text:
    Joyce COSTANTINO, Appellant, v. Frank COSTANTINO, Appellee.
    No. 79-1349.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 18, 1980.

      Elizabeth S. Baker and Stephen Maher and Kathy Hamilton, Miami, Legal Services of Greater Miami Inc., for appellant.
    Lawrence & Daniels and Bonnie Lee Daniels, Miami, for appellee.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

On the authority of Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980), we reverse the order below, which modified a 1968 divorce decree by changing custody of the parties’ two boys from the mother to the father. We entirely agree with and adopt the reasoning and analysis of the Hegler decision, the facts of which are virtually on all fours with this one. See also, Tilden v. Locke, 383 So.2d 976 (Fla. 3d DCA 1980). Unlike Hegler, however, we see no reason for remanding the cause for a determination of whether the trial court had jurisdiction under Section 61.1308(l)(c), Florida Statutes (1977). The testimony already taken at the “final hearing” below contains no competent proof whatever that, as required by that subsection, the children had been abandoned, abused or neglected at their home in Michigan. We therefore direct that, after remand, the petition for modification be dismissed for lack of subject matter jurisdiction.

Reversed and remanded with directions.

      . We see no valid distinction between the He-gler situation, in which the father himself took possession of the child in her home state, and this one, in which he arranged for the children’s transportation to Florida after they had “run away from home.”

      . The hearing, which was noticed for 11:30 a. m. on June 5, 1979, commenced on an apparently ex parte basis without the wife’s being represented. The father, the two boys, and their five-year-old half-brother “testified” in an informal colloquy with the trial court. After only fourteen pages of transcript, and thus no more than 15 minutes after the hearing began, the following appears:
      MR. MAHER [wife’s counsel]: Your Hon- or, I am Stephen Maher.
      THE COURT: Who are you?
      MR. MAHER: Stephen Maher.
      Judge, I was not called when the case was called.
      THE COURT: What case?
      MR. MAHER: Costantino.
      THE COURT: Well I was here at 28 minutes after 11:00.
      This case was called.
      MR. MAHER: I beg to differ with you.
      THE COURT: You can differ with me all you want.
      If you are involved in this case, sit down.
      For what purpose are you here?
      MR. MAHER: I have an appearance to be filed and I represent the wife in this case and I have a memorandum of law on the issue of jurisdiction.
      THE COURT: Frankie, do you like living with your two half-brothers?
      FRANKIE: Yes.
      THE COURT: Do you want them to live with you?
      FRANKIE: Yes.
      THE COURT: All right, any other questions?
      MR. NORTON [husband’s counsel]: No, Judge.
      THE COURT: The court is prepared to rule at this time.
      MR. MAHER: May I have a moment to give you an argument relative to this case?
      THE COURT: The time for argument is all up, counsel.

        We have been here a long time and I will rule that the husband has the permanent care, custody and control of the children.

        MR. MAHER: I would object to this procedure and I was here at 11:28.
      THE COURT: Good day to you.
      MR. MAHER: We would object to the Court’s exercising this jurisdiction.
      I prepared a lengthy memorandum of law and I would request the Court to give me a moment to argue this matter.
      THE COURT: This case is terminated and this case is over.
      Please prepare the order, Mr. Norton.
      MR. NORTON: Yes.
      (Thereupon the hearing was concluded.) [e. s.]
      If the court did not lack subject matter jurisdiction, the trial judge’s deprivation of the wife’s right and opportunity to be heard — as so clearly demonstrated by the record — would require the granting of a new and fair trial on the merits. Cavalier v. Ignas, 290 So.2d 20 (Fla.1974); A. Z. v. State, 383 So.2d 934 (Fla. 5th DCA 1980); Connors v. Connors, 327 So.2d 877 (Fla. 2d DCA 1976).

      . This disposition will be, of course, without prejudice to appropriate proceedings in Michigan which, as the place they had lived for eleven years after their parents’ divorce, was and remains the children’s “home state.” § 61.1306(5), Fla.Stat. (1979); see Hegler v. Hegler, supra, at 383 So.2d 1137, note 6.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clifford MONROE, an Individual, Appellant, v. Samuel BADANES, an Individual, and Sam Nurenberg, an Individual, Appellees.
    No. 79-1989.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 10, 1980.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Schweitzer & Kosdan, Miami, for appellant.
    Pyszka, Kessler & Adams and Phillip D. Blackmon, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1975); Fordham v. Carriers Insurance Company, 370 So.2d 1197 (Fla. 4th DCA 1979); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980).


text:
    Mel MENDELSON, Frances Metnick, Evelyn Parness and Bob Reilly, Appellants, v. CITY OF MIAMI BEACH, a Municipal Corporation, et al., Appellees.
    No. 79-1866.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 8, 1980.

      Cuadrado & Parks and Larry D. Parks, Miami, for appellants.
    John A. Ritter, City Atty., and Andrew H. Moriber, Chief Deputy, and Thomas M. Pflaum, Asst. City Atty., Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The order under review which dismissed the plaintiffs’ complaint herein with prejudice is affirmed upon a holding that: (a) the complaint fails to allege with specificity in what way the plaintiffs have or will be injured by the zoning ordinances which it attacks and, accordingly fails to state a cause of action for either a declaratory decree as to the validity of such ordinances, Sumpter County v. Davis, 356 So.2d 899 (Fla.2d DCA 1978); see May v. Holley, 57 So.2d 636, 639 (Fla.1952), or for inverse condemnation, Mailman Development Corp. v. City of Hollywood, 286 So.2d 614 (Fla.4th DCA 1973), (b) the complaint was properly dismissed with prejudice as the plaintiffs were permitted one amendment to the complaint and did not thereafter seek any further amendments in the trial court. Hohenberg v. Kirstein, 349 So.2d 765 (Fla.3d DCA 1977).

Affirmed.


author: BASKIN, Judge.

text:
    BARRANCO, DARLSON, DANIEL & BLUESTEIN, P.A., Appellant, v. Linda G. WINNER et al., Appellees.
    Nos. 79-1445, 79-1586 and 79-1855.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 19, 1980.

      Barranco, Darlson, Daniel & Bluestein and Steven Kellough, Woodrow “Mac” Melvin, Jr., Miami, for appellant.
    Koeppel, Stack & Newmark and Robert A. Gellman and Robert L. Koeppel, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

We are asked to decide whether in a separate action an attorney may seek recovery of legal fees pursuant to a contract with the wife when the trial court has ordered the husband to pay the fees of the wife’s attorney as part of a dissolution award.

Appellee Linda Winner retained the law firm of Barranco, Darlson, Daniel & Blue-stein, P.A. [Barranco] to represent her in a dissolution proceeding. Under the terms of a “fee and cost arrangement,” she agreed to pay the Barranco firm $100.00 per hour for legal services in addition to costs.

The dissolution proceeding culminated in a final judgment in which the trial court awarded Linda Winner, among other things, a diamond collection valued at $16,-000. The judgment also ordered each party to bear the cost of his or her own attorney.

Barranco then sent Linda Winner its initial bill for legal services pursuant to the agreement, and, in lieu of payment, she assigned her interest in the diamond collection to the law firm. Barranco also sought a promissory note from Linda Winner along with an assignment of her interest in the lump sum alimony awarded in the final judgment of dissolution. Mrs. Winner refused to execute either document and retained new counsel to represent her in the dispute with her former counsel. Eventually, Barranco filed suit against Mrs. Winner, seeking recovery under the contract for fees in the undisputed amount of $12,500. Barranco also obtained permission to intervene in the dissolution proceeding to protect its interest in the diamond collection.

In the meantime, Mr. Winner had appealed the final judgment of dissolution while Mrs. Winner had cross-appealed claiming error in the disallowance of attorney’s fees. In Winner v. Winner, 370 So.2d 845 (Fla. 3d DCA 1979), this court reversed portions of the final judgment, including the award of the diamond collection. The cause was then remanded for reconsideration of the award of alimony and the disallowance of attorney’s fees. Upon Linda Winner’s motion, the separate action on the contract for fees was consolidated with the continuing dissolution proceeding.

Following a hearing during which Bar-ranco presented expert testimony concerning the amount of a reasonable fee, the trial court awarded attorney’s fees of $12,500 to be paid by Mr. Winner directly to the Bar-ranco firm. § 61.16, Fla.Stat. (1977). Approximately two weeks later, “pursuant to the authority vested in it by Section 61.13, Florida Statutes (1978), general equitable principles, and in consideration of the attorneys [sic] fee award rendered . . . [in the dissolution proceeding],” the trial court determined that it had the discretion to deny Barranco any relief in its contract action against Linda Winner. The trial court then entered a final judgment and an amended final judgment in favor of Linda Winner in the contract action. An “order on mandate” was entered in the dissolution proceeding, which, among other things, confirmed and ratified the prior award of fees. Barranco appealed each of these rulings.

The award of attorney’s fees by the court serves to place parties in a dissolution proceeding on an equal footing to enable both parties to secure competent counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The determination of attorney’s fees is an adjudication of the obligations between the spouses and is “payable by one spouse to the other as an indemnity for fees reasonably contracted for and incurred . . . .” Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967, 971 (Fla. 1st DCA 1977). In a dissolution proceeding, the trial court has no power or jurisdiction to determine the amount due from a party to his or her own attorney absent a claim of a charging lien. Herold v. Hunt, 327 So.2d 240 (Fla. 4th DCA 1976). The determination of the rights of an attorney under his contract with his client remains to be tried in a separate action at law. Cristiani v. Cristiani, 114 So.2d 726 (Fla. 2d DCA 1959).

The trial court denied Barranco relief on the firm’s contract under equitable principles because the court had awarded fees against Mr. Winner in the dissolution proceeding. Fees awarded against a husband are fees of indemnification only, Valparaiso, supra, and the award determines only the obligation between a husband and wife. The action at law between the wife and her attorney, although consolidated with the dissolution proceeding for trial, presented questions relating to contract rights which remained to be determined apart from the trial court’s resolution of the equities between the husband and wife.

For the foregoing reasons, we reverse the final judgment and the amended final judgment entered in favor of the wife and remand for further proceedings in accordance with this opinion.


text:
    Sanford MUCHNICK, as Personal Representative of the Estate of Anne Y. Berman, Deceased, and Florence Muchnick, as Personal Representative of the Estate of Joseph Berman, Deceased, Appellants, v. Mary HALBERT, a/k/a Mary F. Berman, Appellee.
    Nos. 79-2218, 80-341.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    August, Pohlig & Milstein and Richard C. Milstein and Rosemary J. Michael, Miami, for appellants.
    Richard & Richard and Dennis Alan Richard, Miami Beach, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. In Re Lyon’s Estate, 90 So.2d 39 (Fla.1956); McGillen v. Gumpman, 171 So.2d 69 (Fla. 3d DCA 1965); Simpson v. Gumpman, 263 So.2d 854 (Fla. 1st DCA 1972); Brown v. Hanger, 368 So.2d 63 (Fla. 3rd DCA 1979); Sections 665.271 and 733.817, Florida Statutes (1979).


author: NESBITT, Judge.

text:
    John KINSLER, etc., et al., Appellants, v. ROHM TOOL CORP., etc., et al., Appellees.
    No. 79-1444.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 16, 1980.
    Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, and Janet W. Freeman, Palm Beach", for appellants.
    George & Thompson and Scott R. McNary, Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

Appellant, plaintiff below, seeks reversal of the summary final judgment entered in favor of Rohm Tool Corporation (Rohm Tool) and R. G. Industries, Inc. (R.G.), both Florida corporations and co-defendants below, on a complaint alleging that they had successive corporate liability for acts of co-defendant, Rohm GmbH, a West German corporation.

This is the second appearance of this case before this court. In the first phase, we affirmed an order denying a motion to dismiss for lack of in personam jurisdiction as to co-defendant, Rohm GmbH. Rohm Tool and R. G. were joined in a products liability action on a claim arising from injuries received by the plaintiff from a handgun which allegedly had a defective safety mechanism. The weapon had been manufactured by Rohm GmbH. The handgun was imported into the United States by an American distributor (not joined as a party defendant) and sold at retail by a sporting goods shop in Pinellas County in October, 1968.

Rohm Tool and R. G. are Miami-based corporations which, were incorporated in Florida after the handgun in question was sold at retail. Neither Rohm Tool nor R. G. assumed any debts or liabilities of Rohm GmbH, the West German corporation. Plaintiffs alleged, and there were inferences, that Rohm Tool and R. G. were incorporated by Rohm GmbH to avoid the impact of the Gun Control Act of 1968,18 U.S.C.A. § 921 et seq., which prohibited further importation of handguns into the United States. It was also alleged, and there was evidence to show, that: (1) Rohm Tool and R. G. were wholly owned and dominated subsidiaries of Rohm GmbH; (2) there was an interlocking management of the domestic corporations through a common controller; (3) all the net earnings of the Florida corporations were ultimately funnelled to the West German corporation through a bank in Frankfurt; (4) Rohm Tool and R. G. utilized blueprints, designs, and technology furnished to them by Rohm GmbH; (5) the logo of Rohm Tool was indentieal with that of Rohm GmbH; and (6) Rohm Tool and R. G. undertook claims and warranty repairs for weapons previously manufactured by Rohm GmbH in West Germany.

It was also undisputed that Rohm GmbH is a viable, ongoing enterprise in West Germany. Plaintiff asserts, due to the allegations and showing made (primarily those allegations of the alleged statutory violation of the Gun Control Act and the warranty repairs made on behalf of Rohm GmbH) that summary final judgment in favor of Rohm Tool and R. G. was improper because they were a mere continuation and reincarnation of Rohm GmbH, the West German corporation. Plaintiff relies upon Knapp v. North American Rockwell Corporation, 506 F.2d 361 (3d Cir. 1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975); Cyr v. B. Offen & Co. Inc., 501 F.2d 1145 (1st Cir. 1974); Holloway v. John E. Smith’s Sons Co., Div. of Hobam, Inc., 432 F.Supp. 454 (D.S.C.1977); Shannon v. Samuel Langston Company, 379 F.Supp. 797 (W.D.Mich.1974); Ray v. Alad Corporation, 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977); Western Resources Life Insurance Company v. Gerhardt, 553 S.W.2d 783 (Tex.Civ.App.1977); Annot., 66 A.L.R.3d 824 (1975) Products Liability of Successor Corporations for Injury or Damage by Product Issued by Predecessor.

We find it unnecessary to reach the merits of the plaintiff’s theory for imposing successive corporate liability in this case because it is clear on reason and authority cited that the liability of the predecessor corporation, is, absent an express or implied assumption of debts and obligations by the successor corporation, not imposed upon the successor where the predecessor is still a viable, ongoing entity, amenable to personal service and financially responsible. All the cases relied upon by the plaintiff recognize this salient distinction except that of Connelly v. Uniroyal, Inc., 75 Ill. 393, 389 N.E.2d 155 (1979), cert. denied, 444 U.S. 1060, 100 S.Ct. 992, 62 L.Ed.2d 738 (1980). However, Connelly v. Uniroyal is readily distinguishable from the present case because there Uniroyal participated in the domestic chain of distribution of tires manufactured in Belgium and, in effect, held itself out as the manufacturer of the foreign-made tires.

Affirmed.

      . GmbH v. Kinsler, 377 So.2d 182 (Fla.3d DCA 1979).

      . Mallory S. S. Co. v. Baker & Holmes Co., 117 Fla. 196, 157 So. 504 (1934).

      . Rohm GmbH’s insurance carrier was also joined as a co-defendant in this action.

      . In Ray v. Alad Corporation, supra, the following conditions precedent must generally exist in order to impose the liability of a predecessor corporation upon its successor:
      (1) there is a destruction of plaintiffs remedies against the predecessor;
      (2) the successor has the ability to assume the risk factor; and
      (3) the fairness of requiring the successor to assume responsibility for the predecessor’s defective product because the burden is a con-, comitant of the successor’s enjoyment of the predecessor’s good will. See Gee v. Tenneco, 615 F.2d 857 (9th Cir. 1980).


author: GLICKSTEIN, Judge.

text:
    Melvin I. MUROFF and Gloria Muroff, Appellants/Cross-Appellees, v. Paul DILL, Barbara B. Lynch, and Dorothy T. Lanier, Appellees/Cross-Appellants.
    No. 78-2272.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1980.
    Rehearings Denied Sept. 23, 1980.

      Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants/cross-appellees.
    Robert E. Ferris, Jr. of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for appellees/cross-appellants.
   GLICKSTEIN, Judge.

This is a timely appeal from the trial court’s order which denied appellants’ motion for judgment n.o.v. and partially granted their motion for new trial, solely as to damages. Appellees cross-appeal the granting of the new trial on damages. We affirm.

The record discloses that in 1972, Melvin I. Muroff and Gloria Muroff, his wife, owned a ninety-acre tract of undeveloped land in western Broward County, and had recorded a fifty-foot east-west easement for roadway purposes through the middle of the property. The easement disclaimed any responsibility by the Muroffs for installation or maintenance.

On April 22, 1972, the Muroffs sold fifteen acres in the southeast quadrant of the tract to Paul Dill, appellee. At closing, Dill obtained from Muroff a signed memorandum obligating the latter to complete within fifteen days an access road to the property from Hiatus Road, which was located several hundred feet to the west of the Dill property. Dill testified that the access road was not put in as agreed, causing his plans for single family residential development of the property to be stymied. Dill further testified that he obtained an executed document from Muroff on August 11, 1972, certifying that within sixty days Muroff would cause a road in the center of the easement to be brought to flood criteria level. During a visit to the property in the fall of 1972, Dill observed that the road surface had not been elevated above adjacent ground and in several areas was covered by standing water at least twenty-five feet in width. When Dill questioned Muroff following his visit to the site, Muroff maintained the road was complete. No further work on the road was undertaken.

Because of the delay in development of the property caused by the problem with the road, Dill decided to sell his fifteen acres. In January, 1973, he executed a contract with Mr. and Mrs. Rivera for the sale of five acres, and in March, 1973, executed a contract to sell the remaining ten acres to Dorothy T. Lanier and Barbara B. Lynch. Each contract provided that Mu-roff would hold first mortgages on the parcel being conveyed. This required that the existing purchase money mortgage, given by Dill to Muroff, would be split into two separate encumbrances. Muroff, however, had not consented to the mortgage split. The Lanier-Lynch contract further required Dill to provide a paved road.

In August, 1973, Dill filed suit against the Muroffs seeking cancellation of the deed to the fifteen acre property. While the cancellation action was pending, Muroff agreed to split the mortgage. Dill then assigned his interest in the cancellation action to Lanier and Lynch on June 25, 1974, in exchange for their releasing him from his obligation to put in a road. Two days later, Muroff signed a mortgage modification agreement splitting the mortgage between the two parcels. Dill concurrently delivered deeds to his purchasers.

Thereafter, Dill, Lanier and Lynch filed a second amended complaint seeking damages from the Muroffs for breach of the agreements dated April 22, 1972, and August 11, 1972. Muroff counterclaimed, alleging that the mortgage modification was predicated upon an agreement that Dill would dismiss his suit.

At trial Dill, Lanier and Lynch submitted evidence, over objection, that the cost of constructing a road to the property from Hiatus Road was $51,556. At their request, an instruction was given, again over objection, that the proper measure of damages was the cost of constructing the road. The Muroffs contended that the proper measure of damages was the diminution in value of the property occasioned by the failure to complete the road. The jury awarded $51,-556 to Dill, Lanier and Lynch and denied the Muroffs relief on their counterclaim.

The Muroffs raise two points on appeal:

1. The trial court should have directed a verdict against appellees because they offered no evidence upon the correct measure of damages.

2. The trial court should have ordered a new trial on all issues rather than granting a new trial on the issue of damages aloné.

On cross appeal, Lanier and Lynch contend that the trial court should not have granted a new trial on damages, arguing that the correct measure of damages was the reasonable cost to construct the road, not diminution in property value.

With respect to the first point, we are of the opinion that the trial court was correct in not directing a verdict. Appel-lees/cross-appellants were entitled to nominal damages once the breach of contract had been established, notwithstanding the absence of evidence regarding the correct measure of damages.

Two early decisions of the Florida Supreme Court are relevant. In Wynn v. Atlantic Coast Line R. Co., 66 Fla. 604, 64 So. 232 (1914), the court affirmed a judgment for nominal damages where there was no evidence to show the proper measure of damages. In Price v. Southern Home Ins. Co. of the Carolinas, 100 Fla. 338, 129 So. 748 (1930), the insured brought an action against the insurer on her fire insurance policy. Because the trial court indicated an intention to direct a verdict against the plaintiff, she offered no proof of her damages. Although there was ample proof of destruction of the building, the trial court directed a verdict against the plaintiff. The supreme court reversed and held that, notwithstanding the absence of proof of loss or damage, the plaintiff was entitled to nominal damages. More recently, in Beverage Canners, Inc. v. Cott Corp., 372 So.2d 954, 956 (Fla. 3d DCA 1979), the court held:

Nominal damages may be awarded when the breach of an agreement or invasion of a right is established, since the law infers some damage to the injured party; where there is insufficient evidence presented to ascertain the particular amount of loss, the award of nominal damages is proper. Price v. Southern Home Ins. Co. of Carolinas, 100 Fla. 338, 129 So. 748 (1930). .See 9A Fla.Jur., Damages §§ 7-8. Accordingly, we hereby affirm the order awarding nominal damages for the breach involved in the cause sub judice.

See also Heard v. Mathis, 344 So.2d 651, 655 (Fla. 1st DCA 1977).

Regarding appellant’s second point, there is ample precedent for the trial court’s action in granting a new trial upon damages alone. A new trial may be granted on all or part of the issues. See Fla.R.Civ.P. 1.530(a). In Tolin Manufacturing Corp. v. Roy Feiner Handbags, Inc., 173 So.2d 714 (Fla. 3d DCA 1965), a new trial was granted on the issue of damages only. Similarly, in Roemelmeyer v. Richard A. Marshall Insurance Agency, 223 So.2d 753 (Fla. 3d DCA 1969), where the contested evidence had been offered solely to establish damages, the court held it was an abuse of discretion to order a new trial on both issues and reversed that part of the trial court’s order requiring a new trial on the issue of liability. We therefore conclude that the trial court did not abuse its discretion in awarding a new trial only as to the issue of damages. See Baptist Memorial Hospital, Inc. v. Beil, 384 So.2d 145 (Fla.1980).

As for cross-appellants’ argument that a new trial should not have been ordered on damages because evidence of the cost of constructing the road was the proper measure of damages, we are otherwise persuaded. Although the Florida courts have apparently not ruled as to the measure of damages for breach of a vendor’s agreement to make improvements on property not owned by the injured party, we are persuaded that the proper measure of damages should be predicated upon diminution in value as recited in Coughlin v. Blair, 41 Cal.2d 587, 262 P.2d 305, 312 (1953), specifically:

[T]he difference in value of the property with and without the promised performance, since that is the contractual benefit of which the injured party is deprived.

See also, Glendale Federal Savings and Loan Assn. v. Marina View Heights Development, Inc., 66 Cal.App.3d 101, 135 Cal. Rptr. 802 (1977); South Memphis Land Co. v. McLean Hardwood Lumber Co., 179 F. 417 (6th Cir. 1910).

Having duly considered all points raised by the parties, we affirm the trial court’s order.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.

      . While Dill’s name was included on the verdict, the trial court directed a verdict against him because of the assignment to Lanier and Lynch. The parties understood any judgment for Lanier and Lynch would not include Dill.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Evelyn WARMACK, as Personal Representative of the Estate of Katie Lee Smith, Deceased, Appellee.
    No. NN-89.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.
    Rehearing Denied Sept. 11, 1980.

      Toby S. Monaco and Mary P. Twitcliell of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, Gainesville, for appellant.
    Aaron A. Green, Gainesville, for appellee.
   PER CURIAM.

United States Fidelity and Guaranty Company (U.S.F.&G.) appeals a final declaratory judgment holding appellee/estate had not forfeited underinsured motorists’ benefits under the deceased’s insurance policy with U.S.F.&G. by proceeding to judgment against the underinsured motorist and could still demand arbitration. We hold appellee is not entitled to demand arbitration and accordingly reverse the lower court’s declaratory judgment.

Appellee’s decedent, Katie Lee Smith, was killed in a one car accident on February 22, 1976, while a passenger in a car owned and operated by William Ingram. Ingram was insured under a policy with Reserve Insurance Company (Reserve) which provided liability coverage up to $15,000 per person. Smith had a policy with U.S.F.&G. which provided underinsured motorist coverage up to $200,000.

On May 27,1976, appellee, after receiving permission from U.S.F.&G., brought a wrongful death action against Ingram and Reserve. Ingram counterclaimed against appellee, and at appellee’s request, U.S. F.&G. defended the counterclaim.

During the wrongful death action, appel-lee demanded $185,000 - from U.S.F.&G. in settlement of its underinsured motorists’ claim. U.S.F.&G. offered to settle for $25,-000 above the $15,000 limit of Ingram’s policy with Reserve, but this offer was rejected by appellee.

Following trial in the wrongful death action, the jury returned a verdict for appel-lee for $18,500. U.S.F.&G. then tendered to appellee $3,500 in payment of underinsured motorists’ benefits, the excess of Ingram’s policy limit. Appellee rejected the $3,500, claiming it was entitled to more notwithstanding the verdict. Ingram and Reserve paid appellee $15,000 and appellee executed a release with Ingram and Reserve.

Thereafter, appellee sought to compel U.S.F.&G. to arbitrate the underinsured motorists’ claim. U.S.F.&G. denied liability beyond the amount of the judgment and counterclaimed for a declaration of their liability under the policy. Subsequently, the lower court issued its final judgment, ruling that appellee was still entitled to demand arbitration.

The lower court erred in holding the appellee still had a right to demand arbitration of its underinsured motorists’ claim against U.S.F.&G. The judgment obtained by appellee against Ingram and Reserve established the amount of damages appellee was legally entitled to recover from the underinsured motorist; U.S.F.&G. fulfilled its obligation by tendering underinsured motorists’ benefits for the excess of the judgment over the limits of Ingram’s policy with Reserve.

The purpose of underinsured motorists’ coverage is to allow the insured the same recovery which he would be entitled to against a tort-feasor had the tort-feasor heen insured to the same extent as the insured himself. Dewberry v. Auto Owners Insurance Company, 363 So.2d 1077 (Fla.1978). Under such coverage, an insurer is liable only to the extent that the insured is legally entitled to recover from the underin-sured tort-feasor. Ronald Hughes v. State Farm, 294 So.2d 398 (Fla. 1st DCA 1974). Obviously, the ultimate purpose of underin-sured motorists’ protection is to provide coverage for what the insured could get if he sued the tort-feasor and recovered judgment against him.

In order to avoid litigation against the tort-feasor by the insured for the purpose of establishing the amount of damages to which the insured is entitled, the policy provides for arbitration if the insured and the carrier cannot agree on what the probable recovery would be if such a suit were brought. The arbitration provision is not intended, as appellee contends, to give the insured the right to establish his damages once by judgment against a tort-feasor, then, in addition, compel arbitration and choose the higher determination of recoverable damages. See Travelers Insurance Company v. Luckett, 279 So.2d 885 (Fla. 3d DCA 1973); Great American Insurance Company v. Pappas, 345 So.2d 823 (Fla. 4th DCA 1977).

Pursuant to the terms of appellee’s policy with U.S.F.&G., the conduct of the parties makes the prior judgment conclusive as to appellee’s underinsured motorists’' claim. The policy provides:

No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues and liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.

The record demonstrates appellee proceeded to judgment against Ingram and Reserve with the consent of U.S.F.&G. as evidenced by written correspondence between appellee and U.S.F.&G. These correspondences show appellee believed, at that time, U.S. F.&G. had consented to the wrongful death action. This is further supported by U.S.F. &G.’s actual participation in the litigation. It should also be pointed out that appellee’s failure to request consent to proceed to judgment against the uninsured or underin-sured motorist would have resulted in a waiver of such coverage. Aetna v. Jordan, 189 So.2d 408 (Fla. 1st DCA 1966).

Therefore, the lower court’s declaratory judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

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


text:
    James Lewis DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-920.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Rehearing Denied Sept. 15, 1980.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal and Lawrence J. Stein, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The issue presented by this appeal from an adjudication of guilt and sentence is whether defendant Davis was deprived of his right to a speedy trial. We hold that defendant was afforded his right to a speedy trial and affirm.

On September 6, 1977, the court accepted a guilty plea from defendant but clearly indicated that if the presentence investigation disclosed facts or circumstances which led the court to conclude the plea bargain was unfair or required a different disposition, the court would rescind its approval. On November 22,1977, the trial court found the plea unacceptable, but instead of rejecting the plea, the court suggested the defendant undérgo an evaluation to determine whether participation in a drug rehabilitation program could be of benefit as a condition of an acceptable plea. The trial court ordered a drug evaluation and postponed sentencing until January of 1978.

No action was taken, in fact, until March, 1978, when defendant tendered a new negotiated plea which contained a special probationary condition that he enter a drug rehabilitation program. In response to the court’s questions, however, defendant disclosed an attitude about the use of drugs which was inconsistent with the tendered plea. The court then rejected the plea and set trial for April 3, 1978.

Defendant moved for discharge claiming that the speedy trial requirements of Rule 3.191, Florida Rules of Criminal Procedure, required his trial to have been held no later than November 2, 1977. This motion for discharge was denied, and defendant was tried, convicted, and sentenced. Defendant now appeals his conviction and sentence on the ground that he was deprived of his right to a speedy trial.

Upon the trial court’s conditional acceptance of defendant’s plea on September 6, 1977, jeopardy attached and the speedy trial rule ceased to apply. See State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978). After the plea had been accepted, defendant was no longer available for trial. When the court later rejected the plea, it properly set trial within a reasonable time. State ex rel. Wilhoit v. Wells, supra. See generally, Butterworth v. Fluellen (Fla.1980) (Case No. 57,385, opinion filed July 24, 1980). Under these circumstances, defendant was afforded his right to a speedy trial.

The adjudication and sentence are affirmed.

      . This order was later vacated since an evaluation had already been conducted.


text:
    Lois WHITE, etc., Appellant, v. ROUNDTREE TRANSPORT, INC., etc., et al., Appellees.
    Nos. 79-1229, 79-1361.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Rehearing Denied Sept. 19, 1980.

      Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Lanza, Sevier & Womack and Mel Lame-las, Coral Gables, for appellees.
    Before BARKDULL, HUBBART' and BASKIN, JJ.
   PER CURIAM.

This appeal challenges an order distributing attorney’s fees between two law firms involved in representing the estate and the survivors of Johnny Clayton White. We reverse.

Lois White, the widow of the deceased and the personal representative of the estate, retained the law firm of Magill, Sevier & Reid, P.A., to represent her in a wrongful death action. Another attorney, Sam Bloom, pursued a worker’s compensation claim on behalf of Mrs. White and also acted as co-counsel on the wrongful death claim. At the initial meeting with her counsel, Mrs. White advised the attorneys that there were two surviving minor children from a prior marriage of Mr. White. The complaint that Bloom and Magill filed in the wrongful death action sought damages on behalf of Lois White and the minor children.

In the meantime, Catherine Hulett, the mother of the two children and former wife of the deceased, retained the law firm of Talburt, Kubicki & Bradley on a 40% contingent fee contract to pursue any claims Hulett or her two children might have as a result of White’s death. The Talburt firm pursued a worker’s compensation claim on behalf of the children and ultimately intervened in the pending wrongful death action.

Eventually, the Magill firm obtained summary judgments establishing liability against the defendants in the wrongful death action and settled Mrs. White’s claim for damages. In resolving the claim of the children, the Talburt firm obtained a settlement of $125,000. Under the 40% contingent fee contract, Talburt had earned a fee of $50,000.

Mrs. White then petitioned the trial court for an allocation of attorney’s fees payable to Magill out of the $50,000 contingent fee as compensation for the services Magill performed for the children. After conducting a hearing, the trial court entered an order to distribute a portion of the fee accruing to Talburt, Kubicki to Magill as the “fair and reasonable value of legal services rendered by Magill on behalf of the minor children.” The trial court awarded Magill “50% of the earned fee of the first $50,000 or the sum of $10,000.00 and 25% of the earned fee on the balance of $75,000.00 or the sum of $7,500.00 making a total fee of $17,500.00.” The Talburt firm takes this appeal from that order.

An attorney’s right to a fee terminates when the attorney realizes or should realize that he cannot ethically represent his client’s interests. See Hill v. Douglass, 271 So.2d 1 (Fla.1972). At the hearing on attorney’s fees, Mr. Bloom and an attorney from the Magill firm conceded that there was a conflict in the positions of Mrs. White and the children concerning the division of the worker’s compensation award and that a similar conflict became apparent in the wrongful death action as it progressed. There was also evidence that the Magill firm knew or should have known of this conflict from the commencement of the wrongful death action.

The Magill firm is not entitled to any portion of the fee earned by the settlement on behalf of the children. Fla.Bar Code Prof.Resp., Canon 5 and DR5-105.

In light of our disposition of the first issue raised, we need not address the merits of any other points raised on this appeal.

For the foregoing reasons, the order on distribution of fees is reversed.

      . This firm is now known as Lanza, Sevier & Womack, P.A.

      . See § 440.16(2), Fla.Stat. (1975).


text:
    George STEPHENS, Appellant, v. KIES OIL COMPANY, INC., a Florida Corporation, and Joel C. Stephens, Jr., Appellees.
    Nos. 79-1278, 79-1383.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.

      Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Miami, for appellant.
    Wakefield, Hewitt & Webster and Harold D. Moorefield, Jr., Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Appellant, Stephens, seeks reversal of a summary final judgment in favor of appel-lee, Kies.

Kies, an oil distributor, commenced an action against Stephens seeking recovery for goods sold and delivered to Stephens as owner of an automotive service center. Stephens filed an answer containing a general denial.

After discovery was taken, the only viable issue remaining was whether Stephens owned the station in question. Ste-ions contended that he made an oral agreement to transfer ownership to his nephew under which the nephew was to assume all outstanding obligations. Kies filed a motion for summary judgment relying upon depositions and other proof before the court to show that the alleged sale constituted a fraud upon Kies because the classical badges of fraud which would void a sale were present. § 726.01, Fla.Stat. (1979). These included: (a) sale to a relative; (b) sale while Stephens was indebted to Kies; (c) no consideration passed between Stephens and his nephew in the alleged sale; and (d) Stephens retained ostensible possession of the premises as evidenced by his later bona fide sale to a third party. These badges of fraud create a pri-ma facie case and raise a rebuttable presumption that the sale was void. Money v. Powell, 139 So.2d 702 (Fla.2d DCA 1962); Tornwall v. Carter, 106 So.2d 96 (Fla.2d DCA 1958).

The badges of fraud demonstrated by Kies, standing alone, unrebutted and uncontradicted would entitle Kies to a directed verdict. Gyorok v. Davis, 183 So.2d 701 (Fla.3d DCA 1966). It is the intent to defraud one’s creditors which is a vital element to be established under Section 726.01, supra. Jackson v. Citizens’ Bank & Trust Co., 53 Fla. 265, 44 So. 516 (1907).

In the present case, there was evidence presented of Stephens’ motivation for selling the business. He attempted to justify the subsequent sale to a third party with allegations of: (1) his nephew’s inability to generate sufficient earnings from the business to make the installment payments; and (2) his nephew’s request for him to return to find another purchaser so as to salvage what he could from the business. These factors tend to rebut and contradict the presumption, raised by the badges of fraud demonstrated by Kies, that the sale was void and create an issue to be resolved by the trier of fact.

Summary judgment is available in fraud cases only in extraordinary circum-stances. Automobile Sales, Inc. v. Federated Mutual Implements and Hardware Insurance Company, 256 So.2d 386 (Fla.3d DCA 1972). Because of this question as to Stephens’ intent to defraud Kies, the presumption against the existence of fraud has not been conclusively met and entry of summary judgment was premature. McCrary v. Bobenhausen, 366 So.2d 77 (Fla. 1st DCA 1977).

The summary final judgment is reversed and remanded for further proceedings.


text:
    Charles H. KULP, Petitioner, v. GENERAL SHEET METAL & ROOFING, INC., Muriel Keen and Muriel Keen, as executrix of the Estate of John Paul Keen, Jr., Deceased, Respondents.
    Nos. 79-2332, 79-2432.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Rehearing Denied Sept. 15, 1980.
    Barnett & Kress and R. P. Barnett, Miami, for petitioner.
    Britton, Cohen, Kaufman, Benson & Schantz and Alfonso J. Perez, Miami, for appellees.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Charles Kulp, one of the defendants below, appeals from two orders, one striking portions of the third amended complaint filed by General Sheet Metal & Roofing, Inc., the other changing a prior order of dismissal with prejudice to a dismissal without prejudice. Pursuant to Rule 9.040(c), Florida Rules of Appellate Procedure, we treat these consolidated appeals as petitions for writs of certiorari. Because we hold that the trial court acted in accordance with the essential requirements of the law, we decline to issue the writs.

On August 3,1979, the trial court entered an order dismissing the second amended complaint filed by General Sheet Metal. The order of dismissal granted leave to file a third amended complaint in twenty days; if no amended pleading was filed within the allotted time, the action would stand dismissed with prejudice.

An amended complaint was filed, but not until September 11,1979, several days after the twenty days had elapsed. Kulp responded with a motion to strike the third amended complaint on the ground that the action had already been dismissed with prejudice. The trial court, however, entered an order striking only portions of the third amended complaint. Sometime later, the trial court entered the second order appealed. That order modified the August 3rd order of dismissal to reflect that the dismissal was without prejudice.

The order of August 3, 1977, which dismissed the cause but granted leave to amend, was nothing more than an interlocutory order that did not divest the trial court of its jurisdiction. Hancock v. Piper, 186 So.2d 489 (Fla.1966); Epley v. Washington County, 358 So.2d 592 (Fla. 1st DCA 1978); Brandal v. State Farm Mutual Automobile Insurance Co., 310 So.2d 780 (Fla. 1st DCA 1975). Because the order of dismissal was not final, the trial court maintained discretion to entertain the belatedly filed third amended complaint. The record discloses no error in the trial court’s decision to strike only a portion of the third amended complaint.

Upon Kulp’s motion for rehearing of his motion to strike, the trial court entered an order changing the dismissal with prejudice to a dismissal without prejudice. Kulp contends that this action by the trial court was error because the modification was not made within the ten day post-judgment period for motions, nor'was it made in accordance with Rule 1.540, Florida Rules of Civil Procedure, which permits the trial court to correct clerical mistakes or other errors arising from oversight or omission. Neither argument has any merit because a final order or judgment had not been entered. The amended order of dismissal merely reflects the intended nature of the order of August 3, 1977, and is itself non-final.

For these reasons, the petitions for writs of certiorari are denied.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. James CURRIE, Appellee.
    No. 80-173.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.

      David H. Bludworth, State’s Atty., and Maurice J. Hall, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   HERSEY, Judge.

The state appeals from an order discharging appellee under the “speedy trial” rule. We conclude that the time within which appellee could have been brought to trial had not expired at the time appellee filed his motion for discharge and we therefore reverse.

Rule 3.191(a)(1), Florida Rules of Criminal Procedure, provides that a person charged with a felony must be brought to trial within 180 days after the person “is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” The issue in this case is when the 180 days began to run.

Appellee is charged in three counts with three separate and distinct episodes involving uttering a forgery.

As to one instance of uttering a forgery appellee was taken into custody and put in the Palm Beach County Jail on March 23, 1979.

After some intervening events not pertinent to the issue on appeal, appellee, on April 9, 1979, was taken to Miami on various warrants issued there, where he was again incarcerated.

On that same day, April 9th, an information was filed in Palm Beach County containing three counts of uttering a forgery, only one of which was related to the earlier incarceration in Palm Beach County. A capias then issued on the two new charges, which capias was executed and filed with the clerk’s office on April 17, 1979.

Subsequently appellee’s pro se motion for transfer back to Palm Beach County was granted and on October 15, 1979, he was returned to the Palm Beach County Jail where he was later arraigned.

On December 13, 1979, appellee filed his motion for discharge which was granted on January 15, 1980.

Appellee was originally in custody in Palm Beach County on only one of the three counts eventually lodged against him. When the capias was issued and executed on the two additional counts appellee was in custody in Dade County. The capias therefore acted only as a detainer and appellee could not be considered in the custody of Palm Beach County authorities with reference to these two later counts. Under these circumstances the speedy trial time of 180 days is computed from the time appel-lee was returned to custody in Palm Beach County, or October 15,1979. State v. Bassham, 352 So.2d 55 (Fla.1977); Eaddy v. State, 352 So.2d 98 (Fla. 4th DCA 1977). His motion for discharge was therefore premature and should have been denied.

The order granting the motion for discharge under the speedy trial rule is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


author: DOWNEY, Judge.

text:
    Lawrence G. NUSBAUM, Appellant, v. Norma B. NUSBAUM, Appellee.
    No. 79-1652.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.
    David L. Kline of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellant.
    Thomas P. Quinn, Lauderdale by the Sea, for appellee.
   DOWNEY, Judge.

This is an appeal from a final judgment in a dissolution of marriage proceeding. The husband complains about two aspects of the judgment which a) awarded the wife lump sum alimony in the amount of $125,-000 and b) awarded the wife one-half of a $15,000 certificate of deposit. The husband contends both awards were erroneous, relying upon Yandell, White and Simpson, among others, to demonstrate that the lump sum award was wrong; and Ball to show the certificate of deposit distribution was improper. We affirm the lump sum alimony award and reverse the award regarding the certificate of deposit.

The trial judge found that the parties were married for eighteen years; the husband, age seventy-seven, and wife, age sixty-nine, both suffered from medical disabilities and the wife was not employable. The husband had a net estate of approximately $850,000 and an annual income of approximately $55,000. This income was generated from the husband’s investments, as he was not employed or engaged in any income producing business. The wife had assets valued at $60,000 and income annually of approximately $4,000. During the marriage the parties maintained a luxurious standard of living and the husband admits the award of lump sum alimony will not impair his financial status.

The evidence reflects that in 1978 the wife was dissatisfied with the/ provisions made for her in the event of her husband’s death and so she prevailed upon him to purchase a $15,000 certificate of deposit and place it in their joint names. They orally agreed that it was to help take care of her in case he died. In order to purchase the certificate of deposit the husband borrowed the money from a bank on his signature alone and all of the income from the certificate went solely to him. She readily admitted the funds were his.

The trial court, among other things, awarded the wife lump sum alimony in the amount of $125,000 and held that she was entitled to one-half of the jointly held certificate of deposit.

Regarding the award of lump sum alimony, appellant’s first contention is that such an award was defective because the appellee wife had not specifically prayed for lump sum alimony. In fact, she did pray for temporary and permanent alimony. The identical argument was made in Cyphers v. Cyphers, 373 So.2d 442 (Fla. 2d DCA 1979), and Caidin v. Caidin, 367 So.2d 248 (Fla. 3rd DCA 1979), and both courts rejected it. The Caidin court said:

Appellant argues the court was without authority to award alimony in lump sum because the wife, in her petition for dissolution of marriage, did not ‘allege a claim for lump sum alimony,’ citing Foxx v. Foxx, 357 So.2d 754 (Fla. 1st DCA 1978), in which the court so stated. Here the wife’s petition alleged a claim for temporary and permanent alimony. It is true that the wife in her petition did not undertake to tell the court how to order the payment of such alimony as should be allowed, that is, as to whether the payment of alimony allowed should be ordered to be made by periodic payments or by lump sum payment or by both. However, authority to choose the method of payment of alimony was not granted by law to the petitioner but to the court, by Section 61.08, Florida Statutes (1977). To the extent that entitlement to alimony could be made to depend on a request for it by the wife in her pleading, she complied by her request therein for an allowance of alimony. 367 So.2d 250.

We find the award of lump sum alimony justified under the recent holding by the Supreme Court of Florida in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). There the Court said a lump sum award is proper:

. provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. 382 So.2d at 1201.

The Canakaris Court pointed out that in making the determination to award lump sum alimony the trial judge is exercising a broad discretion to ensure equity and justice between the' parties. Appellate courts were admonished to exercise restraint and caution in reviewing the trial court’s exercise of its discretion and to keep hands off unless that discretion is exercised in an arbitrary, fanciful or unreasonable way.

Adverting once again to the facts of this case, the husband’s assets are adequate quantitatively to meet the lump sum award. Furthermore, the length of the marriage, the life style of the parties, their age and health at the time of the dissolution all demonstrate the award was not arbitrary, fanciful or unreasonable.

The appellant contends that the lump sum award was actually an attempt by the trial judge to fashion a post death allowance for the wife in view of the husband’s poor health. Such a consideration in the award of lump sum alimony does not constitute an abuse of discretion providing it achieves the most equitable result. As the Court stated in Canakaris :

. [A] trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ 382 So.2d at 1204.

With regard to the certificate of deposit, we find the refusal to award the husband a special equity in the certificate of deposit was error based upon Ball v. Ball, supra. Ball stands for the proposition that record title governs unless one party can plead and prove a special equity in the property. A party may establish a special equity by proving an extraordinary contribution toward the subject property. A special equity is created by an unrebutted showing that all consideration for the property was supplied by one spouse from a source clearly unconnected with the marital relationship. The other spouse may negate this showing by proving there was a gift intended.

In the instant case the uncontrovert-ed testimony is that Lawrence Nusbaum supplied all the consideration for the $15,-000 certificate of deposit by borrowing the money from a lending institution to purchase the certificate. Since he did not work, the repayment of said loan would, of necessity, have to come from income from his assets which predated the marriage, or from liquidation of some of those assets. The appellee made no contribution whatsoever toward the certificate and she admitted the funds were his. The evidence does not suggest that a gift was intended. The sole purpose of the $15,000 joint fund was to provide for Norma in the event of Lawrence’s death. Applying the Ball analysis to the facts herein it would appear that a reversal is in order on this point.

Accordingly the judgment appealed from is affirmed in all respects except as to Paragraph 6 of the decretal portion of the judgment directing the certificate of deposit be exchanged for cash and divided equally between the parties. Upon remand the trial court is directed to award the certificate of deposit to appellant.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

ANSTEAD and HERSEY, JJ., concur.

      . Yandell v. Yandell, 39 So.2d 554 (Fla.1949); White v. White, 314 So.2d 187 (Fla. 4th DCA 1975); Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979).

      . Ball v. Ball, 335 So.2d 5 (Fla.1976).

      . During the pendency of this appeal a suggestion of death was filed as to the appellant, Lawrence G. Nusbaum.


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. James Corbett McKEE, Appellee.
    No. 79-1688/T4-689.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Edward R. Kirkland, P. A., Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from two orders dismissing informations which charged the unlawful delivery of controlled substances. By motions pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, the appellee moved the court to dismiss the informations. He accompanied the motions with his affidavits which said he is a licensed naturopath and that he “prescribed the drugs” in good faith in the course of his professional practice as allowed by section 893.05(1), Florida Statutes (1979).

Had the state not traversed the motion by specifically denying that the appellee fell under the exception of the statute, perhaps the motion should have been granted. However, the state did traverse the motion with sufficient factual matters which dispute the appellee’s allegation that he “prescribed [the drugs] in good faith and in the course of his professional practice.” The state’s traverse says the appellee had been ordered by another circuit judge not to dispense the drugs; that the appellee’s federal registration as a person qualified to dispense the drugs had been voluntarily surrendered, and that appellee had lied to a pharmacist about his license and authority to prescribe.

The traverse is sufficient to raise material issues of fact and thus preclude the granting of the (c)(4) motions. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975).

The orders dismissing the informations are reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


text:
    Walter A. PARKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-486.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    I. Paul Mandelkern of Russ & Mandel-kern, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED. State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980). Contra, Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978).

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


text:
    BANCO DEL COMERCIO, Appellant, v. Jorge BARCO, Appellee.
    No. 79-2072.
    District Court of Appeal of Florida, Third District.
    Aug. 19, 1980.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Michael C. Cesarano, Miami, for appellant.
    J. James Donnellan, III, Miami, for appel-lee.
    Before BARKDULL and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

After filing an action in Colombia, S. A., on a note executed in and payable in Colombia, the appellant filed a subsequent action on the same note in the Circuit Court in and for the Eleventh Judicial Circuit. Upon the trial judge concluding that the prior action was still pending in Colombia, he dismissed the second action with prejudice. This appeal ensued.

We sustain the trial judge’s discretion in dismissing the second cause. Hagen v. Viney, 124 Fla. 747, 169 So. 391 (1936); Mc Wane Cast Iron Pipe Corporation v. McDowell-Wellman Engineering Company, 263 A.2d 281 (Del.1970); Fitch v. Whaples, 220 A.2d 170 (Me.1966); Anno. 19 A.L.R.2d 301, 317, § 5. However, we modify it by this opinion to make the dismissal without prejudice. Rashard v. Cappiali, 171 So.2d 581 (Fla. 3d DCA 1965); National Carloading Corp. v. Gemini Transportation, Inc., 364 So.2d 504 (Fla. 3d DCA 1978).

Affirmed as modified.


text:
    Willie James SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 78-1586.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have reviewed all of appellant’s points on appeal and find no error demonstrated except the conviction and sentence of appellant on Count IV of the indictment. The aggravated assault upon Mrs. Johns was an element of the crime of robbery of Mrs. Johns. Since appellant was convicted and sentenced for that robbery, he can not also be convicted and sentenced on the lesser included offense.

Accordingly, we affirm the judgment and sentence in all respects except as to the conviction and sentence for Count IV and remand the case to the trial court with directions to vacate the judgment of conviction and sentence on Count IV.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED with directions.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


text:
    PEERLESS ELECTRIC COMPANY, INC., a Florida Corporation, Appellant, v. Melvin T. GOLDBERGER, Trustee et al., Appellees.
    No. 79-81.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 18, 1980.
    Chad P. Pugatch of Houston, Faircloth, Cooper, Easthope & Kelley, Fort Lauder-dale, for appellant.
    Curtis G. Levine of Baskin & Sears, Boca Raton, for appellees.
   HERSEY, Judge.

. This is an appeal from a judgment awarding partial payment to a subcontractor for work done pursuant to a construction contract. A portion of the payment demanded by the complaint was disallowed by way of set-off in favor of the general contractor. The trial court refused to impress a lien on the real property improved by virtue of the construction.

Appellant, Peerless Electric Company, Inc., entered into a contract with Hofco, Inc. which provided for Peerless to furnish the electrical work, including labor and materials, for the construction of a condominium apartment building in Highland Beach, Florida. Hofco, as General Contractor, was later replaced by Regency Highland Corporation and still later by Wadsworth and Sabrice. The real property on which the building was to be constructed was acquired in March of 1974 by Melvin T. Goldberger, Trustee. The beneficial owner, in September of 1974, wás shown by the Notice of Commencement to be Regency Highland Associates, a joint venture. In October of 1976 the property was conveyed to Regency Highland Associates, a Florida general partnership.

When Wadsworth and Sabrice were substituted as general contractors to complete construction of the building commenced by Hofco, a new agreement was entered into with Peerless for completion of its portion of the work. That subcontract-agreement contained a waiver of lien provision.

After substantially completing its work under the contract and having received various progress payments, Peerless requested final payment in the amount of $48,143.89. Payment was refused on the grounds of certain improper and incomplete items although a retainage of $30,419.51 remained of the original contract sum.

Appellant filed suit seeking recovery of the amount alleged to be due under the contract and imposition of a lien against the real property to secure payment of that amount. The legal theories relied on to accomplish the foregoing included foreclosure of a mechanic’s lien, imposition of an equitable lien, damages for breach of contract, and restitution for unjust enrichment.

At the close of plaintiff/appellant’s case in the trial court, directed verdicts were entered in favor of the individuals comprising the joint venture, Regency Highlands Associates. The order of November 27, 1978 accomplishing this was a non-final order which is properly before us in this plenary appeal from the final judgment entered on December 4, 1978. This order is supported by competent, substantial evidence, and we therefore affirm the directed verdicts.

The issues resolved by the final judgment are slightly more complex. The judgment awards Peerless, before set-offs, the amount of $30,419.51 against Regency Highlands Corporation. This is supported by a specific admission in the written agreement between these two parties dated January 21, 1976 that the amount of retainage as of that date was $30,419.51. This evidence is uncontroverted and we therefore approve that aspect of the final judgment. The evidence as to other and additional sums alleged to be due was a matter for the trial court to determine and it would be improvident for us to inquire into the weight or credibility of that evidence. In re Estate of Balch, 215 So.2d 343 (Fla.4th DCA 1968).

We consider next the propriety of that part of the judgment which charges against the amounts initially found to be due Peerless an offset in the amount of $7,165.91 for “incompleted (sic) work.” The evidence supporting this amount is inconclusive and unconvincing; furthermore, the evidence establishing a right to set-off in any amount is nebulous if not non-existent. Therefore, the trial court erred in reducing the judgment by way of a set-off. Appel-lee, Regency Highlands Corporation, admitted through its counsel during trial that the amount in question was not damages as to it. However, the trial court allowed testimony on this point by defendants’ witness “to show the amount of work that he is claiming is defective or not completed.” Peerless may owe someone $7,165.91 because of defective or incomplete work, but it does not owe Regency Highlands Corporation that or any other amount. We are not aware of any legal theory which would permit the recovery by Peerless against this corporation to be reduced, by way of set-off, in the manner accomplished by. the final judgment. We determine that the trial court committed error in that regard.

To further confuse the issue there was some evidence that amounts representing improper or incomplete work under the Peerless subcontract had previously been back-charged against Peerless by Wads-worth and Sabrice. In effect, therefore, the final judgment would have Peerless pay twice for the same items. In view of our previous disposition of this point it is unnecessary to consider the effect of that evidence. We find that it does, however, constitute additional support for our holding that the set-off is improper.

Finally, we turn our attention to the trial court’s determination that Peerless is not entitled to enforce a lien against the real property as security for the amount found to be due. Appellant apparently abandoned any attempt to enforce a mechanics’ lien by filing an amended complaint which sought, instead, to have the court impress an equitable lien on the property. The trial court denied this form of relief on several grounds. Since we find one of those grounds sufficient to support the holding, we do not discuss the others.

Peerless entered into a new agreement with Wadsworth and Sabrice to complete work on the project which had been halted when the previous general contractor abandoned the project. That new contract contained the following provision:

ARTICLE XVII. The Subcontractor for itself, its subcontractors, its material men and all other persons acting for, through or under it or any of them covenants that no mechanics liens or claims shall be filed or maintained by it, them or any of them against the said building and lot of ground appurtenant thereto or any part thereof, for or on account of any work or labor done or materials furnished by it, them or any of them under this Contract or any alterations thereof, supplement or addition thereto or otherwise for, towards in or about the erection and construction of the said building, and the Subcontractor itself and its subcontractors and all persons acting for, through, or under it, them or any of them hereby expressly waives and relinquishes all right to have filed or maintained any mechanics liens or claims against the said building or lot of ground appurtenant thereto or any part thereof, and agrees that this agreement waiving the right of lien shall be an independent covenant and shall operate and be effective as well with respect to work and labor done and materials furnished under any supplemental contract or contract for extra or additional work although not herein or therein referred to as to work and labor done and materials furnished under this Contract.

We construe that language as an irrevocable undertaking to waive both mechanics’ liens and equitable liens whether arising out of the past, present or future work on the real property, so long as that work was contemplated by the written agreement. We find, further, that all of the work referred to in the amended complaint was contemplated by the agreement. Accordingly, we do not disturb the trial court’s refusal to impose a lien on the real property-

So much of the judgment as awards damages to appellant in the amount of $30,-419.51 and refuses to impress a lien on the real property is affirmed. We also affirm the directed verdicts. That portion of the final judgment giving appellee the benefit of a set-off is reversed. The cause is remanded with instructions to enter final judgment for appellant in the amount of $30,419.51.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Marvin BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 79-430.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Richard L. Jorandby, Public Defender, and Dean L. Willbur, Jr., Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Samuel Wayne JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 79-542.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant claims that the trial court erred in failing to sentence him in accord with the provisions of Section 39.111(6), Florida Statutes (1979). We agree. The state proceeded against appellant, a juvenile, by direct information filed pursuant to the provisions of Section 39.04(2)(e)4, Florida Statutes (1979). In such case the trial court is obligated, when imposing adult sanctions on a juvenile as was done here, to make findings of fact and evaluate the juvenile based on the criteria set out in Section 39.111(6). State v. Cain, 381 So.2d 1361 (Fla.1980); Stallins v. State, 385 So.2d 1171 (Fla.2d DCA 1980). But see Postell v. State, 383 So.2d 1159 (Fla.3d DCA 1980).

Accordingly, the sentence of the appellant is hereby vacated and this cause is remanded for further proceedings in accord herewith.

LETTS, C. J., and ANSTEAD and HERSEY, JJ.,- concur.


author: BERANEK, Judge.

text:
    Joan K. BENIGNO, Appellant, v. CYPRESS COMMUNITY HOSPITAL, INC., Appellee.
    No. 79-1269.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 17, 1980.
    Leo Greenfield, Law Offices of Leo Greenfield, P. A., North Miami, for appellant.
    Ricardo J. Cata of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   BERANEK, Judge.

Plaintiff appeals from a final judgment after jury verdict in a medical malpractice/wrongful death action against a hospital/health care provider. We affirm.

Plaintiff’s husband, a stroke victim, was hospitalized in defendant, Cypress Community Hospital, Inc. While recovering from surgery, Mr. Benigno fell from a chair in which he had been placed by a hospital employee pursuant to his doctor’s orders.

A restraining device had been used to secure him in the chair. Several days later, Mr. Benigno died from a pulmonary embolism. Mrs. Benigno sued the hospital asserting that the fall caused her husband’s death and that the hospital was negligent. The trial court denied plaintiff’s request for an instruction on res ipsa loquitur and submitted the case to the jury on the issues of defendant’s negligence and causation. The jury returned a verdict for defendant.

Plaintiff argues on appeal that the trial court erroneously denied her requested jury instruction on res ipsa loqui-tur. The doctrine of res ipsa loquitur applies, “. . . when direct evidence of negligence is unavailable to the plaintiff due to the unusual circumstances of the injuring incident.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1341 (Fla. 1978). Plaintiff herein failed to establish the essential elements of the doctrine and to demonstrate a lack of available evidence pertaining to the occurrence. In fact, contrary to application of the doctrine, plaintiff presented substantial direct testimony regarding the defendant’s alleged negligence in placing decedent in the chair. In attempting to prove the hospital’s negligence, plaintiff introduced the testimony of numerous experts, the hospital personnel, and the doctors and nurses involved in decedent’s care. We conclude this was not a proper case for a res ipsa loquitur instruction.

We further conclude that the jury’s verdict of no liability is well supported by the evidence and that the plaintiff has failed to demonstrate reversible error. The evidence tending to show any causal connection between the fall and the eventual death was extremely weak. Furthermore, at no point during the proceeding did plaintiff seek to separate the issues of negligence and causation. Even if we assume that the hospital was negligent in allowing decedent to fall from the chair, plaintiff does not seek recovery for the direct trauma of the fall. There was barely enough evidence to take the case to the jury on the issue of causal connection between the fall and the death, and the verdict was definitely not against the weight of the evidence.

Plaintiff has failed to demonstrate that the absence of a res ipsa loquitur instruction was error or that the jury’s verdict was otherwise improper. Final judgment below is, therefore, affirmed.

AFFIRMED.

GLICKSTEIN, J., and SIMONS, STUART M., Associate Judge, concur.

      . Plaintiff must prove two elements for application of the doctrine:
      (1) The instrumentality involved was under the exclusive control of the defendant. (2) The accident is one that would not have occurred without negligence on the part of the one in control. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., supra, 1341-1342.


text:
    VILLAGE OF ROYAL PALM BEACH, a municipality of the State of Florida, Appellant, v. HOME BUILDERS AND CONTRACTORS ASSOCIATION OF PALM BEACH COUNTY et al., Appellees.
    No. 79-1538.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 22, 1980.
    Herbert P. Benn of Blank, Williams & Benn, West Palm Beach, for appellant.
    John W. Dell of Dell & Casey, P.A., West Palm Beach, for appellees.
   PER CURIAM.

We adopt the findings of fact and conclusions of law contained in the final judgment from which this appeal is taken and affirm on the authority of Broward County v. Janis Development Corporation, 311 So.2d 371 (Fla. 4th DCA 1975), and Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978).

AFFIRMED.

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


text:
    ARROWHEAD CONDOMINIUM, INC., Appellant, v. Douglas T. BELL and Marilyn G. Bell, his wife, Appellees.
    No. 79-1732.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Edward S. Polk of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellant.
    Douglas T. Bell and Marilyn G. Bell, pro se, for appellees.
   PER CURIAM.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., and SIMONS, STUART M., Associate Judge, concur.


text:
    TESHER & TESHER, P.A., Appellant, v. Thomas P. COOK, Murray Donitz, Joseph P. Marrocco and Dental Insurance Plans, Inc., a Florida Corporation, Appellees.
    No. 79-2001.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.

      Jeanne E. Faiks, Fort Lauderdale, for appellant.
    Norman Marcus of Marcus & Stark, P.A., Plantation, for appellee, Donitz.
   PER CURIAM.

This appeal from a non-final order presents the question of the proper interpretation to be placed upon the term “prior pleading” appearing in Rule 1.110(d), Florida Rules of Civil Procedure.

In Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977) we announced the rule that the defense of res judicata may not be raised by motion to dismiss except where the allegations of the complaint support application of that defense. Appellee suggests that the following language from Rule 1.110(d), mandates a different result under the particular facts of this case:

Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b); provided this shall not limit amendments under Rule 1.190 even if such ground is sustained.

Appellee contends that his answer and affirmative defenses is a “prior pleading” which on its face raises the defense of res judicata so that dismissal was appropriate under the rule. However, this argument ignores the language of Rule 1.110(d), appearing prior to that quoted above, which states that a party, in pleading to a preceding pleading, shall set forth affirmatively certain defenses, including res judicata. Thus, a reading of the rule in its entirety reveals that the term “prior pleading” refers to one or more prior pleadings of the party against whom the motion to dismiss is directed. Further, to accept the thesis of appellees’ argument would be to condone the use of a motion to dismiss in lieu of a motion for judgment on the pleadings or as the equivalent of a motion for summary judgment. Each type of motion has its particular function, with different requirements precedent to its application and, for the most part, with different consequences to the parties resulting from a determination of the merits of the motion. No purpose is served by substituting the function of one motion for another.

We therefore reverse that portion of the order, rendered August 14, 1979, which dismissed the complaint with prejudice as to defendant Donitz on the basis of res judica-ta. In all other respects the order is affirmed.

Appellant also attempts to bring up on this appeal a non-final order entered on March 19, 1979. In view of our disposition of the later order, we do not consider either the appealability or the correctness of the March 19th order at this time.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


text:
    Richard Donald DuPONT, Appellant, v. STATE of Florida, Appellee.
    No. 79-2072.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Sept. 24, 1980.
    Victor Tobin, Fort Lauderdale, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    Diana Jean DRAKE, Appellant, v. Robert Michael DRAKE, Appellee.
    No. 79-2264.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Charles W. Musgrove, West Palm Beach, for appellant.
    Kenneth H. Renick of Renick, Zwickel & Gross, Lake Worth, for appellee.
   HERSEY, Judge.

The natural mother appeals that portion of a judgment of final dissolution of marriage which awards custody of her minor child to relatives of the husband. It is true that a natural parent has a God-given right to have and enjoy the custody, fellowship and companionship of his or her child. So, too, does the child have rights. On balance, it is the child’s rights which must prevail in child custody cases. Cone v. Cone, 62 So.2d 907 (Fla.1953). The trial court found that the best interests of the child were served by continuing custody in the husband’s relatives. This choice of custodian accords with the principle that where a parent is found to be unfit the court should award custody to a close relative if there is one who is fit, ready, able and willing to be awarded custody. In Interest of W. H., 356 So.2d 34 (Fla. 1st DCA 1978). As for the trial court’s findings on unfitness and related issues, we could not conclude from this record that the trial court acted arbitrarily or abused its discretion. We are therefore admonished by applicable law to presume the correctness of the judgment, Justice v. Van Eepoel, 132 So.2d 407 (Fla.1961). We do so and affirm.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Edith P. CLAFFEY, Appellant, v. Cornelia A. MYERS, Appellee.
    No. 80-172.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Richard K. Inglis, Fort Lauderdale, for appellant.
    Jack Block, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Curtis ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-1052.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Curtis Adams, Jr., in pro. per.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Pedro PACHECO, Appellant, v. STATE of Florida, Appellee.
    No. LL345.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1980.
    Michael J. Minerva, Public Defender, John D. C. Newton, Louis G. Carres and Harold W. Long, Jr. and Margaret Good, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski and Miguel A. Olivella, Jr., Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant was found guilty, on circumstantial evidence, of possessing more than 100 pounds of cannabis. We reverse because the record evidence connecting Pacheco to the marijuana in this case is fatally deficient.

On Thanksgiving Day 1977, a Fernandina Police Department patrolman investigated a reported burning boat at Ft. Clinch State Park. When he arrived at the scene, three men were sitting on the end of the boardwalk about 150 yards from the vessel, which was anchored some 30 feet off shore. The officer also observed a dinghy beached between the boat and the boardwalk.

The boat proved to contain bails of marijuana, which apparently had been set afire. Evidence ostensibly connecting appellant to the contraband was that the first policeman saw no one on the beach other than appellant and his companions; there were three sets of footprints leaving from the dinghy toward the boardwalk; two footprints appeared to have been made by persons in stocking feet, one by a barefooted person; and two of the men had on wet clothing but the third was dry.

Testimony, however, also indicates that no casts or photographs of the footprints were made. No fingerprints were taken from the burning boat or the dinghy. The officer who arrived first at the scene acknowledged on cross-examination that in a prior deposition he had said two sets of footprints appeared to have been made by persons wearing “sneakers or something.” The evidence did not establish which of the three men were wet and which was dry.

There was no evidence demonstrating that appellant had exclusive control of the cannabis-laden boat. The prosecution’s burden therefore was to prove appellant had constructive possession of the contraband by virtue of joint control of the boat with knowledge of its contents. Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977); Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 462 (Fla. 1979); Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976).

The evidence, as outlined above, suggests neither joint control nor knowledge. The footprints were not identified as Pacheco’s, nor does the record indicate whether he was barefoot or in stocking feet or in “sneakers or something.” No fingerprints were taken from the boat or the dinghy, and there was no other evidence of his presence on either craft. No witness stated whether appellant was wet or dry. He was first seen sitting on the boardwalk 150 yards from the burning boat, and such tenuous evidence as might imply that he ever walked on the beach does not support a conclusion that he had any contact with the boat. Upon this record Pacheco would appear to be, arguably, an unlucky bystander. In any event, we conclude that the exclusively circumstantial evidence presented to the jury plainly did not exclude every reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977); Doby v. State, supra.

REVERSED.

MILLS, C. J., and McCORD and WENT-WORTH, JJ., concur.


text:
    Raymond HAMLIN and Appalachian Insurance Company, Appellants, v. Leroy LYNN, Appellee.
    No. SS-266.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1980.

      Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellants.
    Sidney L. Matthew and Stephen Lindsey Gorman, Tallahassee, for appellee.
   PER CURIAM.

Appellants contend, inter alia, that it was error to hold the sheriff and his surety liable for appellee’s damages incurred when deputies made an arrest for a felony without having probable cause to believe appel-lee had committed the felony. The issue is whether such an act involves an abuse of power which arises by virtue of office or a usurpation of power which arises under col- or of office. The latter absolves the sheriff’s office of liability for the acts of the deputies. The former does not. We hold appellants are liable. The deputies abused the power to arrest without a warrant for a felony which “has been committed.” § 901.15(2), Florida Statutes (1975). We think Mendez v. Blackburn, 226 So.2d 340 (Fla.1969) is analogous. There, the petitioners claimed damages for false arrest, malicious prosecution, and assault and battery by two deputies who had undertaken to arrest Mendez for committing a felony in their presence. The court found an inference of an abuse of power precluding summary judgment, to wit: “the power to make an arrest without a warrant for a felony being committed in the officers’ presence.” 226 So.2d at 344.

Malone v. Howell, 140 Fla. 693, 192 So. 224 (1939), is distinguishable. There, the police attempted an arrest without a warrant for a misdemeanor, when no misdemeanor was committed in the presence of the officers. The law did not authorize this type of arrest. Also, Goodrich v. Lawrence, 138 Fla. 287, 189 So. 233 (1939), cited by appellants, is distinguishable. It involved a wrongful act of a deputy which was a completely independent, personal act totally unrelated to any responsibility arising by virtue of office. See Goodrich explained in Mendez, supra, at 343. The other points raised do not merit discussion.

Affirmed.

ERVIN and SHAW, JJ., and MELVIN, WOODROW M. (Retired), Associate Judge, concur.


text:
    Mark Charles FIELER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1074.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 1980.

      George B. Weires, Miami, for appellant. Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The issue before us is whether an agreement between the defendant and the state, wherein the defendant waived his right to a speedy trial in return for the opportunity to enter a pre-trial intervention program, waived the speedy trial rule even though the state unilaterally terminated his participation in the program. On the record before us, we find that the state’s unilateral action did not affect defendant’s waiver of the speedy trial rule. The judgment, which withheld imposition of sentence and placed the defendant on probation with the special condition that he be confined in the Dade County Stockade for six consecutive weekends, is affirmed.

The record reveals that:

On May 24, 1978, the defendant was arrested for possession of cocaine at Miami International Airport.

On June 21, 1978, an information charging the defendant with possession of a felony amount of a controlled substance; to wit: 134.1 grams of cocaine, in violation of Section 893.13, Florida Statutes (1977), was filed.

On September 19, 1978, when his case was called to trial, the state and the defendant reached an oral agreement that the» defendant was to enter a pre-trial intervention program.

On November 3,1978, this agreement was reduced to a written contract.

On November 6, 1978, the state attorney, by memo, advised the clerk of the court to remove the defendant’s case from the calendar until further notice.

On December 27, 1978, the state attorney unilaterally terminated the defendant’s participation in the pre-trial intervention program.

Termination from the program was evidenced by a memo, which recited that the defendant was “ineligible for participation due to the nature of the charge and the quantity of Cocaine involved.” The memo further advised the clerk that the case should be returned to be “prosecuted normally.” The agency responsible for his rehabilitation reported that his attendance and participation in the program were excellent, that he maintained a stable employment record, and was sincerely involved in the rehabilitation process. The defendant understandably objected to being put to trial.

The defendant contends that he did not receive actual notice of termination of his participation in the program until he received his notice to appear for trial on March 12, 1979. A letter, included as part of the record on appeal, indicates that the defendant was, in fact, notified of his termination from the program in December of 1978. However, we are of the view that this point is irrelevant.

On May 12, 1979, the defendant filed a motion for discharge on the ground that the state was barred from proceeding with the prosecution because he had entered into the pre-trial intervention program and that the time for prosecuting him had lapsed, pursuant to the speedy trial rule. The motion was denied by the court. The defendant then entered a plea of nolo contendere specifically reserving his right to appeal this contention.

Appellant’s argument ignores that the pre-trial intervention program, contained in Section 944.025, Florida Statutes (1977), is entirely a creation of the Legislature. State v. Eash, 367 So.2d 661 (Fla.2d DCA), cert. denied, 374 So.2d 101 (Fla. 1979). His argument also ignores that the written contract made with the state expressly embodies the statute as though it was written therein. See, 11 Fla.Jur.2d Contracts § 129 and cases cited therein. Section 944.025(2), Florida Statutes (1977), expressly provides that no individual shall be released into a pre-trial program “unless, after consultation with his attorney or one made available to him if he is indigent, he has voluntarily agreed to such program and has knowingly and intelligently waived his right to a speedy trial for the period of his diversion.”

In State v. Eash, supra, that court, in effect, upheld a trial court’s decision that the state had arbitrarily and capriciously denied a defendant’s admittance to a pretrial intervention program where he sought to waive his speedy trial rights only for the period of his pre-trial diversion. In the present case, the defendant expressly agreed that: “should my case be returned to court for any of the foregoing reasons, that I shall have a right to be tried within 180 days of the date my case is returned to the court docket . . . .”

Since the defendant’s plea of nolo conten-dere, which disposed of the information, was entered well within the 180 days following the return of the case to the court docket as agreed to, we cannot accept his argument that his prosecution is barred by the running of the speedy trial rule.

The pre-trial intervention agreement contemplated the state unilaterally terminating defendant’s participation. The agreement provided:

I also understand that in the event a victim or police officer in my case presents a reasonable basis for objecting to my participation that the State Attorney may return my case for prosecution

We note that Section 944.025(4), Florida Statutes (1977), authorizes the state attorney to resume prosecution “if the public interest so requires.” Subsection (5) of Section 944.025, supra, also contemplates prosecution where “the offender’s participation in the program has been unsatisfactory” or “the offender is in need of further supervision.” In any event, the statute alone authorizes the state attorney to make final determination as to whether the prosecution shall continue.

The pre-trial intervention program, contemplated by Section 944.025, Florida Statutes (1977), presents a practical solution for the rehabilitation of first offenders. The Legislature has balanced the societal interests by vesting the state attorney with wide latitude in vetoing a defendant’s participation in a pre-trial program or in determining whether the defendant has successfully completed such a program in such a manner as to provide significant rehabilitation. The state’s arbitrary and capricious veto and resumption of prosecution remains nonetheless subject to the superintendence of the trial court. State v. Eash, supra.

In the instant case, the record supports the state’s termination of the defendant’s participation because the quantity of the cocaine seized after his arrest at the Miami International Airport represented a greater quantity than is ordinarily found for a cocaine user’s personal use. The quantity of narcotics seized and the defendant’s location when arrested with the drugs gave rise to a legitimate suspicion that he was involved in the sale or distribution thereof. The defendant made no showing to the trial court that the state had arbitrarily and capriciously terminated his participation in the pre-trial intervention program. Upon termination of defendant’s participation in the pre-trial intervention program, the state was required to try him within 180 days from the date of that termination pursuant to Florida Rule of Criminal Procedure 3.191.

We recognize that situations may occur where the state either (1) in bad faith, induces a defendant to enter into an intervention program; or (2) in good faith, induces a defendant to enter into an intervention program, but arbitrarily and capriciously terminates his participation. We specifically do not decide the question of “waiver” of the speedy trial rule under those situations and will wait until they are properly before us to do so.

For the foregoing reasons, the judgment appealed from is hereby affirmed.

      . Fla.R.Crim.P. 3.191.

      . DEFERRED PROSECUTION AGREEMENT AND SPEEDY TRIAL WAIVER
      I understand that I have been tentatively accepted as a participant in the Dade County Pretrial Intervention Program, and that the charges against me will not be prosecuted so long as I am a Program participant in good standing and that my case will not come to trial during that time.
      I understand further that I have a right to have my case brought to trial under Florida Rule of Criminal Procedure 3.191 within one hundred and eighty (180) days if a felony and ninety (90) days, if a misdemeanor.
      In order to participate in the Pretrial Intervention Program, I do hereby freely and voluntarily waive my right to a speedy trial, pursuant to the Florida Rules of Criminal Procedure, Florida Constitution and United States Constitution. I understand that if I violate the rules of the Pretrial Intervention Program, which have been explained to me and which I have agreed to, that my case will be returned to court for prosecution. 1 also understand that in the event a victim or police officer in my case presents a reasonable basis for objecting to my participation that the State Attorney may return my case for prosecution and that my acceptance is thus not final until such time as they have been advised of my proposed acceptance.
      I further understand that, should my case be returned to court for any of the foregoing reasons, that I shall have a right to be tried within 180 days of the date my case is returned to the court docket, if a felony, or within 90 days of the date my case is returned to the court docket, if a misdemeanor. This provision shall supersede all other rights I might otherwise have to a speedy trial.

      . See note 2.


text:
    Robert George WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1581.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 1980.
    Robert George Williams, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Williams appeals from the trial court’s denial of his motion for post conviction relief brought under Florida Rule of Criminal Procedure 3.850. On direct appeal, we affirmed Williams’ conviction, Williams v. State, 354 So.2d 112 (Fla.3d DCA 1978).

His motion for post conviction relief is grounded on asserted errors at trial, all of which were available to be raised on direct appeal. Accordingly, we affirm the trial court’s ruling. State v. Matera, 266 So.2d 661 (Fla.1972); Burau v. State, 353 So.2d 1183 (Fla.3d DCA 1978); Ashley v. State, 350 So.2d 839 (Fla.1st DCA 1977).

Affirmed.