author: DANIEL S. PEARSON, Judge.

text:
    Dr. Philip GLATSTEIN, Lynn Glatstein, Leonard Turkel and Annsheila Turkel, Appellants, v. The CITY OF MIAMI, a Florida Municipal Corporation, and Diplomat World Enterprises, Ltd., a Limited Partnership under the Laws of the State of Florida, Appellees.
    No. 80-1445.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.

      Hall & Hauser and Gail V. Ferrington, Miami, for appellants.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., Aronovitz & Weksler and Bernard B. Weksler, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the trial court’s order denying, for lack of jurisdiction, the appellants’ motion, pursuant to Florida Rule of Civil Procedure 1.540(b), to set aside a final judgment against them.

When appellants’ Rule 1.540(b) motion was filed in and ruled upon by the trial court, their appeal from the final judgment was pending in this court. The pendency of that appeal divested the trial court of jurisdiction to entertain the motion in the absence of our having relinquished jurisdiction to the trial court for that purpose. Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D. C., 374 So.2d 1018 (Fla. 4th DCA 1979) ; Redwing Carriers, Inc. v. Watson, 341 So.2d 1049 (Fla. 4th DCA 1977); Hardwicke Companies, Incorporated v. Freed, 292 So.2d 610 (Fla. 2d DCA 1974); Hutchison v. Wintrode, 286 So.2d 231 (Fla. 2d DCA 1973).

The trial court’s order denying appellants’ Rule 1.540(b) motion is affirmed without prejudice to appellants renewing the motion in the trial court when their appeal from the final judgment is concluded. Our prior order refusing to relinquish jurisdiction to the trial court does not constitute an expression of our views on the merits of appellants’ Rule 1.540(b) motion. Moreover, appellants’ motion to relinquish, although denied by us, tolls the one-year time limitation under Rule 1.540(b)(l-3). See Redwing Carriers, Inc. v. Watson, supra. Compare Seven Up Bottling Company of Miami, Inc. v. George Construction Corp., 153 So.2d 11 (Fla. 3d DCA 1963) (holding that the one-year limitation of Rule 1.540 is not tolled by the filing of the appeal).

Affirmed.

      . In Goodwin, the court noted that the rule of Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977), that relinquishment of jurisdiction to the trial court is not required, applies only when the appeal is no longer pending and the appellate court has issued its mandate. Of course, based on other jurisdictional considerations, a trial court may not entertain a post-mandate motion, made under the guise of Rule 1.540(b), which seeks the very same relief which the appellate court has denied. Joyner v. Ettlinger, 382 So.2d 31 (Fla. 1st DCA 1980).


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Louis Lee SNELL, Appellee.
    No. 79-823/T4-494.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellee.
   COBB, Judge.

The defendant, Louis Lee Snell, was charged under section 790.23, Florida Statutes, with unlawful possession of a firearm by a convicted felon. He moved to produce the firearm, and at the hearing thereon the state represented to the trial court that the weapon had been destroyed due to “some inadvertence on the state’s part.” The state appeals the trial court’s order granting an ore tenus defense motion in ¡¡mine to exclude evidence relative to the firearm.

The trial court observed at the hearing, which had commenced as a hearing on the defense motion to produce, that the prosecutor should develop more information concerning the custody of the firearm and its destruction. No further inquiry in this regard was made. In lieu of the weapon itself, the state represented that it had photographs of the gun taken at the time and place it was last in the possession of the defendant, and represented that it had been test fired by a police officer after seizure. The state argued that the picture of the gun was sufficient to show that it was not an antique, and that the testimony of the police officer who test fired the gun would be subject to cross-examination. The state argued that under the rule set forth in the cases of State v. Sobel, 363 So.2d 324 (Fla. 1978); State v. Herrera, 365 So.2d 399 (Fla.3d DCA 1979); and Budman v. State, 362 So.2d 1022 (Fla.3d DCA 1978), there was no Brady violation absent a showing by the defendant of prejudice resulting from the physical absence of the firearm in question and the use in evidence of the photographs instead.

The argument of the defense at the hearing on the motion in limine (actually a misnomered motion to suppress) was that under State v. Johnson, 280 So.2d 673 (Fla.1973), the absence of tangible physical evidence for examination by the defense, when that evidence is in and of itself essential to proof of the crime, denies the constitutional right of confrontation. In State v. Johnson, that evidence was a bullet required for ballistics testing; in the instant case, the examination of the lost gun conceivably could have shown that it was an antique or that it was incapable of being fired.

The defense distinguished the cases wherein the lost evidence did not require expert testing and were, therefore, subject to some independent and nonexpert method of corroboration by the state’s evidence. The defense also relied on Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975).

The trial court granted the motion to suppress primarily on the basis of the State v. Johnson case. The court found that the loss of the firearm by the state appeared to be unintentional, but that this was not the controlling factor.

It is apparent that the trial court made no evidentiary inquiry into the circumstances of the loss of the gun and did not review the photographic evidence nor the testimony of the testing officer in order to evaluate the potential prejudice to the defendant. See Cumbie v. State, 345 So.2d 1061 (Fla.1977); Richardson v. State, 246 So.2d 771 (Fla.1971). The determination of any discovery sanction to be. imposed in cases where the state loses evidence depends upon the deliberateness of the act and the degree of prejudice to the defendant. In the case of Johnson v. State, 249 So.2d 470 (Fla.3d DCA 1971), the district court reversed the conviction of a defendant because of violation of his discovery rights. Prior to trial, defense counsel filed a discovery motion requesting examination of “any physical evidence relative to the gun with which the state contended defendant was armed at the time of the crime.” However, the fatal bullet had been lost after examination by the police ballistics expert. The defendant moved to suppress testimony of the ballistics expert, arguing his inability to conduct an independent examination of the bullet denied his right of confrontation of witnesses and adequate preparation for trial. The defendant’s motion was denied; the evidence relating to the fatal bullet was admitted into evidence; and the defendant was convicted of second degree murder. On appeal, the district court reversed the conviction, concluding that the testimony of the ballistics expert was erroneously introduced into evidence. In State v. Johnson, the Florida Supreme Court, in a split decision, determined that certiorari would not lie to review the district court opinion because of lack of conflict with a prior Supreme Court decision in Roberts v. State, 164 So.2d 817 (Fla.1964).

In the case of Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), the state’s chemist, although acting in good faith, intentionally destroyed a seized substance alleged to be cocaine after testing it. He failed to preserve any amount which would provide a meaningful test by the defendant. The appellate court held that for the state to unnecessarily destroy critical inculpatory evidence and then be allowed to introduce essentially irrefutable and damaging testimony predicated upon that evidence is vio-lative of due process.

In Adams v. State, 367 So.2d 635 (Fla.2d DCA 1979), the defendant was convicted of possession of dynamite without a valid license. The police had destroyed the sticks of dynamite in question for safety purposes and, therefore, the dynamite was not available for discovery inspection and testing by the defendant. The appellate court, in affirming, stated:

Whenever the state is unable to produce physical evidence which has been in the possession of the state, a serious constitutional issue is presented. It is clear, however, that the state’s failure to produce such evidence does not call for an automatic reversal of a conviction. State v. Sobel, 363 So.2d 324 (Fla.1978). The supreme court in the Sobel case approved a balancing approach suggested by United States v. Bryant, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971) and its progeny. Under that approach, where evidence is lost or destroyed while in the possession of the state, the impact of the omission must be evaluated in the context of the entire record. A court must examine the circumstances of the loss or destruction to determine whether there has been a violation of the duty of the state to preserve evidence, a duty which clearly rises during the investigatory phase of a case. Whether there has been such a violation, and whether it was flagrant or in total disregard of the rights of the accused, is the first line of inquiry.
But the analysis does not end there. In a case where the destruction of the evidence was a flagrant and deliberate act done in bad faith with the intention of prejudicing the defense, that alone would be sufficient to vitiate a conviction. But where the circumstances amount to less than this, a conviction should not be overturned unless it can be concluded from a review of the record that the defendant’s case was in fact prejudiced by the omission of the nonpreserved evidence, (emphasis added).

Adams at 639-640.

In the case of State v. Sobel, 363 So.2d 324 (Fla.1978), the state failed to preserve a tape recording made by police officers during an alleged criminal drug transaction. Prior to trial, the defendant moved to dismiss the charge on the basis that the tape, which the police said was inaudible, should have been preserved and that it was exculpatory. The trial court denied the motion. ’‘The district court reversed, holding that the mere possibility that the tape could have served to corroborate the defendant’s contention that he was not involved was critical. The Florida Supreme Court, quashing the district court reversal, considered the United States Supreme Court case of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and its definition of the term “materiality,” as referred to in the prior Brady decision. As observed in Agurs,

The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.... [I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not. the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

427 U.S. at 109, 112-113, 96 S.Ct. at 2400, 2401.

The Florida Supreme Court approved a balancing test, and noted that it had been adopted in State v. Smith, 342 So.2d 1094 (Fla.2d DCA 1977). It further held that due process requirements are met when a showing is made by the state, which has the burden of proof, that the lost evidence would not have been beneficial to the accused, thus demonstrating a lack of prejudice. Accordingly, the court reinstated the decision of the trial judge, who had found no prejudice, in denying the motion to dismiss.

In the instant case, there was no finding of a bad faith destruction of the evidence by the state. We do not believe that there was a sufficient record reviewed by the trial court, nor was the opportunity afforded to create such a record, to serve as a determinative basis for a factual finding of prejudice or non-prejudice resulting from the omission of the non-preserved evidence. See Sobel and Adams.

Accordingly, the order granting the defendant’s motion in limine-motion to suppress-is quashed, and this cause is remanded for further proceedings consistent with this opinion.

QUASHED and REMANDED.

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

      . Fla.R.App.P. 9.140(c)(1)(B).

      . See State v. Thompson, 390 So.2d 715 (Fla.1980); Holmes v. State, 389 So.2d 214 (Fla. 5th DCA 1980).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . See Fla.R.Crim.P. 3.2200).


author: COWART, Judge.

text:
    VIKING BUILDERS, INC., Appellant, v. Salvador E. FELICES and Shirley G. Felices, his wife, Appellees.
    No. 80-116.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 1980.
    Michael D. Jones, Altamonte Springs, for appellant.

      Jon M. Wilson, Orlando, for appellees.
   COWART, Judge.

This mechanic’s lien action presents the question of whether warranty or repair work can constitute the final furnishing of labor or material commencing the ninety day statutory period within which a lienor must file a claim of lien.

Appellant Viking Builders, Inc., as contractor, agreed to build a residence for ap-pellees, as owners. The owners moved in the residence, and a certificate of occupancy was issued, on October 7, 1977. The air conditioner was in operation on October 11, 1977, and its one year warranty began to run from that date. The punch list was prepared on October 18, 1977, and no item on it related to the air conditioner. The punch list items were completed on or about November 1, 1977. Sometime thereafter the air conditioning subcontractor did substantial warranty work on the air conditioner completing his work on or about December 31, 1977.

Section 713.08(5), Florida Statutes (1979), provides in part:

The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor ....

The contractor’s claim of lien was filed on February 14, 1978, within 90 days of the completion of the air conditioning warranty work on December 31, 1977, but not within 90 days of occupancy and completion of the punch list items.

The contractor primarily relies on the air conditioner work as being the final furnishing of labor under the statute. However, it is undisputed that the air conditioning system had worked for some time and that this item was repair work carried out under warranty. The majority rule is that, after the installation of fixtures or equipment in a building, later services in the nature of correction or repair are not regarded as a part of the installation so as to make the time within which to file under a mechanic’s lien based on the original installation run from the time of performance of such later services. This rule is followed in Florida. In Russell v. Danford, 139 So.2d 743 (Fla. 1st DCA 1962), the court held that work performed “for the purpose of correcting defects which plaintiff was obligated to correct under the express warranty provision of the contract between the parties” could not be considered as setting the completion date of the contract from which the time for filing would commence to run. Therefore this warranty work was not the statutory final furnishing of labor or material.

In this case, at the request of the owners, the contractor also returned to the job site in 1978 to install weep holes and had a subcontractor move a thermostat. These items were also to correct or ratify conditions or to eliminate problems resulting from work under the original contract. In addition, as compared to the whole contract work, they were too remote in time and too unsubstantial and too trivial in quantity to extend the time for filing.

In People’s Bank of Jacksonville v. Virginia Bridge & Iron Co., 94 Fla. 474, 113 So. 680 (1927), the lienor, after the primary delivery of 64,700 pounds of steel, much later delivered 17 pounds and claimed that the later delivery extended the time for filing a claim of lien. The Supreme Court held that the later furnishing of an article trivial in character, after the furnishing of material by the lienor has been substantially completed, is not sufficient to extend the time for filing notice of lien. In Finney v. Barber Block Plant, Inc., 183 So.2d 698 (Fla. 2d DCA 1966), an electrical contractor returned to the premises five months after completion of the work to install a piece of electrical conduit required by the building inspector. The court considered the electrical conduit as an insignificant piece of material and rejected the argument that its installation extended the time for filing a claim of lien.

The contractor observes that an owner considers no item trivial which he believes he is due, but has not received, under a construction contract. The contractor urges that the substantial-trivial test is impractical in the trade and that, between the owner and the general contractor, the test should be that the last item of labor or material for the purpose of the running of the time to file a lien should be the same as the last item that the owner is legally entitled to receive under the construction contract. There is a certain logic in this argument, but the problem inheres in the statute using as a monument from which the time limitation commences to run an event “the final furnishing of the labor or services or materials” which is essentially a question of fact and one that is not abrupt and obvious but is in the nature of the end of a winding down process. Prior to the 1963 revision and amendment of the mechanic’s lien law, much litigation involving priorities resulted from a similar problem caused by keying the attaching date of liens to the first “visible commencement” of building operations. This problem was eliminated by that revision providing for a written recorded notice of commencement (Section 713.13, Fla.Stat.), and for liens to attach and run from such recorded event (Section 713.07(2), Fla.Stat.). Much controversy and litigation could be eliminated or greatly reduced if the legislature would likewise provide for a written recordable notice of completion, carefully conditioning both the owner’s and contractor’s rights under their contract and under the mechanic’s lien law to that event in such manner that each would obtain certain benefits from asserting the same event. It could be provided that until the contractor signed a notice of completion he would not be entitled to final payment or the right to enforce his lien rights and until the owner signed the notice of completion the time limitation for filing liens would not begin to run and, perhaps, the owner would not be entitled to final inspection and occupancy under applicable building codes. Laborer’s and subcontractor’s lien rights could also be finally time limited by reference to a recorded notice of completion executed by both the contractor and owner. However, any proposed solution to this problem is necessarily a legislative function and this court cannot hold as a matter of law that the last ounce of performance to which an owner may be due under every construction contract is also the “final furnishing of the labor or services or materials” which commences the ninety day time limitation for filing a claim of lien under the statute. In this case construction of the weep holes and the moving of the thermostat was remedial work and of such comparable insignificance when compared to the total contract work as to not extend the time for filing the contractor’s claim, notwithstanding that the owner insisted that he was entitled to such work under the construction contract.

We have examined the other points on appeal and find that there is substantial competent evidence to support the trial court’s finding that the contractor was entitled to extra compensation for modifications requested by the owners and that the written notice provision of the original contract did not bar the contractor’s recovery. See Pan American Engineering Co., Inc. v. Poncho’s Construction Co., 387 So.2d 1052 (Fla. 5th DCA 1980), and Vita-Spray of Florida, Inc. v. Gumenick, 144 So.2d 533 (Fla. 3d DCA 1962).

The judgment below is

AFFIRMED.

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

      . A punch list is a final list of small items requiring completion, or finishing, corrective or remedial work under a construction contract.

      . See Annotation: Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanic’s lien, or as extending time for filing such a lien, 143 A.L.R. 1188 (1943); Turner-McCoy, Inc. v. Hardy, 230 Ark. 410, 323 S.W.2d 562 (1959); City of Ashland v. Ben Williamson & Co., 294 Ky. 446, 171 S.W.2d 968 (Ct.App.Ky.1943).


author: MOORE, Judge.

text:
    Robert B. TANNER, Appellant, v. Patricia M. TANNER, Appellee.
    No. 78-2448.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    John L. O’Brien, Boca Raton, for appellant.
    Paula S. Gold, of Baskin & Sears, Boca Raton, for appellee.
   MOORE, Judge.

In a post-judgment dissolution proceeding, the husband appeals in order which, inter alia, found him in contempt of court and awarded his wife additional attorneys fees. We reverse in part.

The award of attorneys fees was made without any expert testimony to substantiate the claimed fee. The only testimony proffered was that of the lawyer claiming the fee. This is clearly inadequate. Mullane v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979); Lamar v. Lamar, 323 So.2d 43 (Fla. 4th DCA 1975). Accordingly, the award of attorneys fees is hereby reversed and this cause is remanded to the trial court for a further hearing thereon.

DOWNEY and ANSTEAD, JJ., concur.


author: HERSEY, Judge.

text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., Appellant, v. Walter J. KELLIN and Dorothy E. M. Kellin, his wife, and W. E. Brenner, Appellees.
    No. 79-1673.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.

      Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appellant.
    Roger L. Brown of Bird, Carpenter & Brown, P. A., Fort Lauderdale, for appel-lees.
   HERSEY, Judge.

This appeal from a Partial Final Judgment entered after Summary Judgment involves the interpretation of language in an insurance policy establishing an exclusion from coverage.

The judgment is labelled “partial” because of a reservation of jurisdiction to award fees and costs at a later time. This does not affect the finality of the judgment for purposes of appeal. Chipola Nurseries, Inc. v. Division of Administration, State Department of Transportation, 335 So.2d 617 (Fla. 1st DCA 1976); 3 Fla.Jur.2d, Appellate Review § 56 (1978).

Appellees obtained from appellant, through its agent, a homeowner’s insurance policy which contained the following exclusion from coverage:

7. [loss] by windstorm or hail to the following property, unless liability therefor is assumed by endorsement hereon: ... (6) loss to screening and supports enclosing or partially enclosing pools, patios or other areas, whether a separate structure or attached to a building; but this exclusion shall not be construed to exclude loss to screening and supports of porches which are a part of dwellings.

By endorsement this provision was deleted and a new provision containing the following language was substituted:

to the following property unless liability therefor is assumed by endorsement hereon: (1) any overhead structure (including its supports and screening), whether attached to a building or not, whose roof-like cover is constructed principally of cloth, metal, fiberglass or plastic, which has been erected to provide protection from the elements for windows, doors, stoops, steps, walkways, patios, carpets and other dining and/or recreational areas; (2) fences; (3) seawall, property line and similar walls; (4) greenhouses, hothouses, slathouses, trellises, pergolas, cabanas and outdoor equipment pertaining to the service of the premises; (5) wharves, docks, piers, boathouses, bulkheads or other structures located over or partially over water and the property therein or thereon.

Appellees suffered storm damage to their swimming pool enclosure which was constructed of screening over a rectangular frame. Appellant refused to compensate for this damage, taking the position that the screened enclosure came within the exclusion from coverage as a structure erected to provide protection from the elements.

The issue of damages having been resolved separately, the question of liability was considered on motion for summary judgment. The trial court entered an order providing:

3. That the policy provisions cited by counsel for the respective parties does not clearly preclude the damage suffered to the screen enclosure surrounding the Plaintiffs’ pool (7 under Additional Exclusions as amended by HO-245 SW).

The inquiry here is limited to whether or not the purpose of a screen enclosure around a swimming pool is to afford protection from the elements thus bringing the structure within the exclusionary language.

There are two principles which guide our deliberations involving the interpretation of exclusions from coverage in an insurance policy. The first is that terms shall be considered and understood in their plain and ordinary sense. The second is that exclusionary language is to be construed most strongly against the insurer where more than one interpretation may be fairly given to the language used. Stuyvesant Insurance Company v. Butler, 314 So.2d 567 (Fla.1975); Ward v. Nationwide Mutual Fire Insurance Company, 364 So.2d 73 (Fla.2d DCA 1978).

The parties agree in the briefs that the term “elements” refers to weather, weather conditions and the forces of nature such as fire, air, earth, water and wind.

The quarrel arises over the term “screen.” Appellant argues, supported by definitions from various sources, that a screen may have as one of its purposes protection from the sun, wind and rain. Appellees contend that the word “screen” in its plain and ordinary sense refers to a plastic or metal barrier against insects.

The American Heritage Dictionary of the English Language, 1166 (1st ed. 1969) gives one definition of a screen as “a window insertion of framed wire or plastic mesh used to keep out insects.”

We find that the plain and ordinary sense of the word screen, with reference to residential buildings and pool enclosures, has as its primary connotation, protection from mosquitoes and other pests rather than protection from “the elements.” We also observe that the original language specifically excluded pool enclosures, where the substituted language does not. Comparing the two provisions a prospective insured could fairly conclude that the purpose of amending the policy by endorsement was to provide coverage for pool enclosures by narrowing the exclusion.

We affirm the judgment and remand for such further proceedings as may be appropriate with regard to costs and attorneys’ fees.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


author: PER CURIAM.

text:
    Gerald Francis MOREE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1717.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, 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.

AFFIRMED. See Pennington v. State, 382 So.2d 907 (Fla. 4th DCA 1979), opinion on rehearing filed January 16, 1980. Contra, see Graham v. State, 366 So.2d 493 (Fla. 2d DCA 1979) and Johnson v. State, 334 So.2d 334 (Fla. 2d DCA 1976).

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


text:
    RUOTAL CORPORATION, N. W., INC., a Netherlands Antilles Corp., authorized to do business in the State of Florida, Appellant, v. Anthony OTTATI, d/b/a The Juice Tree, Appellee.
    No. 79-2515.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    John W. Kozyak of Mahoney, Hadlow & Adams, P. A., Miami, for appellant.
    Christopher C. Cloney, Fort Lauderdale, for appellee.
   HERSEY, Judge.

In an action for wrongful eviction, appel-lee, Ottati, recovered a judgment based upon a jury verdict of $7,000 for damages resulting from loss of his business space in a shopping center. The landlord, Ruotal Corp., seeks reversal of the judgment on the basis that termination of the leasehold estate occurred as the result of mutual agreement or was otherwise warranted.

Ottati entered into possession of a shop in the Old Towne Shopping Center under a written lease with Old Towne Village of Broward, Inc. One Larry McGee executed the lease as agent for the landlord. The shopping center was subsequently acquired by Ruotal, subject to all existing leases. Larry McGee continued to be employed by Ruotal as manager. After some months of operation Ottati was advised in writing that his month to month tenancy was being terminated pursuant to Section 83.03(3) of the Florida Statutes. He was advised that legal action would be taken unless possession was relinquished by April 30, 1977. Ottati removed himself and his tangible personal property from the premises pursuant to the eviction notice. On or about May 1, 1977, the shopping center was closed and locked.

Ottati brought suit for damages for the loss of improvements made to the premises in reliance on the lease, loss of business occasioned by the termination, and the expenses of removing his business from the premises.

Ruotal contends that it was not aware of the written lease but that in any event Ottati voluntarily vacated the premises in response to the notice.

We are called upon to decide whether, under the circumstances of this case and the applicable law, a jury could properly find wrongful eviction.

We begin with the presumption of correctness which the law accords to this judgment and the principle that appellant has the burden to demonstrate error, Trushin v. City of Miami Beach, 328 So.2d 27 (Fla.3d DCA 1976).

One of appellant’s contentions is that the written lease was not recorded and therefore was not binding on appellant, relying on Section 695.01 Florida Statutes (1979). The difficulty with that argument is that the statute applies only where the subsequent purchaser is without notice. Here appellant employed as its manager the very agent who executed this lease on behalf of its predecessor in title. It is axiomatic that knowledge of the agent constitutes knowledge of the principal as long as the agent received such knowledge while acting within the scope of his authority. Bertram Yacht Yard, Inc. v. Florida Wire & Rigging Works, Inc., 177 So.2d 365 (Fla.3d DCA 1965); 2 Fla.Jur.2d, Agency § 94 (1977).

Appellant’s primary argument is that Ottati voluntarily relinquished his tenancy, so that, relying on Kanter v. Safran, 68 So.2d 553 (Fla.1953), obligations under the lease came to an end. The case is distinguishable but even assuming its applicability here, its rationale does not lend support to appellant’s position.

In Kanter, the court discusses two forms of surrender of possession. The first, express surrender, requires an express agreement between the parties and we clearly do not have that here. The second, surrender by operation of law, may be implied from certain circumstances and will depend upon the facts of each case. Ottati received a notice requiring him to vacate by a certain date or face the legal consequences. A jury could reasonably infer that his compliance was therefore coerced and not voluntary.

Appellant’s secondary argument is that Ottati was evicted for failure to pay rent. There was evidence in the record from which the jury could have found that a rental deposit and a security deposit were available to cover rent deficiencies; that the deteriorating condition of the shopping center justified some abatement in rent; or that rental payments had nothing to do with the wrongful eviction, particularly in view of the reason for termination indicated by the written notice. Furthermore, there was no evidence of a demand for rent.

We have not been directed to any circumstance nor has any case been called to our attention that would require that the jury’s finding on this point be regarded as suspect.

We therefore affirm the verdict and judgment.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    William MEYER, Sr., as Personal Representative of the Estate of William Meyer, Jr., Deceased, Appellant, v. Edwin SCHWARTZ, Appellee.
    No. 80-39.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Miles B. Mank II, Vero Beach, for appellant.
    J. Stephen Tierney III, of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellee.
   DOWNEY, Judge.

William A. Meyer, Jr., died in an airplane accident January 15, 1979, leaving as the sole asset of his estate a home located in Fort Pierce, Florida. Shortly prior to his death Meyer delivered a letter to appellee, Edwin Schwartz, wherein he promised to give appellee a second mortgage on specific real property to secure a loan of $20,000. However, Meyer died without executing the mortgage. Thus, appellee filed a timely Notice of Claim in the Meyer Estate in which appellee claimed an equitable lien on this real property. The appellant, as Personal Representative, filed his objection thereto and this litigation ensued.

Appellant states the sole issue involved is “whether or not an equitable lien can be impressed upon a decedent’s real property after his death, where the Personal Representative has no notice or knowledge of the indebtedness and the promise to execute a second mortgage.” It is appellant’s contention that the trial court erred in impressing an equitable lien on the realty in question because he is entitled, as Personal Representative, to possession of said real property during the administration of the estate. Appellant does not contend that appellee would not be entitled to an equitable lien if the Personal Representative had notice thereof at the time of Meyer’s death.

An equitable lien may arise from a written contract showing an intention to charge property with a particular debt. Town of Naples v. Naples Improvement Corp., 147 Fla. 94, 2 So.2d 383 (Fla.1941); Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (Fla.1925); Blumin v. Ellis, 186 So.2d 286 (Fla. 2d DCA 1966), cert. denied 189 So.2d 634 (Fla.1966). It is undisputed here that appellee has a written contract in which Meyer agreed to encumber specific property with a second mortgage to secure the loan. Thus, this record justified the finding that appellee was entitled to an equitable lien on the property in question. The attempted enforcement of that lien during the administration of the estate may well give rise to some of the problems envisioned by appellant such as the right of bona fide purchasers and prior lienholders vis-a-vis appellee. However, the possibility of the existence of such prior claims does not preclude the establishment now of appellee’s equitable lien claim. The priority of that lien was not adjudicated below nor have we considered that issue.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge.

text:
    In re ESTATE of Robert J. GRANGER, Deceased.
    No. 80-490.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    F. Shields McManus and Karen O’Brien Steger, of McManus, Stewart & Ferraro, P.A., Stuart, for appellant.
    Howard R. Hirsch, Miami, for appellees.
   BERANEK, Judge.

This is an appeal by Victory Construction, Inc., a creditor of the estate of Robert J. Granger, from an order entered in the probate proceeding below. The order in question denied Victory’s petition to set aside a previous order allowing attorney’s fees for services to the estate. The order also denied Victory’s petition for payment of a claim against the estate. We affirm.

In 1974, Attorney Howard Hirsch was hired by Robert Granger to sue U. S. Home Corporation. Suit was filed in 1974 and Robert Granger died in 1975. His widow, the executrix of his estate, continued Hirsch’s employment. The suit eventually terminated in favor of the plaintiff. The administratrix of the estate had been substituted as plaintiff in her representative capacity. The case involved complex litigation, two appeals to the Fourth District Court of Appeal, a proceeding before the Florida Supreme Court, and eventual collection of the sum of $103,634.63 on March 12, 1979. The litigation spanned almost six years.

The parties agree that counsel was entitled to be compensated for the reasonable value of his services to the estate. The issue on appeal is the amount of fees awarded. The trial court awarded a fee of 50 per cent of the recovery, or approximately $51,000. It is undisputed that the estate of the decedent would have been totally without assets but for the lawsuit against U. S. Home Corporation. The trial court determined this was a reasonable fee based upon evidence of 500 hours of work by Attorney Hirsch, a complex lawsuit involving novel questions, a total absence of assets in the estate and the numerous other factors contained in the canons governing reasonable fees. The expert testimony from attorneys on the subject was that the fee could range from $25,000 to “$50,000 as a minimum.” The attorney who testified to the $50,000 figure was of the opinion that this fee was reasonable based on either quantum meruit or on a contingency basis. We conclude that appellant has failed to demonstrate an abuse of discretion or error by the trial court in the determination of this attorney’s fee. In re Estate of McCune, 223 So.2d 787 (Fla. 4th DCA 1969), and In re Estate of DuVal, 174 So.2d 580 (Fla.2d DCA 1965).

Appellant also asserts error in the trial court’s determination as to the priorities of claims pursuant to Section 733.707, Florida Statutes (1979). Specifically, the trial court found that the claim of Victory Construction against the estate was a class 7 priority, rather than a class 1 priority under the statute. We find no error in this regard and affirm.

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.


text:
    Sandra Jo HERD, Appellant, v. William Edward HERD, Appellee.
    No. 80-1549.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1980.
    Donald A. Wich, Jr., of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for appellant.
    Louis J. Weinstein of Reasbeck & Fegers, P. A., Hollywood, for appellee.
   PER CURIAM.

This matter is before us for review of an interlocutory order as to the parties’ temporary rights of custody and visitation with their three year old child. Although we have serious reservations about the specific arrangements approved by the trial court, we do not believe appellant has demonstrated an abuse of discretion, especially in view of the fact that such arrangements are to be in effect only until a final judgment of dissolution is entered.

The record is silent as to why this matter has not been finally disposed of and we would hope that it can be at the earliest opportunity. At that time we are hopeful a solution satisfactory to all will be found, predicated upon the best interests of the child. If not, we will then be in a position to entertain a plenary appeal with more complete information before us.

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


author: SCHEB, Chief Judge.

text:
    George JONES, d/b/a George Jones Masonry & Asphalt, Appellant, v. Bill WRIGHT, a/k/a William J. Wright, III, and Leonard Stein, Appellees.
    No. 80-555.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    Larry G. Rightmyer, St. Petersburg, for appellant.
    Thomas K. Riden of Riden, Crawford & Janssen, St. Petersburg, for appellee Wright.
    Adrian S. Bacon of Bacon & Bacon, St. Petersburg, for appellee Stein.
   SCHEB, Chief Judge.

This appeal involves a contractor’s foreclosure of a claim of lien against a lessor’s property for improvements he constructed pursuant to an agreement with a long-term lessee of the property.

Bill Wright contracted with George Jones to construct improvements on real property which Leonard Stein owned and leased to Wright under terms of a fifty-year agreement. Subsequently, Jones filed a claim of lien alleging that Wright had not fully paid him under the contract. In June 1979 Jones filed this suit. In Count I of the complaint, Jones sought to foreclose his claim of lien against both Wright and Stein. In Count II Jones sought a money judgment against Wright alleging breach of contract.

The trial court granted Wright’s motion to dismiss on Count I and Stein’s motion for summary judgment on Count I. It denied Wright’s motion to dismiss Count II. This appeal by Jones ensued.

The order granting Wright’s motion to dismiss Count I is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130. In addition, since Jones still has a cause of action against Wright under Count II, the order granting the motion to dismiss Count I is not a final appealable order. Although Jones seeks to obtain different forms of relief in the two counts, he is seeking the same end result, namely, payment under the contract. In McClain Construction Corp. v. Roberts, 351 So.2d 399 (Fla.2d DCA 1977), we held that an order dismissing a count of a complaint seeking to foreclose a mechanic’s lien was not appealable while other counts involving the same set of facts and seeking an equitable lien and a recovery for breach of oral contract were pending. As the same basic facts are pertinent to each count in the present case, McClain controls, and, consequently, we must dismiss Jones’ appeal from the order dismissing Count I as to Wright.

We think, however, that the trial court’s grant of summary judgment to Stein was proper. The court had before it the lease agreement between Stein, as lessor, and Wright, as lessee, which provided in Paragraph 16 that Wright could construct any improvements on the leasehold including a farmer’s market building or buildings and related areas. It also provided that Wright could not do anything which would permit a lien or claim of lien on the leasehold. The lease was recorded in the county where Jones constructed the improvements prior to his furnishing any labor or materials.

Section 713.10, Florida Statutes (1979), provides:

In the absence of fraud on the part of the lessor, the interest of the lessor shall not be subject to liens for improvements made by the lessee when the lease is recorded in the clerk’s office and the terms of the lease expressly prohibit such liability.

Jones recognizes section 713.10 but argues that two other lease provisions negate its applicability here. Paragraph 5 provided that the lease was not binding on Wright unless the proper regulatory authority authorized him to build a farmer’s market. If approval was not given, either party could cancel the lease. Paragraph 11 required Wright to pay all taxes and assessments on the leasehold and on any improvements he constructed. Jones, citing Robb v. Lott Paving Co., 289 So.2d 776 (Fla. 4th DCA 1974), and Jenkins v. Graham, 237 So.2d 330 (Fla. 4th DCA 1970), argues that the language of Paragraphs 5 and 11 made the construction of improvements the “pith of the lease” and thereby subjected the leased property to a claim of lien. We do not agree.

Paragraph 16 is clear in prohibiting the imposition of a lien against Stein’s property. The provisions concerning a farmer’s market simply gave Wright the option of constructing improvements on the leasehold. They did not make that construction the “pith of the lease” under Robb and Jenkins. Consequently, since there was no suggestion of fraud and the lease was recorded, section 713.10 controls. Therefore, Stein’s interest in the property was not subject to lien.

Accordingly, we dismiss Jones’ appeal from the order granting Wright’s motion to dismiss Count I; we affirm the summary judgment in favor of Stein on Count I.

GRIMES and CAMPBELL, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Charles O. KOVALESKI, Appellant, v. TALLAHASSEE TITLE COMPANY and St. Paul Fire and Marine Ins. Co., Appellees.
    No. SS-239.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.

      Charles Friend, Tallahassee, for appellant.
    Peter Guarisco, and Paul F. Hartsfield,. Jr., of Watkins, Hill & Marts, Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Acquiring land through tax deeds is risky business, not for the faint-hearted. To protect landowners from the drastic consequences of being too long delinquent in paying their property taxes, the legislature has fashioned, and it tinkers with frequently enough to unnerve the experts, a complex and sometimes inscrutable statutory process which must be followed to the letter. Unless all the i’s are dotted and all the t’s are crossed, the tax deed which emerges from the process is no good. Never mind that the clerk mailed notice of the tax deed application to the landowner’s address as currently and reliably stated on the tax rolls; the statute says the clerk should have mailed it to the owner’s address as shown on his old deed, where he hasn’t lived for years, so the tax deed recipe is ruined. Courts have said things like that for years, this court most recently in Weiss v. Prudential Enterprises, Inc., 387 So.2d 457 (Fla. 1st DCA 1980).

The law’s steady insistence on strict compliance with statutory requirements for tax deeds takes a different twist in this case. Appellant Kovaleski, fearful that the tax deed he bid and paid $950 for wasn’t any good, and that both the land and his new improvements costing $5,800 would surely be lost to the former record titleholders who weren’t notified of the tax sale, paid them another $6,000 to acquire their interest. Then he sued the appellee abstractor for negligently omitting those owners from the report of title search made for the tax collector. The circuit court said Kovaleski loses because the strict requirements for a tax deed were fully complied with, Kovale-ski’s tax deed was good, the former owners were shut out, Kovaleski’s payment to them was voluntary and unnecessary, and the abstractor’s negligence if any was not a legal cause of damage to Kovaleski. We agree.

On Kovaleski’s prior appeal from an order dismissing with prejudice his third amended complaint, we held he had sufficiently stated a cause of action against Tallahassee Title for alleged negligence in omitting the beneficial interest of Shaw and Chestnut from a title abstract prepared for the tax collector’s use in certifying to the circuit court clerk the names of titleholders and lienholders to be notified of the tax deed application. Kovaleski v. Tallahassee Title Co., 363 So.2d 1156 (Fla. 1st DCA 1978). The issue on that appeal was whether Kovaleski, who was not privy to the tax collector’s transaction with Tallahassee Title, adequately pleaded that he justifiably relied on the negligently-prepared abstract in buying the tax deed and improving the property, only then to discover the interest of Shaw and Chestnut, to whom Kovaleski paid a substantial sum to clear his title. The court held, 363 So.2d at 1161:

The abstracter certainly knew that its preparation of the title search was not for the benefit only of the tax collector with whom it contracted or of any tax certificate holders, but either knew or should have known that the law permitted the property upon which the title search was prepared to be sold for cash to the highest bidder at public auction. Section 197.266. It was therefore foreseeable that the person who successfully bid the property would rely upon the abstract in making his bid, and that any negligent omission of a preexisting interest from the abstract could cause injury to such person. We consider plaintiff’s complaint, as finally amended, stated a cause of action.

On remand the circuit court held by summary judgment that Tallahassee Title’s omission of the Shaw and Chestnut interest from the report of title search (which was revealed by the proofs not to be, strictly speaking, an “abstract” of title) was not a legal cause of Kovaleski’s loss to Shaw and Chestnut. We agree with the circuit court that Kovaleski’s title by tax deed was sound against any adverse claim by Shaw and Chestnut arising from the omission of their names, address, and legal interest from the search report and the tax collector’s certification, and their consequent omission from the clerk’s notice of sale. It follows that Kovaleski’s alleged loss, consisting of his payment to Shaw and Chestnut for the release of their claimed interest, was damage self-inflicted without legal injury proximately caused by Tallahassee Title’s asserted negligence.

The Leon County tax rolls for 1975 and at least two earlier years assessed the subject land to E. L. and J. S. Simpson, who did not pay the taxes for 1973, 1974, and 1975. In May 1974 a Dr. Hunt purchased a tax certificate issued for nonpayment of the 1973 and 1974 taxes, and in the Spring of 1976 Hunt paid the delinquent 1975 taxes and applied for a tax deed. Then, in order to certify to the circuit court clerk the names and addresses of the persons whom the clerk was required to notify of the tax deed application, Sections 197.241(2), 197.256(1), Florida Statutes (1977), the tax collector engaged Tallahassee Title, for $25, to provide a title search and report.

In conducting its search for information required by the tax collector, Tallahassee Title undertook what its manager termed a “title search,” which for present purposes may be described as a search of the recent Official Records and other selected public records for the recent history and present status of the record title. [We need not linger over Tallahassee Title’s differentiation of its “title search” from its more thorough and fully documented “abstract” search, nor need we distinguish Tallahassee Title’s report of title search from its more formal certificate of title insurance, or from a lawyer’s opinion of title. Whatever else Tallahassee Title was requested to or intended to discover and report, Tallahassee Title’s manager conceded that the Shaw and Chestnut record title, described below, should have been discovered and reported.] After completing its search, Tallahassee Title reported in a letter to the tax collector that the last significant instrument of record affecting the property was an “escrow agreement” between E. L. and J. S. Simpson and the former titleholder, Rowan, who was reported deceased although-and this statement is inaccuráte-“no probate [is] recorded in Leon County.” In the report’s conclusion only the Simpsons, of “Williams Landing Road, Tallahassee,” and tax certificate holder Hunt were listed as “appearing] to have an interest in the captioned property.”

The tax collector engaged Tallahassee Title to conduct a title search because the collector’s duties were as specified in Section 197.241(2), Florida Statutes (1977):

Any certificate holder ... making application for a tax deed shall pay the codector all amounts required for redemption or purchase of all other outstanding tax certificates, plus interest, any omitted taxes, plus interest, and delinquent taxes, plus interest, covering the land.... The tax collector shall then deliver to the clerk of the circuit court a statement certifying the names and addresses of all persons the clerk is required by law to notify prior to the sale of the property

The “persons the clerk is required by law to notify” are as described in Section 197.-256(1), Florida Statutes (1977) [bracketed numbers are added here to differentiate more clearly the specified classes of persons]:

In addition to the publication of the notice provided for by s. 197.246, the clerk of the circuit court shall notify, by certified mail with return receipt requested, [1 ] the legal titleholder and lienholders of record of the property and each lienholder as listed in the collector’s certification who claims a lien thereon at the date of the filing of the application for obtaining tax deed, if the address of the owner appears on the record of the conveyance of the lands to the owner, [2] or, if the address of the owner does not appear thereon, then the notice shall be mailed, by certified mail with return receipt requested, to the owner to whom the property was assessed on the tax roll for the year in which the property was last assessed, [3] or, if the name and address of such person does not appear thereon, then the notice shall be mailed, by certified mail with return receipt requested, to the person last paying taxes upon the lands. If, upon a diligent search, no address can be found, then no notice shall be required. ...

Thus Section 197.256(1) requires that notice of a tax deed application be mailed by the clerk to one or another class of persons, arranged in a descending order of preference. The first preferred class consists of “the legal titleholder and lienholders of record of the property and each lienholder as listed in the collector’s certification who claims a lien thereon at the date of the filing of the application . . . . ” But by its explicit terms the statute extends personal notice to that class only “if the address of the owner appears on the record of the conveyance of the lands to the owner”; and the statute dictates that notice be given instead to the second-level class “if the address of the owner does not appear thereon ....” Thus whether Shaw and Chestnut were entitled as “the legal titleholder[s] ... of record” to certified mail notice from the clerk, Section 197.256(1), and hence were persons whose “names and addresses” were required to be included in the tax collector’s certification to the clerk, Section 197.241(2), depends on whether “the address of the owner[s] [Shaw and Chestnut] appears on the record of the conveyance of the lands to the owner.” Section 197.256(1).

Shaw and Chestnut were in fact the legal titleholders of record at all pertinent times: when Hunt applied for a tax deed in the Spring of 1976, when Tallahassee Title conducted its title search, when the tax collector certified names and addresses of interested persons to the clerk, and when the clerk gave the statutory notice by certified mail. Shaw and Chestnut were the legal titleholders of record at least from January 16, 1976, forward, by virtue of a certificate of title then issued to them, and promptly recorded in the Official Records of the county, after they successfully bid for the property at the clerk’s foreclosure sale on a circuit court judgment establishing as a lien their “escrow agreement and contract for deed” which was assigned to them (apparently by the Simpsons) in December 1973.

It being settled, then, that Shaw and Chestnut were “the legal titleholder[s] ... of record” at all pertinent times, were they persons to whom the clerk was obliged to give notice by certified mail before conducting a sale and issuing a tax deed? They were not. Neither their certificate of title issued January 16, 1976 nor their antecedent certificate of sale bore the address of Shaw and Chestnut. Because “the address of the owner does not appear” on “the record of the conveyance of the lands to the owner,” the clerk was not directed by Section 197.256(1) to mail Shaw and Chestnut, as legal titleholders, notice of the tax deed application. For the same reason the tax collector was not directed by Section 197.-241(2) to include Shaw and Chestnut, as legal titleholders, in certifying to the clerk “the names and addresses of all persons the clerk is required by law to notify Section 197.241(2).

Nor were Shaw and Chestnut second-level persons entitled to notice as “the owners] to whom the property was assessed on the tax roll for the year in which the property was last assessed”; for again “the name and address of such person[s] [do] not appear thereon,” i. e., on the “tax roll for the year in which the property was last assessed.” Section 197.256(1). Neither the names nor address of Shaw and Chestnut were shown on the 1975 tax roll; and though “Shaw, Ruth J Etal” was shown as “Owner” on the 1976 tax roll computer printout which was available when the tax collector prepared his Section 197.241(2) certification on May 7, 1976, and Shaw’s name was shown in that fashion in the collector’s certification, Shaw’s address was not shown by the 1976 printout, and it therefore was not shown by the collector’s certification.

Finally, Shaw and Chestnut were not “the person[s] last paying taxes upon the lands,” so they did not qualify for certified mail notice in accordance with the statute’s third-level preference.

The persons entitled to certified mail notice in accordance with Section 197.256(1) were E. L. and J. S. Simpson, the second-level persons who were “the owner[s] to whom the property was assessed on the tax roll for the year [1975] in which the property was last assessed,” and whose Tallahassee mailing address was also shown. Thus, by including the names and address of the Simpsons in his certification, the tax collector properly informed the clerk of the names and addresses of the persons who were entitled to receive certified mail notice of the tax deed application. By mailing that notice to the Simpsons, the clerk, too, fulfilled his statutory duties.

Thus it appears that Kovaleski’s title acquired by tax deed is not vulnerable to attack by record titleholders Shaw and Chestnut for any inaccuracy or inadequacy in the clerk’s notice mailed to interested persons, or in the collector’s certification of the names and addresses of those persons, or in Tallahassee Title’s title search report concerning those persons and their interests. Strict compliance with the applicable statutes is what is necessary to make a good title by tax deed, Jernigan v. Harrison, 136 Fla. 320, 186 So. 511 (1939), Edgewood Boys’ Ranch v. Ernst, 376 So.2d 30 (Fla. 3d DCA 1979), and strict compliance is what was afforded here. On this summary judgment record there is no genuine issue as to any material fact, and on the undisputed facts Kovaleski’s title was good against the world, including Shaw and Chestnut. Neither the tax collector nor the clerk was obliged to search for Shaw and Chestnut’s address in the court file pertaining to their foreclosure proceedings, or in the record of Rowan’s probate proceedings, or elsewhere. And had the collector or clerk found their address anywhere but on the record of their conveyance, finding it would not have authorized the clerk to omit notice to the Simpsons, the second-level persons entitled to notice; and giving additional notice to Shaw and Chestnut would have been a thoughtful gesture, but of no significance under Section 197.256(1). Mid-State Homes, Inc. v. Reed, supra n. 2; Stubbs v. Cummings, 336 So.2d 412 (Fla. 1st DCA 1976); Weiss v. Prudential Enterprises, Inc., supra n. 1.

Since Kovaleski’s tax deed was good as against Shaw and Chestnut, and it would not have been rendered stronger had personal notice been given to them, it is apparent that Kovaleski’s complaint against Tallahassee Title is not based on any deficiency in the title search which was significant to the statutory purpose of the search, but is based instead on a deficiency-Tallahassee Title’s failure to note and report Shaw and Chestnut’s record title-which Kovaleski erroneously assumed invalidated his deed. The flaw in Kovaleski's claim is that his own erroneous assumptions about the efficacy of his tax deed, and his resulting payment for the release of interests already superseded, were not in legal terms a proximate result of the negligence complained of.

In sustaining the circuit court’s summary judgment we reaffirm this court’s prior Kovaleski decision that privity of contract between the tax deed purchaser and the abstractor is unnecessary to liability in a case such as this, because persons bidding for a tax deed may be held by a jury to have reasonably and foreseeably relied on the accuracy of the abstract or title search report prepared for the tax collector. We do not derogate that decision in the slightest. We simply hold that the record evidence disproves Kovaleski’s allegation, sustained as sufficient in law but not as a matter of fact on the prior appearance here of this case, that Kovaleski

.. . was damaged by the failure of the defendant abstractor to set forth in the abstract the fact of record of a preexisting interest in the same property in favor of Ruth Jeanette Shaw and Mary Louise Chestnut, which was of record in the Public Records of Leon County.

We recognize, of course, that the omission of the Shaw and Chestnut interests from the title search report was in a sense the cause of Kovaleski’s eventual payment to them for a quiet title. But no tax deed recipient is guaranteed a quiet title by virtue of his deed, and those like Kovaleski who deal in tax deeds know that contest and litigation are occupational hazards. Therefore, while we continue to recognize that an abstractor may be liable without privity to the tax deed purchaser who justifiably relies on a negligently-prepared abstract, when the tax deed is for that reason faulty and the purchaser has sustained expenses which are not refundable under Section 197.166, we decline to extend our prior Kovaleski decision to the point of holding that the purchaser of a valid tax deed may recover from the negligent abstractor payments he voluntarily made to a foreclosed owner on the erroneous assumption that the omission of that owner’s name and address from the tax search report vitiated the tax deed.

AFFIRMED.

BOOTH, J., and WOODIE A. LILES, (Retired), Associate Judge, concur.

      . In Weiss this court said exactly that, 387 So.2d at 458-59:
      The statute makes no provision for the clerk to depart from its instructions even when to do so would result in sending the notice to a correct address rather than an obsolete one. The Supreme Court and the various district courts of appeal have repeatedly held that strict adherence to the statutory notice requirements in relation to issuance of a tax deed is essential to the validity of the deed. (Numerous citations omitted.)

      . Because at all times pertinent here Shaw and Chestnut had already received and recorded a certificate of title, we reject Kovaleski’s characterization of them as foreclosure judgment lien-holders, which is Kovaleski’s predicate for urging that Shaw and Chestnut, as lienholders of record, were entitled to certified mail notice whether or not the owner’s address appeared on his recorded conveyance. Neither do we agree that lienholders are entitled to notice even if the owner is not because his address does not appear in his conveyance. We note, however, the seeming perversity of sending notice to none in the first-level class “if the address of the owner does not appear thereon,” i. e., “on the record of the conveyance of the lands to the owner.” We do not know why the statute omits notice to lienholders of record simply because the legal titleholder’s address does not appear on his deed. No other interpretation seems possible, however, for if we were to read the “if the address of the owner” phrase as modifying only the last antecedent phrase, “and each lienholder as listed .. .,” we should render the modifier even more pointless than it is, by detaching it from the “legal titleholder” phrase to which it clearly belongs. Besides not improving the statute, that interpretation would conflict with Mid-State Homes, Inc. v. Reed, 332 So.2d 43 (Fla. 1st DCA 1976). This statutory puzzle did not result from fragmented amendments over the years, as is so often true of convoluted statutes; the 1972 session law originating this particular tax deed scheme similarly provided that the clerk
      . . . shall mail a copy of the notice to the legal titleholder of record of the property and to each lienholder of record, if any, who claims a lien thereon at the date of the filing of the application for obtaining tax deed, if the address of the owner appears on the record of the conveyance of the lands to the owner, or if the address of the owner does not appear thereon, then ....
      Ch. 72-268, Sec. 1; Section 197.256, Florida Statutes (1972 Supp.)

      . We do not intimate that the 1976 computer printout bearing the name of “Shaw, Ruth J Etal” as “Owner” was the “tax roll” to which the collector and clerk were obliged to look to identify second-level notice recipients, Section 197.256(1). See section 193.114 concerning the preparation and approval of the “assessment roll.” The appearance of Shaw’s name as owner (her address did not appear) in the collector’s certification, which was in the clerk’s file examined by Kovaleski before the tax deed sale, no doubt should have alerted Kovaleski to outstanding interests other than that of the Simpsons; but on this summary judgment record we are not concerned with evidence of Kovaleski’s contributory negligence.


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. AMERICAN CAN COMPANY and Employer’s Insurance of Wausau, Appellees.
    No. TT-113.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
    Claire D. Dryfuss, Tallahassee, for appellant.
    Kathleen Hudson, St. Petersburg, for ap-pellees.
   PER CURIAM.

This is an appeal from a worker's compensation order finding that the employer/carrier is entitled to reimbursement from the Special Disability Trust Fund. We affirm.

We have examined the record and find competent, substantial evidence that the employee’s cervical problem with the resulting left arm problems combined with his subsequent injury to produce an overall disability greater than that which existed as a result of the subsequent injury alone. Further, we also find competent, substantial evidence that the employer, American Can Company, had knowledge of the employee’s pre-existing condition. The employee underwent a cervical laminectomy in 1965. The fact that the employee underwent this surgery and lost time from work is reflected in the industrial disease records and group medical insurance records for American Can Company. The industrial disease records also reflect that the American Can Company required the employee to bring a release from his physician before he was allowed to return to work. In that the employer is a large corporation and the above documents are part of its business records, we conclude, as did the Deputy Commissioner, that the employer knew that the employee’s pre-existing condition was permanent and was, or was likely to be, a hindrance or obstacle to his employment within the dictates of Section 440.-49(2)(f)(l), Florida Statutes.

AFFIRMED.

WENTWORTH and JOANOS, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


author: THOMPSON, Judge.

text:
    FLORIDA STATE HOSPITAL and Division of Risk Management, Appellants, v. Emaline POTTER, Appellee.
    No. TT-157.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
    Rehearing Denied Jan. 12, 1981.
    Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for appellants.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for appellee.
   THOMPSON, Judge.

The employer challenges a worker’s compensation Order, contending that the Deputy Commissioner (“the Deputy”) erred in determining that the claimant’s illness was an occupational disease within the meaning of § 440.151, Florida Statutes. We agree and reverse.

The claimant was employed as a psychiatric aide at Florida State Hospital for 14 years. In the fall of 1977, she underwent a tuberculosis skin test. Although this test was positive, she did not seek further diagnosis or x-ray examination. Later she was unable to work from March 2, 1978 until April 10, 1978, and the cause of her disability was diagnosed as tuberculosis.

The claimant filed a claim for benefits, seeking compensation and payment of medical bills and other expenses incurred as a result of tuberculosis. After a hearing, the Deputy entered his Order, finding that the claimant’s tuberculosis was due to causes and conditions characteristic of and peculiar to the occupation in which the claimant was engaged. The Deputy also found that the tuberculosis was not an ordinary disease to which the general public is exposed, and that the employment showed a peculiar hazard of such disease in excess of that posed by other forms of employment. He determined that the claimant had an occupational disease and ordered payment of the benefits claimed.

Subsection 440.151(2), Fla.Stat. (1977), provides that:

Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.

The Deputy has the duty and responsibility to ascertain facts through hearings, make his findings and enter an Order thereon. Upon review, his Order and findings should be affirmed unless there is no competent substantial evidence to support them. Speirs v. Donahue, 255 So.2d 519 (Fla.1971). Although the Deputy made specific findings that all the criteria required by law to constitute an occupational disease were met in this case, those findings are simply not supported by any competent substantial evidence. There was no evidence that the tuberculosis was due to causes and conditions which were characteristic of and peculiar to the claimant’s employment at the mental hospital. Tuberculosis is an ordinary disease of life to which the general public is exposed and there was no evidence that it was not such a disease. There was no evidence that the incidence of tuberculosis was substantially greater among employees at the hospital than for the general public. On the contrary, there is competent substantial evidence from the claimant that, to her knowledge, no other employees at the hospital had contracted tuberculosis with the possible exception of one person who had had active tuberculosis about 20 years before. She also testified that 12 other employees had contact with the same patients she did and none contracted tuberculosis. Under the provisions of Subsection 440.151(l)(e), Fla.Stat. (1977), the presumption that the claim comes within the provisions of the Worker’s Compensation Act does not apply.

This is not a case of asbestosis in a person exposed to asbestos fibers on his job; black lung in a coal miner; dermatitis suffered by one exposed to a skin irritant in the performance of his job; nor any other of the diseases that have been held compensa-ble under the occupational disease provisions of the worker’s compensation law. Tuberculosis is an ordinary communicable infectious disease to which the general public is exposed and there is absolutely no evidence to support a finding that it is an occupational disease based on the record in this ease.

The appellee cited no case in which tuberculosis or any of the other ordinary diseases to which the general public is exposed has been held to be an occupational disease, and our research has failed to reveal any.

The order of the Deputy is reversed and the cause is remanded with directions to enter an Order dismissing the claim.

ROBERT SMITH, J., and WOODIE A. LILES (Ret.), Associate Judge, Concur.


author: RYDER, Judge.

text:
    Marvin LEONARD a/k/a William Oxendine, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-968, 80-969.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Marvin Leonard appeals from the revocation of his probation after which he was sentenced to two four-year terms of imprisonment to run concurrently. We address the question whether there has been an adequate revocation hearing. After reviewing this somewhat confusing record, we believe Leonard was not given an adequate hearing.

Appellant was charged with burglary of a dwelling and, after a plea of nolo conten-dere, he was placed on probation. During his probationary period, an affidavit was filed charging him with the violation of condition (1) which required the filing of monthly reports; violation of condition (2) relating to the paying of supervisory fees; and violation of condition (8) involving a failure to report to the probation officer’s office.

During Leonard’s first probationary period, he was also charged (under an assumed name of William Oxendine) with burglary of a conveyance. Because of the use of a different name, this fact was not ascertained until later. As “Oxendine”, Leonard had entered a nolo plea to that charge and also received a period of probation. Thereafter, another affidavit was filed citing a violation of condition (8) which specified that he was to promptly and truthfully answer all inquiries directed to him by the court or the probation officer. On the same day, a short hearing was held to take up the allegations of probation violation. After reading part of the warrant, which cited the three violations of probation for the offense of burglary of a dwelling, Leonard’s attorney made the following statement:

Your Honor, he would also . . . your hon- or, as to violating condition (8) on that warrant which states he would promptly and truthfully answer all inquiries, he would admit to having violated that as he did tell a lie to his probation officer.

Appellant’s counsel then stated to the court that she had explained to appellant that the court intended to impose a four — year sentence. Then she argues that there were mitigating circumstances. Immediately after appellant was adjudicated guilty, Leonard indicated to his counsel that he wished to hire another attorney. From this record, we cannot discern where, if ever, Leonard actually pleaded guilty, not guilty or nolo contendere to any charges.

While in a probation revocation hearing, the requirements of Boykin v. Alabama, need not be fulfilled to the letter, we do require that the probationer be given a reasonable opportunity to present his position, which was not done here.

Under these circumstances, we believe the trial judge should have afforded the probationer a fuller hearing, including an inquiry as to whether he was admitting guilt to one, all, or none of the violations. Also, in the instant case, little, if any, evidence to substantiate the violations was presented. Therefore, we REVERSE, set aside the judgments of guilt and sentence and REMAND for another hearing on all alleged probation violations.

REVERSED and REMANDED.

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

      . 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Washington v. State, 284 So.2d 236, 237 (Fla. 2d DCA 1973); McNeely v. State, 186 So.2d 520 (Fla. 2d DCA 1966).


text:
    BEATRICE FOODS COMPANY d/b/a: Meadow Gold Ice Cream and Gallagher Bassett Insurance Service, Appellants/ Cross-Appellees, v. James David WATSON, Appellee/Cross-Appellant.
    Nos. SS-118 and TT-92.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    James B. Cantrell of Pitts, Eubanks & Ross, P. A., Orlando, for appellants/cross-appellees.
    Robert R. McDaniel, Pensacola, for appel-lee/cross-appellant.
   PER CURIAM.

This is the appeal and cross-appeal of the deputy commissioner’s order granting benefits to James Watson. Watson has abandoned his cross-appeal. The appellant, however, raises four points for our consideration including whether the deputy commissioner erred in granting attorney’s fees. The order appealed from was dated October 9, 1979. In that order, the deputy commissioner reserved jurisdiction to determine an appropriate attorney’s fee. On December 12, 1979, the deputy commissioner rendered an order awarding an attorney’s fee. The appellant did not appeal the order of December 12,1979, and, therefore, this issue is not appropriate for our consideration. We further find that the other points on appeal do not warrant reversing the deputy commissioner’s order. Accordingly, the order is affirmed.

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


author: PER CURIAM. BOOTH, Judge,

text:
    SAN MARCO COMPANY, INC.; Liberty Mutual Insurance Co., Appellants, v. Barney Louis LANGFORD, Appellee.
    No. SS-244.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    Bernard J. Zimmerman and Jose R. Rodriguez of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    John DeM. Haines of Winderweedle, Haines, Ward & Woodman, P. A., Winter Park, for appellee.
   PER CURIAM.

The employer/carrier appeals the order of the deputy commissioner finding that the claimant, on September 12, 1978, suffered a compensable accident arising out of and in the course of his employment when he was shot during working hours on the employer’s premises by a fellow employee.

The claimant is a dragline operator who lived in the assailant’s home when he was working in the Orlando, Florida area. On the evening prior to the shooting, the claimant and his assailant, Edward Meeks, had dinner together at which time Meeks, who was in a belligerent mood, expressed dissatisfaction with his employers and accused the claimant of owing him rent. The claimant paid for both meals, and waited for Meeks in his truck. Meeks came out of the restaurant, got into the truck, got back out of the truck, walked to the rear of a building and disappeared into the night. The claimant next saw Meeks moments before he was shot. Ronald Culpepper, the employer’s foreman, testified that on the morning of the 12th, Meeks called in to report that he would not be in to work that day. Later, however, he was seen by Cul-pepper approaching the building with a shotgun. Culpepper, who had been made aware of the previous evening’s argument, told the claimant to go out the back door. Meeks called the claimant by name twice and shot him as he attempted to leave. Other employees sitting around in the office left leaving Culpepper and Terry Wallace facing Meeks. Wallace took flight giving Culpepper an opportunity to throw a fan at Meeks. A scuffle ensued and Culpepper gained control of the gun. It was at this point that Meeks told Culpepper that he had another gun and that he was going to get him. Meeks later told Deputy Sheriff Fred Mack who investigated the shooting that the claimant owed him money and had drawn a knife on him. He stated that he would kill anyone who drew a knife on him and that it was his intention to blow the claimant’s brains out, if he could.

First off, we agree that the claimant was not the aggressor. This, however, is not the deciding factor for there remains the question of whether the shooting arose out of the employment. Professor Larson, in his treatment of the subject states:

When the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment under any test.
When it is clear that the origin of the assault was purely private and personal, and that the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held noncompensable even in states fully accepting the positional-risk test, since that test applies only when the risk is “neutral.”

It is clear to this court that the assault in this instance was the result of personal animosity. We find no competent substantial evidence to the contrary. The shooting occurred as a result of Meeks’ personal feud with the claimant. That it occurred on the premises of the employer was merely fortuitous.

The order of the deputy commissioner dated October 23, 1979, is reversed and the claim is dismissed.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

Claimant was the victim of an unprovoked assault while he was on the job. The assailant, a fellow employee, also attempted to shoot the job superintendent. Further testimony was that the assailant, employed for many years by this employer, had a serious drinking problem and was seen in a heavily intoxicated condition a few hours prior to the assault. The assailant testified that he did not remember going to the job site and that his drinking was the cause of the assault. The Deputy found that claimant did not provoke the assault and that his injuries were compensable.

In W. T. Edwards Hospital v. Rakestraw, 114 So.2d 802 (Fla. 1st DCA 1959), claimant and a fellow employee became involved in an argument unrelated to the employer’s business; and this led, on the following day, to the fellow employee assaulting claimant on the job. The Deputy found that the assault was unprovoked by the claimant. In upholding the finding of compensability, this court held (114 So.2d at 803):

' The key to the question of whether Rakestraw suffered a compensable injury lies in the fact, as found by the deputy and supported by the evidence, that he was not the aggressor in the altercation. This, rather than the “positional-risk” doctrine, is the criterion upon which we conclude, . . . that there was no error in the ultimate holding of the Full Commission by which the finding of the deputy on that subject was affirmed, (emphasis theirs)

The finding of the Deputy that claimant did not provoke the assault and that he was entitled to workmen’s compensation benefits is supported by competent substantial evidence and should be affirmed.

I respectfully dissent.

      . 1 A. Larson, The Law of Workmen’s Compensation, § 11.21 (1978).


author: WENTWORTH, Judge.

text:
    G. K. D., a child, Appellant, v. STATE of Florida, Appellee.
    No. TT-148.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.

      Michael Minerva, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment and sentence entered in the circuit court for Duval County.

Appellant, a 12 year old youth, was adjudicated a delinquent child because he “did willfully and maliciously injure or damage the real or personal property of another . . . . ” The record shows that the front window of a business establishment was broken and appellant, together with a companion, was apprehended near the scene. Appellant initially denied any involvement in or knowledge of the matter, but after 15 minutes admitted “hitting the window,” “wondering if it would break,” and striking it with a “karate type kick” whereupon the window did break. Appellant and his companion had seen a “karate movie” earlier in the evening.

At the close of state’s evidence appellant moved for judgment of acquittal, which motion was denied. The motion was again made and denied at the close of the evidence. Appellant was adjudicated delinquent and committed to HRS. A motion to vacate judgment was made and denied.

This is an Anders appeal (see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)); appellant’s appointed counsel is unable to assert, in good faith, any point of reversible error. Appellant was provided the opportunity to, but did not, file a brief in his own behalf. An independent examination of the record likewise fails to reveal any arguable point of reversible error.

Appellant testified that he did not intend to break the window, but the record indicates that he did willfully kick the window, and he may be presumed to have intended the probable consequences of his actions. Although appellant’s parents were not notified prior to the on-site interrogation (see § 39.03(3), Florida Statutes), such lack of notification does not prohibit the on-site interrogation in the circumstances of this case. See Doerr v. State, 383 So.2d 905 (Fla.1980).

Appellant was found to have committed a misdemeanor, violating § 806.13, Florida Statutes, and the action taken by the trial judge was within her power pursuant to Chapter 39, Florida Statutes. See § 39.01(8) and 39.10(2).

We accordingly affirm.

ERVIN and SHAW, JJ., concur.


author: BASKIN, Judge.

text:
    L. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1007.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen. and Michael A. Van-detty, Certified Legal Intern, for appellee.
    Before BARKDULL, BASKIN and PEARSON, DANIEL, JJ.
   BASKIN, Judge.

We reverse the adjudication of delinquency by the commission of a battery entered against defendant L.S. Although circumstantial evidence disclosed that defendant was present with another child when motorcycle gloves were taken from the victim’s back pocket and he was pushed from behind causing him to fall, the evidence was insufficient to prove beyond a reasonable doubt that defendant was the unseen person who pushed the victim. State v. V. D. B., 270 So.2d 6 (Fla.1972). The evidence is entirely circumstantial and must therefore be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. J. O. v. State, 384 So.2d 966 (Fla.3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla.2d DCA 1980). The evidence was also insufficient to prove that defendant was an aider and abettor.


text:
    Terry Leon WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-471.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Jeffrey M. Mart, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Ashby, 245 So.2d 225 (Fla.1971); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979); United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Cf., Paramore v. State, 229 So.2d 885 (Fla.1969).


text:
    Eddunio CORRALIZA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1355.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Bennett H. Brummer, Public Defender and Rory S. Stein and Joseph C. Segor, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The final orders under review which withhold adjudication and place the appellant on five years probation in this criminal cause are affirmed, save for the order imposing five years probation for the crime of petit theft in circuit court case no. 79-2411 which shall stand reversed, upon a holding that (a) the legal issue concerning the validity of the juvenile bindover order, which was sought to be preserved for appeal by the entry of appellant’s nolo conten-dere plea below, is not dispositive of the case as a reversal thereof would not result in appellant’s discharge from the cause but a remand for either a rehearing or retrial in the juvenile division of the circuit court, and, accordingly, the issue sought to be preserved is not properly before us, Brown v. State, 376 So.2d 382 (Fla.1979); see Woods v. State, 369 So.2d 632 (Fla. 4th DCA 1979); Mitchell v. State, 351 So.2d 1142 (Fla. 1st DCA 1977); State v. D. R. S., 344 So.2d 317 (Fla. 1st DCA 1977); Spencer v. State, 332 So.2d 30 (Fla. 1st DCA 1976); and (b) the imposition of five years probation for the crime of petit larceny as a second degree misdemeanor [§ 812.014(2)(c), Fla.Stat. (1979)] constitutes fundamental error because it exceeds the maximum probationary term for a second degree misdemeanor which is six months. Rose v. State, 369 So.2d 1025 (Fla. 3d DCA 1979); Alderman v. State, 356 So.2d 928 (Fla. 2d DCA 1978); § 948.04(1), Fla.Stat. (1979). The trial court may upon remand correct the sentence on the petit theft conviction in circuit court case no. 79 — 2411 without requiring the presence of the appellant.

Affirmed as modified.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. John WARE, Appellee.
    No. 79-2300.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Walton, Lantaff, Schroeder & Carson and Joan S. Buckley, Miami, for appellant.
    Samuel J. Hannon and C. J. Van Delin-der, Miami, for appellee.
    Before HUBBART, C. J., NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The final order under review awarding plaintiff attorney’s fees in an action against the insured is reversed in that no final judgment on the merits has been rendered by the trial court in the plaintiff’s favor which is necessary to activate Section 627.-428(1), Florida Statutes (1979). Insurance Company of North America v. Electric Power & Service, Inc., 384 So.2d 915 (Fla. 3d DCA 1980); American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978), cert. dismissed, 367 So.2d 1124 (Fla.1979).

Reversed and remanded.


text:
    Frank BETHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-607.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Bennett H. Brummer, Public Defender and Jay M. Levy, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980); Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971), cert. denied, 247 So.2d 63 (Fla.1971); see also, Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980).


text:
    PAN AMERICAN TITLE SERVICES, INC., Appellant, v. TRUST COMPANY BANK, Appellee.
    No. 80-694.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Leon G. Nichols, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Curtis Carlson, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Coyle v. Pan American Bank of Miami, 377 So.2d 213 (Fla. 3d DCA 1979); United States ex rel. Westinghouse Electric Corp. v. Sommer Corp., 580 F.2d 179 (5th Cir. 1978); § 673.120, Fla.Stat. (1977).


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Myrna Fernandez COOPER, Appellee.
    No. 80-809.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Janet Reno, State Atty., and Milton Robbins, Asst. State Atty. and Bruce H. Lehr, Legal Intern, for appellant.
    Keith M. Krasnove, Margate, for appel-lee.

      Before SCHWARTZ, NESBITT and PEARSON, DANIEL, JJ.
   SCHWARTZ, Judge.

Blood samples were taken from the defendant-appellee soon after her arrest for manslaughter caused by driving a vehicle while intoxicated. Two vials of the blood were transmitted to the Dade County Medical Examiner and one to the Public Safety Department. Both entities conducted chemical tests on their respective samples. Those performed by the medical examiner’s office revealed an alcohol content of .100 per cent, the lowest reading which constitutes prima facie evidence that the individual in question was under the influence. § 322.262(2)(c), Fla.Stat. (1979). Because of the acknowledged possibility of a sampling error of between .005 and .015 per cent, which could have reduced the reading below that percentage, both the state and the defendant regarded this testimony as, at the least, unfavorable to the prosecution if not positively helpful to the defense. Two separate testings of its vial by the PSD showed, however, a level of .160 per cent, well beyond both the margin of error above the .100 statutory figure and any normal deviation from the .100 reading obtained by the medical examiner.

Prior to the trial, the blood in the medical examiner’s possession was inadvertently destroyed “by attrition.” Solely for this reason, and although the blood in the possession of the PSD remained available for further analysis, the trial judge suppressed evidence of both sets of tests, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state appeals from the order of suppression, which we reverse.

Simply stated, we are unable to discern even a colorable basis for the order below. The evidence favorable to the defendant in this case-the so-called Brady material-was not the blood itself, but the results of the medical examiner’s analysis of that blood. See, G. E. G. v. State, 389 So.2d 325 (Fla. 5th DCA 1980). Not only was this evidence not concealed by the prosecution, the defendant remained and remains free to introduce it as she sees fit at the trial. See, G. E. G. v. State, supra; Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980); Jones v. State, 360 So.2d 1293 (Fla.3d DCA 1978). The loss of the particular samples upon which those tests were run was thus affirmatively shown to have been nonprejudicial. This case therefore presents an a fortiori situation to those in such decisions as State v. Sobel, 363 So.2d 324 (Fla.1978), and Budman v. State, 362 So.2d 1022 (Fla.3d DCA 1978) in which there was no showing that destroyed material would have aided the defendant’s case. See generally, State v. Snell, 391 So.2d 299 (Fla. 5th DCA 1980).

That reversal is required is made even more evident by the fact that a quantity of blood remains in existence for still-further testing if desired. Even when, unlike this instance, favorable test results have not already been obtained, we are aware of no case in which it has been so much as seriously contended that incriminating material should be suppressed after any part of it has been destroyed. Compare Jones v. State, supra, and cases cited, with Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980). The contrary rule would mean that the burning of nine tons (or one ounce) of a ten ton quantity of marijuana would doom the state’s case.

In sum, the destruction by the state of physical evidence may not result in suppression or dismissal unless, at a minimum, exculpatory testimony neither actually has been nor potentially may be derived from that source. In this case, both circumstances obtain and the order below manifestly must therefore be

Reversed.

      . Under Sec. 322.262(2)(b), a reading of between .05 and .10 is admissible into evidence but raises no presumption either way.

      . Even then, evidence concerning the material may be permitted under some circumstances, as when the entire quantity of a drug has been unavoidably consumed in the course of testing and the defendant has not been prejudiced. State v. Atkins, 369 So.2d 389 (Fla.2d DCA 1979); Adams v. State, 367 So.2d 635 (Fla.2d DCA 1979); State v. Herrera, 365 So.2d 399 (Fla.3d DCA 1978); see also, State v. Snell, supra; G. E. G. v. State, supra.


text:
    Henry BETANCOURT, Appellant, v. COMMERCIAL BANK AND TRUST COMPANY et al., Appellees.
    No. 80-894.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Rehearing Denied Jan. 9, 1981.
    Rudolph Browd, Miami, for appellant.
    Steven A. Schultz, Miami, for appellee.
    Before BARKDULL, BASKIN and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. Proctor v. Hearne, 100 Fla. 1180, 131 So. 173 (1930); Biltmore Terrace Associates v. Kegan, 130 So.2d 631 (Fla. 3d DCA 1961); Creviston v. General Motors Corporation, 225 So.2d 331 (Fla.1969); In re Yohn’s Estate, 238 So.2d 290 (Fla.1970); Smith v. Continental Insurance Company, 326 So.2d 189 (Fla. 2d DCA 1976); Inman v. The Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977); Alario v. Miller, 354 So.2d 925 (Fla. 2d DCA 1978); Robertson v. Goethel, 369 So.2d 365 (Fla. 3d DCA 1979); Applegate v. The Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980); Section 95.11(3)(a) Florida Statutes (1973).


author: PEARSON, DANIEL S., Judge.

text:
    Leo RODRIGUEZ, Appellant, v. Manuel ESQUIJAROSA, etc., et al., Appellees.
    No. 80-902.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Leland E. Stansell, Jr. and Douglas A. McDuff, Miami, for appellant.
    William J. Williams, Alan R. Dakan, Miami, for appellees.
    Before BARKDULL, BASKIN and PEARSON, DANIEL S., JJ.
   PEARSON, DANIEL S., Judge.

We affirm the judgment below on a holding that the jury was warranted in finding that the act of the defendant Rodriguez in pumping a BB-gun for a seven-year-old child immediately after observing the child point the gun at another [notwithstanding that the defendant may not have been responsible for the welfare of the child and thus not vicariously responsible for the child’s misuse of the gun under Section 790.22, Florida Statutes (1979)] was a negligent act committed by the defendant, rendering him directly responsible for the foreseeable harm to the minor plaintiff, Esqui-jarosa, who was shot and injured when the seven-year-old fired the gun cocked by the defendant. See Wyatt v. McMullen, 350 So.2d 1115 (Fla. 1st DCA 1977).

Affirmed.


text:
    Frank RENNOLDS, Appellant, v. SHAMROCK AUTO RENTALS, INC., and Ackerley Communications, Inc., Appellees.
    No. 80-909.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Hays & Grundwerg and Richard J. Hays, Miami, for appellant.
    Steel, Hector & Davis and Donald M. Middlebrooks, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Hales v. Ashland Oil, Inc., 342 So.2d 984 (Fla. 3d DCA 1977); Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980).