitting partition of real property owned by appellant and his wife as a tenancy by the entireties. We affirm.

A brief recital of background facts will disclose the rather bizarre circumstances under which this litigation arose. The appellant, Charles Jetter Eichman, and his wife, Cora Patón Eichman, were married on August 12, 1965. In 1968 the parties purchased a home in Tallahassee, Florida, taking title in their joint names as husband and wife, thus creating a tenancy by the entireties. In 1971 the parties separated, at which time the wife moved to Vancouver, British Columbia, Canada, and the appellant husband continued to live in the marital home. In January, 1975, the wife filed a petition for divorce in British Columbia, Canada. Appellant filed his answer to the divorce petition. However, on March 31, 1975 appellant struck his wife on the head with a pipe, causing injuries which rendered her incapable of managing herself or her affairs, bringing an end to the divorce proceeding, and requiring her to be institutionalized. In May 1975 appellant was convicted by the Supreme Court of British Columbia of unlawfully attempting to commit murder of his wife and was sentenced to a prison term of ten years.

The appellee herein, Alexander Patón, brother of Cora Patón Eichman, was appointed guardian of her person and property by a Canadian court. In June 1978 an order was entered by the Circuit Court in Leon County, Florida authorizing appellee to manage and protect the property of his ward, appellant’s wife, located in Florida. Appellee filed an action seeking partition of the marital property held by appellant and Cora Patón Eichman which was defended by appellant on the ground that an estate by the entirety is not subject to partition during the continuance of the marriage of the parties.

In granting the petition for partition, the trial court reasoned that any semblance of a meaningful marriage relationship was destroyed by the criminal assault inflicted upon his wife by appellant; that it was this act of the appellant husband that caused the termination of the wife’s divorce action, which otherwise would have proceeded to a conclusion and made it possible to partition the property; and that to deny the relief sought in behalf of the wife under these circumstances would permit the appellant husband to gain or benefit from his own wrong. Further, the trial court stated (final summary judgment):

By frustrating the divorce litigation, the parties remained tenants by the entirety with the right on the part of the husband to inherit the entire property in the event of his wife’s death and further with the right on his part to occupy and use the property after being released from prison.
Under the peculiar circumstances of this ease, this Court is of the opinion that equity has it within its power to grant relief (see Lacker v. Zuern, 109 So.2d 180). [Fla. 2nd DCA 1959]

We agree with the conclusions reached by the trial judge. See also Ashwood v. Patterson, 49 So.2d 848 (Fla.1951), and Bencomo v. Bencomo, 195 So.2d 874 (Fla. 3rd DCA 1967). We have considered appellant’s assertion that the courts of this state have consistently held that an estate by the entireties is not ordinarily subject to partition during the continued existence of the marital relationship of husband and wife. Logan Moore Lumber Co. v. Legato, 100 Fla. 1451, 131 So. 381 (1930); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Naurison v. Naurison, 132 So.2d 623 (Fla. 3rd DCA 1961). Further, an estate by the en-tireties depends on the existence of the marital relationship for its continuance. Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941).

Appellant recognizes, however, that equity may act to prevent an unjust result, and his argument here is simply that there has been no showing that appellant will benefit to the detriment of appellee. We disagree, since the trial court has found otherwise, and the decision comes to us clothed with a presumption of correctness. Other jurisdictions have recognized that a tenancy by the entireties may be severed during coverture "... either by agreement of the parties, actual or implied, ... or by judicial intervention.” Community Federal Savings and Loan Association v. Luckenbach, 463 Pa. 472, 261 A.2d 327, 329-330 (1970). Furthermore, we are not persuaded by appellant’s argument that under the circumstances presented here, there is any remaining duty on the part of the wife or the courts to exercise any care in assuring that the entire estate will be retained for the benefit of both parties. We conclude, as did the trial judge, that the unity between the parties which forms the basis for the entireties form of ownership has been dissolved by appellant’s felonious act and we consider that strong equitable principles would be frustrated by denying the only practical remedy now available in the wife’s behalf which will allow the disastrous effects of appellant’s wrongful act to be partially offset.

The judgment appealed from is affirmed.

MILLS, C. J., and BOOTH, J., concur.


text:
    Charity Ann MURVIN, Appellant, v. STATE of Florida, Appellee.
    No. TT-273.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Michael J. Minerva, Public Defender, and David Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David Gaul-din, Asst. Atty. Gen., Tallahassee, for appel-lee.
   PER CURIAM.

Murvin asserts that the trial court erred in refusing to classify her as a youthful offender as provided in Section 958.04(2), Florida Statutes (Supp.1978). The offense, however, took place prior to the effective date of the statute. Since the statute cannot be retroactively applied, the trial court’s imposition of sentence is AFFIRMED. Bradley v. State, 385 So.2d 1122 (Fla. 1st DCA 1980); Allen v. State, 383 So.2d 674 (Fla. 5th DCA 1980); State v. Pizarro, rev’d on reh., 383 So.2d 762 (Fla. 4th DCA 1980).

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


author: JOANOS, Judge.

text:
    SCOTTY’S, INC. and Crawford and Company, Appellants, v. John H. JONES, Appellee.
    No. TT-312.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      Robert W. Elton, Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P. A., Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   JOANOS, Judge.

The employer/carrier appeal a Workers’ Compensation Order, awarding permanent partial disability benefits to the claimant, based on loss of wage earning capacity. We find merit in two points raised for review, and accordingly reverse.

The deputy commissioner found that the claimant had suffered an industrial accident which resulted in injuries to his back, neck and arms. Appellants do not dispute that the claimant’s neck and arm injuries were caused by his accident. However, they urge that there is not substantial, competent evidence to support the finding of a causal relationship between the accident and claimant’s back problems.

It is well established that a finding of a causal relationship must be based upon a reasonable medical probability — not possibility. Nelson v. Hebrew Home for Aged, 276 So.2d 468 (Fla.1973). Reasonable medical probability may be predicated upon either lay or medical testimony. Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla.1970). However, lay testimony is not sufficient to establish a causal relationship between the accident and conditions which are not readily observable or discoverable without medical examination. Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980).

In the instant case, the claimant testified that he first began to experience pain in his lower back some nine to twelve months after the industrial accident. He also indicated that two months before the accident, he had pulled a muscle in his back, requiring him to miss time from work; but that he had not injured his back since the accident.

The only medical testimony on this issue is that of Dr. Montoya, one of the treating physicians. Dr. Montoya stated that it was unusual, but not completely impossible, to develop such a late onset of symptoms. However, he was “really doubtful” that claimant’s back problems were related to the industrial accident.

In cases where there is a lapse of time between the accident and the manifested results, proof of a causal relationship becomes critical. Wackenhut Corporation v. Ellis, IRC Order 2-3402 (April 18, 1978), cert. denied, 376 So.2d 71 (Fla.1979). We find that the evidence here is insufficient to establish a causal relationship between claimant’s lower back problems and his industrial accident, within a reasonable medical probability. Therefore, that portion of the deputy commissioner’s order must be reversed.

The second assignment of error in this case is the finding that claimant sustained a 20% loss of wage earning capacity. Appellants contend that claimant failed to establish that he sought employment after reaching maximum medical improvement from his injuries. Such a showing is clearly required in order to justify an award of compensation based upon a diminution of wage earning capacity. Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978). The deputy commissioner made no specific finding regarding claimant’s ability to obtain work on the open labor market, in his after-injury condition. The only evidence in this regard consists of notations in the medical reports of two treating physicians, to the effect that claimant had made several attempts to obtain employment, but had been refused, due to his disabilities. Such evidence is not adequate to sustain a finding of loss of wage earning capacity, because it does not specify when and where claimant sought employment, and whether or not the positions applied for were within claimant’s physical limitations. See Milex Southern Medical, Inc. v. Osuna, IRC Order 2-3763 (April 12,1979), cert. denied, 383 So.2d 1200 (Fla.1980).

Nevertheless, it does appear that claimant did make some effort to obtain work, and it is undisputed that he was unable to return to his former employment as a truck driver. We believe, therefore, that claimant should not be strictly limited to a disability rating equivalent to his anatomical impairment.

In light of these facts, we feel that this issue should be remanded to the deputy commissioner for further findings in this regard, including consideration of any additional evidence on this point, which may be submitted by the parties.

Appellants next urge that the deputy commissioner erred in basing her determination of loss of wage earning capacity on the premise that the claimant can be rehabilitated. We find that any possible error in this regard would be in appellants’ favor, and, therefore, harmless.

The order is reversed as indicated above, and remanded for further consideration in accordance herewith.

McCORD and SHIVERS, JJ., concur.


author: WENTWORTH, Judge.

text:
    John F. DRYBALA, Appellant, v. HANGAR ONE, INC. and American Home Assurance Co., Appellees.
    No. UU-99.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Stuart F. Suskin, Abrams & Suskin, North Miami Beach, for appellant.
    John F. McMath, Miami, for appellees.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order by which the deputy denied the claim and found no compensable injury. The evidence indicates that claimant sustained a head injury in a fall in the bathroom while at work. The deputy’s order found claimant “had a prior injury for which he was taking medication,” and, by a conclusion that the accident did not arise out of employment, the order suggests but does not find that claimant’s fall was caused by medication he had been taking. We determine, upon review of the record, that the deputy’s conclusion is not supported by competent substantial evidence.

Claimant worked the night shift for his employer and, upon completion of his initial employment duties, was permitted to sleep until again needed. On the night he sustained injury claimant testified he had fallen asleep and was awakened after falling in the bathroom and suffering a head injury on the tile floor. Although claimant can remember nothing about the circumstances of the fall, he was found in the bathroom, in a puddle of water, by a co-worker. There was uncontroverted evidence that on the night in question the bathroom was partially under construction, with the floor tiles uneven and being “torn up,” and the urinals leaking water.

In Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970), the Court held that, where a claimant has established a logical cause of his injury the burden is then on the employer/carrier to show another cause more logical and consonant with reason so as to defeat compensability. In the present case we find the circumstances of claimant’s fall are sufficient to invoke that doctrine because, absent evidence of other causative factors, the facts are consistent only with a conclusion that the wet and uneven bathroom floor was causally related to claimant’s fall. Cf., Damon v. Central Hotel, 135 So.2d 204 (Fla.1961).

While the deputy’s order in the present case implies that the fall may have been caused by medication claimant was taking, the record does not contain evidentiary support for such a conclusion. Claimant testified that he had previously been under medication, but that he was not on medication the night he sustained injury. While claimant’s supervisor testified that claimant said he “had been taking medication prescribed by his doctor, that it was quite strong, and ... that his doctor indicated he shouldn’t be working,” that testimony made no reference to medication at the time of the accident, and was based only upon conversation with claimant after treatment and medication for the current injury. The supervisor stated he did not know if claimant had taken any medication on the night of his injury, could not identify the time frame when claimant was taking medication, and did not know what kind of medication claimant was taking, or its effects. Resolving all credibility issues in favor of such testimony, it plainly does not establish a “more logical cause” of claimant’s injury as required by Wilhelm in the circumstances of this case, and the deputy erred in denying the claim.

The order appealed is reversed, and the cause remanded for further proceedings on the claim.

ERVIN and SHAW, JJ., concur.


text:
    MASONRY ASSOCIATES and Pennsylvania National Insurance Company, Appellants, v. Willie L. OLIVER, Appellee.
    No. UU-248.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Frank Marriott, Jr., of Gosney, Cameron, Parsons & Marriott, Daytona Beach, for appellants.
    Curtis B. Goff, Orlando, for appellee.
   PER CURIAM.

This cause is REVERSED and REMANDED with directions to the Judge of Industrial Claims to reconsider the award of attorney’s fees in light of International Paper Company v. McKinney, 384 So.2d 645 (Fla.1980), and Moss v. Keller Industries, Inc., 393 So.2d 574 (Fla. 1st DCA 1981), decided subsequent to the entry of the order below.

ERVIN, BOOTH and JOANOS, JJ., concur.