author:
PER CURIAM.
      HUBBART, Chief Judge

text:
    IBIS CONSTRUCTION COMPANY, Appellant, v. Richard SINCLAIR and Barbara Sinclair, Appellees.
    No. 81-499.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 18, 1981.
    Pallot, Popped, Goodman & Slotnick and Neil A. Shanzer, Miami, for appellant.
    Schwartz & Nash and Stephen Lipton, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

We conclude that the finding that the appellant was guilty of civil contempt by violating agreed court orders is completely supported by the evidence, see, Shaw v. Shaw, 334 So.2d 13 (Fla.1976); South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956); and that the assessment of a compensatory fine which included the appellees’ attorney’s fees was justified by the circumstances and the applicable law. South Dade Farms, Inc. v. Peters, supra; National Exterminators, Inc. v. Truly Nolen, Inc., 86 So.2d 816 (Fla.1956); Gregory v. Mucho K, Inc., 438 F.Supp. 1117 (S.D.Fla.1977), rev’d on other grounds, 578 F.2d 1156 (5th Cir. 1978).

Affirmed.

HUBBART, Chief Judge

(concurring in part; dissenting in part).

I entirely agree with the court’s disposition of this appeal except insofar as it sustains the award of attorney’s fees for the appellee in this civil contempt action. I think the contempt order under review, insofar as it awards attorney’s fees as part of the compensatory fine imposed, must be reversed and the cause remanded for further proceedings.

The Florida Supreme Court states the applicable law here in Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759, 761 (Fla.1976), wherein it quoted with approval from Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1967), as follows:

“It is an elemental principle of law in this State that attorney’s fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.”

It is clear beyond dispute that the attorney’s fee award in this instant case cannot be sustained on this record as falling into any of the above three categories. It is, therefore, clear that the attorney’s fee award contained in the order under review must be reversed based on the established law of this state.

It is urged, however, that a fourth category has been recognized in this state where a prevailing party in a civil action may obtain attorney’s fees, to wit: when such a fee is part of the damages sustained by the prevailing party, as here, in a civil contempt proceeding. I am unaware of any decision in this state which has so held, see 11 Fla.Jur.2d, “Contempt” § 45 (1979), and cases collected, and my review of South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956), and National Exterminators, Inc. v. Truly Nolen, Inc., 86 So.2d 816 (Fla.1956), reveals that the subject issue was in no way involved in those cases. It may very well be that such an award should be considered part of the overall damages sustained by such a party, but, in my view, until the Florida Supreme Court so rules, we are bound by the law of this state as announced in Estate of Hampton v. Fairchild-Florida Construction Co., supra, and Kittel v. Kittel, supra. Compare City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla. 3d DCA 1980).

I would, accordingly, reverse the order under review only insofar as it awards attorney’s fees as part of the compensatory fine imposed on the appellant and remand the cause to the trial court with directions to impose a new fine absent an attorney’s fee award. See e. g., Hoffman v. Jones, 280 So.2d 431 (Fla.1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The WORLD SECURITY FUND, a Panamanian corporation, R. L. Randolph and J. D. Suarez, Appellants, v. Carlos Guillermo SCHMIDT, Roberto Alfredo Schmidt, Carlos Frederico Schmidt, H. M. De Schmidt E. Hijos & Cia, Carlos, Schmidt & Cia, Appellees.
    No. 81-805.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 16, 1981.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and Ronald P. Weil, William Y. Sayad, Jr., Miami, for appellants.
    Fieldstone, Oliver, Kluger, Sumberg & Mondre and Alan J. Kluger, Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the order of the trial court refusing to dissolve a temporary injunction entered in favor of the appellees upon a holding that (1) the appellants have not met their burden to make it appear that the injunction entered is without basis in the pleadings and evidence or is illegal in its nature, see Sharp v. Bussey, 129 Fla. 775, 176 So. 763 (Fla. 1937); Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561 (Fla. 3d DCA 1976); Cunningham v. Dozer, 159 So.2d 105 (Fla. 3d DCA 1963); (2) while the trial court could not have legally kept the temporary injunction in effect after it dismissed the appellees’ complaint with leave to amend in December 1980, City of Miami Beach v. Morgan, 64 So.2d 560 (Fla. 1953); Hall v. Hanford, 64 So.2d 303 (Fla. 1953), the appellants sought no review of that action, instead lodging their appeal from the trial court’s refusal in March 1981 to dissolve the injunction after the appellees’ amended complaint was before it; and (3) since the temporary injunction was entered before January 1, 1981, the effective date of Florida Rule of Civil Procedure 1.610(b)(2) and (d), which required written findings, and since the dismissal of the appellees’ original complaint did not ipso facto operate to dissolve the injunction so as to make the appellants’ motion to dissolve heard after January 1, 1981, in effect a new application by the appellees for a temporary injunction requiring compliance with the amended rules, the trial court’s failure to enter written findings is not error. We also affirm the trial court’s refusal to increase the amounts of deposit to be made by appellees into the registry of the court, without prejudice to further applications to the trial court by the appellants, upon appropriate pleadings and showing that the amounts of deposit are inadequate to compensate the appellants for damages resulting from the wrongful issuance of injunctive relief.

Affirmed.

      . The primary thrust of the complaint was the appellees’ concern that the appellants would be unable to live up to their admitted obligation to pay sums admittedly due appellees beginning in 1982. As the trial court apparently recognized when it dismissed the complaint, an allegation of insolvency standing by itself will not support the issuance of a temporary injunction. Godwin v. Phifer, 51 Fla. 441, 41 So. 597 (Fla. 1906). The amended complaint clarified, and the court so found, that the appellants and appellees did not merely stand in a relation of debtors and creditors, but rather that the appellants occupied the position of fiduciaries in relation to the appellees.


text:
    Pedro M. SARDUY, et al., Appellants, v. Milton MARTINEZ, Appellee.
    No. 81-1223.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 16, 1981.
    Rudolph Browd, Miami, for appellants.
    Nathan & Williams and Martin L. Nathan, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Uhrig v. Redding, 150 Fla. 480, 8 So.2d 4 (Fla. 1942); Perez v. Hernandez, 323 So.2d 4 (Fla. 3d DCA 1975). See also Schilpp v. Schilpp, 380 So.2d 573 (Fla. 1st DCA 1980).


text:
    Tina Rene HERNANDEZ, Appellant, v. Gerald HERNANDEZ, Sr., Appellee.
    No. 81-1328.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 16, 1981.

      Richard E. Doherty, Miami, for appellant.
    James A. Pearson, Hollywood, for appel-lee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The sole reason for the trial court’s order requiring the mother, Tina Hernandez, to turn over custody of the parties’ two-year-old child to the father, Gerald Hernandez, was its belief that the full faith and credit clause of the United States Constitution required it to enforce a Texas custody order in favor of the father and precluded the mother from attacking the jurisdiction of the Texas court in Florida. Since a court of this state need give full faith and credit to the custody decree of a foreign state only when it first finds that the foreign state had jurisdiction of the custody issue, Howard v. Howard, 378 So.2d 1329 (Fla. 5th DCA 1980), see also Geisler v. Geisler, 397 So.2d 1216 (Fla.2d DCA 1981), it is apparent that Tina Hernandez had a right to be heard on her claims (a) that Texas was without jurisdiction under its own laws to enter a custody decree; (b) that to the extent Texas law permits courts of that state to exercise jurisdiction over minors, inconsistent with the residency requirements of the Uniform Child Custody Jurisdiction Act, Sections 61.1302-61.1348, Florida Statutes (1979), the Texas custody decree need not be recognized; (c) that in any event, at the time of the hearing below, Florida was the home state of the child under the Uniform Child Custody Jurisdiction Act, and notwithstanding the Texas order, the Florida court was free to exercise jurisdiction and render an appropriate custody order based upon the best interests of the child. See Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980). See also Anderson v. Anderson, 234 So.2d 772 (Fla.3d DCA 1970) (pre-Uniform Child Custody Jurisdiction Act).

Accordingly, we reverse the trial court’s order which granted the father’s petition for writ of habeas corpus and remand the cause with directions to conduct further proceedings consistent with this opinion. We express no view on these or other issues that may be raised by the parties at a full and fair hearing. If the trial court concludes that given the prolonged history of this all too realistic tug of war that the interests of the child would best be served by the appointment of a guardian ad litem, then of course that should be done.

Reversed and remanded.

      . U.S. Const., art. IV, § 1, in pertinent part provides:
      “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. ...”

      . Texas has not adopted the Uniform Child Custody Jurisdiction Act.


author: RIYKIND, LEONARD, Associate Judge.

text:
    DREXEL PROPERTIES, INC., Appellant, v. BAY COLONY CLUB CONDOMINIUM, INC., et al., Appellees.
    No. 79-2126.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 18, 1981.

      Eric B. Meyers and Gregory P. Borgogno-ni of Shutts & Bowen, Miami, and Brian C. Deuschle of Spear, Deuschle & Curran, Fort Lauderdale, for appellant.
    Alan S. Becker and Robert J. Manne of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellee.
    Barry A. Mandelkorn of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for amicus curiae, Oriole Homes Corp.
    William G. Crawford, Jr., Fort Lauder-dale, for amicus curiae, American Institute of Architects/Broward Chapter.
    David St. John of Powell, Tennyson & St. John, P. A., West Palm Beach, for amici curiae, Florida Consumers’ Federation and Condominium Co-op Executive Council.
   RIYKIND, LEONARD, Associate Judge.

A non-jury trial of this class action for construction defects resulted in a final judgment in the amount of $917,356.00. The action was commenced by the condominium association and representative unit owners, appellees herein, against the developer of the Bay Colony Club Condominium, appellant herein. The amended complaint, upon which the case was tried, claimed that the developer was guilty of breach of implied warranty and of negligence in allegedly failing to construct the condominium in a manner required by the South Florida Building Code (Broward Ed. 1972), plans and specifications, and good design, engineering and construction practice. The items of damages awarded which are disputed on appeal involve “decorative aluminum fencing” ($145,000.00), “ceiling roof assembly” ($292,000.00), and “aluminum awning windows” ($288,500.00).

The Decorative Aluminum Fencing

The construction plans filed with the applicable governmental authority, and upon which a building permit was issued, detailed the construction of decorative aluminum fencing around the air conditioning units which are located on the top of . the roof of each building. It was not installed and the construction plans were not amended. Its purpose was to perform an aesthetic rather than utilitarian function. No physical damage was claimed. The trial judge imposed liability upon the developer for “loss of bargain” because of its failure to file an amended plan with the governmental authority.

The Ceiling Roof Assembly

The South Florida Building Code requires that ceilings be of not less than one-hour fire resistive construction. On conflicting testimony the trial judge found the ceiling roof assembly was not capable of a one-hour fire resistive rating. We cannot disturb this finding since it is supported by substantial competent evidence.

The Aluminum Awning Windows

The South Florida Building Code requires that a bedroom window be capable of a five square foot opening without the use of tools. On conflicting testimony the trial judge found that the bedroom aluminum awning windows could not be opened to provide a clear opening of five square feet without the use of tools. We cannot disturb this finding since it is supported by substantial competent evidence.

In its final judgment the trial court made the following conclusions of law.

1. With regard to the Count of negligence, the Court finds that:
(a) Plaintiffs have a right to maintain this action on behalf of both original and subsequent purchasers . . .
2. With regard to the Count of breach of implied warranties, the court finds:
(a) That original purchasers and subsequent purchasers of condominium apartments may recover for the entire damages to items which are common elements.
(b) That original purchasers who still own their apartments are entitled to recover for the full amount of damage to the common elements of the condominium resulting from Defendant’s breach of implied warranties of fitness and merchantability notwithstanding that they own those common elements as tenants in common with subsequent purchasers of the condominium apartments .. .

The appellant has raised a number of points on appeal. We believe only three merit consideration. Appellant states these points as follows:

POINT I
Because the negligence alleged in the complaint did not result in physical harm to plaintiffs or their property, the trial court erred by allowing recovery on the basis that violations of the building code and defects in the buildings at Bay Colony were negligence.
POINT II
The trial court erred by creating an implied warranty of strict compliance with the building code.
A. The implied warranty extended to original purchasers of buildings in Florida requires the building to be reasonably fit for use as a residence.
B. The alleged building code violations and defects in the instant case were not found to have affected the fitness for use as a residence of any condominium unit at Bay Colony.
POINT III
Even if Drexel had been negligent or had breached an implied warranty the trial court erred by awarding damages to subsequent purchasers and by finding that plaintiffs could recover the full amount of damages to common elements.
Stave Decisis We recognize that liability must have an end but question the creation of any artificial limits of either time or remoteness to the original purchaser.

In the beginning, Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), adopted and approved, 264 So.2d 418 (Fla.1972), extended an implied warranty of fitness and merchantability to the purchase of new condominiums from builders. That case involved a malfunctioning air conditioning system under an expired express warranty. The Gable opinion reached no decision as to subsequent purchasers but observed:

Page 18.

See, also, Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla, 3d DCA 1975).

Wittington Condominium Apartments, Inc. v. Braemar Corporation, 313 So.2d 463 (Fla. 4th DCA 1975), was a class action for negligent construction and breach of contract. In a footnote the court stated that implied warranty extends to “the purchaser of a new condominium.”

In another class action, Imperial Towers v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976), the court said that difference as to unit owners may permit subclasses to be designated for the purpose of determining damages.

In David v. B & J Holding Corporation, 349 So.2d 676 (Fla. 3d DCA 1977), plaintiffs brought suit for damages for developer’s failure to construct according to plans as filed with the governmental authority. The complaint concerned soundproofing and insulation in party walls. The developer failed to file an amendment to the plans, albeit it reserved the right in the sales contract to make changes.

The court said:

... we conclude that defendant, developer-builder impliedly warranted to the plaintiff condominium purchasers that their unit would be constructed in accordance with the specifications contained in the building plans filed with and approved by the appropriate governmental authority . . .
. . . therefore, having departed from those specifications, is liable to plaintiffs for breach of implied warranties of fitness and merchantability.

Page 678.

In Putnam v. Roudebush, 352 So.2d 908 (Fla. 2d DCA 1977), the court held that purchasers could not recover from developer on theory of breach of implied warranty for a noisy air conditioner since the test was “whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and qualities.”

B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1977), was a suit by a condominium association and unit owners against the developer for breach of contract and implied warranty. The defects alleged were no sound boards in party walls, no moisture proofing in card room wall, incorrect voltage system, utilization of 3 HP rather than 5 HP water pumps, failure to house hot water heaters on roof and use of clear plate glass rather than tinted glass. The court affirmed the final judgment which awarded damages to correct the defects or complete the omissions.

In Gory Associated Industries, Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978), the court allowed a homeowner the cost of replacement of a defective roof against a tile manufacturer. Judge Letts, speaking for the court, said:

We would comment that we are sympathetic to a replacement of defective work. If a proud householder, who plans to live out his days in the home of his dreams, orders a new roof of red barrel tile and the roofer instead installs a purple one, money damages for the reduced value of his house may not be enough to affect the strident offense to aesthetic sensibilities, continuing over the life of the roof.

Page 95.

Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978), involved water rot and termite infestation due to the negligent construction of a house by the defendant — contractor. The defects were latent and resulted from non-compliance with the building code. The plaintiff purchased the house from the first buyer. The court held there was no implied warranty because plaintiff was a remote purchaser. However, the court held that the contractor could be sued on the theory of negligence. See, also, Slavin v. Kay, 108 So.2d 462 (Fla.1958) and Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970).

Strathmore Riverside v. Paver Development Corp., 369 So.2d 971 (Fla. 2d DCA 1979), cert. denied, 379 So.2d 210 (Fla.1979), recognized that a cause of action exists for breach of implied warranty of compliance with plans and specifications approved by governmental body, of compliance with applicable building codes, and of fitness and merchantability, as to original purchasers in privity with developer. The court specifically rejected the invitation to extend the implied warranty to remote or subsequent purchasers. In Strathmore, the complaint did not include a count in negligence in behalf of original or subsequent purchasers.

In Navajo Circle, Inc. v. Development Concepts, 373 So.2d 689 (Fla. 2d DCA 1979), the court held that no privity is required to allege a cause of action for negligent performance of a contractual obligation. The court cited A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973) as authority for the principle that a party who may foreseeably be injured or sustain an economic loss proximately caused by the negligent performance of a contractual duty of an architect has a cause of action against such architect.

Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979), approving Strathmore, supra, held no implied warranty is extended to remote purchasers. The court further held that no privity is required to maintain an action for negligence against an architect or builder of a condominium project, therefore secondary purchasers may recover damages which are reasonably foreseeable. See, also, Solomon v. Gentry, 388 So.2d 52 (Fla. 4th DCA 1980).

CONCLUSION

Implied Warranty

We decline appellees’ invitation to extend an implied warranty in the sale of a new home to subsequent or remote purchasers. We hold that doctrine is applicable only to those who are in privity with the seller. We adhere to Strathmore and Parliament, supra. We further agree with Strathmore that as to original purchasers, there exists an implied warranty of substantial compliance with plans and specifications approved by the governmental authority, of compliance with applicable building codes, and of fitness and merchantability. This does not mean that the developer must deliver a perfect house. But it does mean that major defects, as determined by the trier of fact, entitle the original buyer to damages to remedy or repair the defects.

Negligence

We hold that no privity of contract must exist in order for negligent performance of a contractual duty to give rise to liability for damage to an intangible economic interest. We reject the contention by appellant that there can be no recovery in negligence absent proof of personal injury or property damage. We hold that there can be recovery for economic loss. Why should a buyer have to wait for a personal tragedy to occur in order to recover damages to remedy or repair defects? In the final analysis, the cost to the developer for a resulting tragedy could be far greater than the cost of remedying the condition. We conclude that a cause of action for negligent construction exists in favor of both original and subsequent purchasers. Whether or not the developer exercised the requisite care, technical skill and ability are questions to be determined by the trier of fact.

Common Elements

We hold that as to common elements, the appellees may recover the entire damages on either theory, albeit the subsequent or remote purchasers will benefit thereby. To conclude otherwise and apportion the damages would penalize the original purchasers. In order for appellees to receive the benefit of their bargain and be made whole, the amount of damages awarded must equal the sum necessary to correct the condition.

We now consider the disputed items of damages awarded sub judice in the light of the foregoing principles.

The Decorative Aluminum Fencing

There is no evidence of negligent construction. Ergo, appellees cannot recover damages on a theory of negligence. Original purchasers, however, can recover damages for breach of an implied warranty to construct the building in accordance with the plans and specifications on file with the governmental authority. As previously shown, this warranty does not extend to subsequent purchasers. The trial judge awarded appellees the entire damages for this omission. We, nevertheless, approve the sum awarded because it concerns common elements.

The Ceiling Roof Assembly

We approve the sum awarded on the theory of negligence both as to original and subsequent purchasers. We also approve the award based on implied warranty as to original purchasers. Furthermore, it was appropriate to award entire damages on implied warranty because it concerns common elements.

The Aluminum Awning Windows

This does not concern common elements. Entire damages were nevertheless awarded appellees. We approve the sum awarded to original purchasers on implied warranty and negligence and to subsequent purchasers on negligence.

We are aware there exists no unanimity of opinion in other jurisdictions concerning the foregoing principles. We believe the approach we have taken will discourage shoddy work and the fly-by-night operator while encouraging truth in building. The ordinary home buyer does not have the technical skills to discover construction defects and relies upon the skill and experience of the developer or builder. The importance to a buyer of the purchase of a new home is self-evident. The developer may build a house but the purchaser buys a home. “East is East and West is West and never the twain shall meet.” This “proud householder, who plans to live out his days in the home of his dreams”, as thoughtfully expressed by Judge Letts in Gory, supra, deserves the focus of the law and its concern.

AFFIRMED.

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

      . South Florida Building Code, Section 302.1(a) (Broward Ed. 1972) provides: “in the event of a change in any material fact given in the attested application which served as a basis for issuing the permit, the permit holder shall immediately file an amended attested application detailing such changed condition.”

      . Sections 2001.2(a) and 2006.2 (Broward Ed. 1972).

      . Section 3122.2 (Broward Ed. 1972) provides: “Doors and Windows: (a)(1) Sleeping rooms of Group H and I occupancy, unless having two doors providing separate ways of escape, or having a door leading outside of the building directly, shall have at least one outside window which can be opened from the inside without the use of tools to provide a clear opening of not less than 22 inch minimum dimension and five square feet in area, inside the perimeter frame, with the bottom of the opening not more than four feet above the floor.”

      . None of the parties suggest, and correctly so, that Florida Statutes 553.84 (1979) and 718.203 (1979) are applicable to this litigation. We need not decide what effect these statutes may have on future, similar litigation and our decision today.

      . Page 486, footnote 5.

      . In Slavin the plaintiff was injured when a washbasin, not securely fastened, fell on him. Held: contractor liable in negligence to third person for latent defects not discoverable or discovered by owner even after acceptance of work. In Geer plaintiff was injured in a fall due to the absence of a guard rail. Held: architect liable to anyone lawfully on premises for negligence based on defects in plans or supervising activities or both.

      . See footnote 4.

      . See, e. g., Mellander v. Kileen, 86 Ill.App.3d 213, 41 lll.Dec. 639, 407 N.E.2d 1137 (Ill.App. 1980); Summerhouse Condominium Association v. Majestic Savings & Loan Association, 615 P.2d 71 (Colo.App.1980); Terlinde v. Neely, 271 S.E.2d 768, (S.C.1980); Morris v. Holt, 380 Mass. 133, 401 N.E.2d 851 (1980); Sands v. R.G. McKelvey Bldg. Co., 571 S.W.2d 726 (Mo.App.1978); Crowder v. Vandendeale, 564 S.W.2d 879 (Mo.1978); Tavares v. Horstman, 542 P.2d 1275 (Wyo.1975); Barnes v. Mac Brown and Company, Inc., 264 Ind. 227, 342 N.E.2d 619 (1976). For excellent law review articles concerning the issues presented sub judice see Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell L.Q. 835 (1967) and Young & Harper, Quare: Caveat Emptor or Caveat Venditor?, 24 Ark.L.Rev. 245 (1970).

      . Rudyard Kipling, The Ballad of East and West (1889).


author: HURLEY, Judge.

text:
    Hetty S. FIRTH, Appellant, v. Gilbert L. MARHOEFER d/b/a Royal Admiral Apartments, Appellee.
    No. 80-877.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 18, 1981.
    G. Ware Cornell, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner of Fort Lauder-dale, for appellant.
    Charles T. Kessler of Pyszka, Kessler & Adams, Fort Lauderdale, for appellee.
   HURLEY, Judge.

This appeal is from a slip and fall case. At issue is the propriety of an order striking testimony which showed that sometime before the accident, the apartment house/hotel management was aware that water and other slippery substances collected on the floor of the passenger elevators and that the management had utilized carpets to absorb these substances. In our view, this testimony was relevant to the issue of notice, i. e., whether the slippery condition was a recurring problem which imposed a duty on the landlord to undertake reasonable preventive measures. Since its exclusion was erroneous and extremely prejudicial to the plaintiff, we reverse and remand for a new trial.

Appellant, Hetty S. Firth, was injured on May 16, 1978 when she slipped and fell in a passenger elevator on the premises of the Royal Admiral Apartments on Galt Ocean Mile in Fort Lauderdale. Mrs. Firth was seventy-two years old at the time of the accident and had resided at the Royal Admiral in a rental apartment since 1964. She testified that she left her apartment on the sixteenth floor and walked down the hallway to the elevator. She stepped inside, put her packages down, turned to push the button for the lobby, stepped backwards and slipped and fell. Mrs. Firth sustained serious injuries and thereafter sued the owner of the apartment building and his insurance carrier.

Testimony at trial revealed that the building was served by two passenger elevators and a service elevator. Since both the beach and a pool were readily accessible, house rules required bathers to utilize the service elevator. However, a former manager, Joanne Turner, testified that the rule was often disregarded and that it was difficult to enforce. She said that the service elevator was in use most of the time and thus unavailable to tenants and guests in the hotel-apartment building. She also testified that during her tenure as manager, the floors in the passenger elevators had been covered with carpeting. In fact, the management had maintained two sets of carpeting for each elevator so that when one set became wet and soiled it could be replaced by the other. Ms. Turner said that “quite frequently” the carpets in the passenger elevators had become soiled from “water from bathers, dog droppings or residue and sand, tár.” Sometime after Ms. Turner’s termination in 1977, the carpeting in the passenger elevators was removed, exposing a vinyl or linoleum floor.

At the close of plaintiff’s ease, defendant/appellee moved to strike all of the testimony regarding carpeting. The court granted the motion and instructed the jury as follows:

Ladies and gentlemen, you have heard some testimony regarding a rug on the floor or carpet or something on the floor of the elevator. There wasn’t any carpet the day of the accident — we are talking about the day of the accident. So I am requesting or telling you to strike from your mind the consideration of any carpet on the floor. You take life like you find it. That is the way life is. The question is: Whether or not that is negligent, not whether it was there last week or last year or six months before.
So when you all get to considering the case don’t — Whatever it may have been before is not relevant to the case. The case is going to boil down to the day of the incident whether somebody was negligent or not negligent.

The singular issue on appeal is whether the trial court erred in striking the testimony about carpeting and in instructing the jury that it could not be considered for any purpose. We begin our analysis by considering Section 83.51(2)(a)3, Florida Statutes (1979), which imposes a statutory duty upon landlords to take reasonable precautions to maintain apartment house common areas in a safe and clean condition. Before a landlord can be held liable for a breach of this duty, however, it is necessary to prove that the landlord had actual or constructive knowledge or notice of the existence of the dangerous condition for a time sufficient for it to be remedied. Marlo Investments, Inc. v. Verne, 227 So.2d 58 (Fla. 4th DCA 1969).

Constructive knowledge of a dangerous condition can be imputed to a landlord where it can be shown that the condition recurred with regularity and, consequently, was foreseeable. “Minimal standards of proper maintenance require the landlord to anticipate dangerous conditions that recur regularly, and to take some precautions.” Harris v. H.G. Smithy Co., 429 F.2d 744, 746 (D.C. Cir. 1970). This principle was operative in Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980), where the court held that repeated verbal and written warnings to the owners of an apartment building that a hallway was slippery and dangerous were sufficient to put them on notice of the recurring nature of the problem and thus created a jury question as to whether the landlords exercised reasonable care to guard against a foreseeable danger.

We believe that the carpeting testimony had the same relevance in the case at bar. It demonstrated that an accumulation of water, tar and other slippery substances in the passenger elevators was an ongoing problem which was known to the building management. Thus, there existed a jury question as to whether the landlord exercised reasonable care to guard against a foreseeable danger. The trial court’s order and jury instruction effectively foreclosed this issue from jury consideration. In so doing, the court impermissibly invaded the province of the jury to the prejudice of the plaintiff. Therefore, we reverse and remand the cause for a new trial.

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


author: DANIEL S. PEARSON, Associate Judge.

text:
    Dr. Gartrell GAINES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2332.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 23, 1981.

      Rendell Brown of Brown & Weaver, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DANIEL S. PEARSON, Associate Judge.

Gartrell Gaines appeals his convictions for (a) aiding and abetting the possession of hydromorphine, a controlled substance commonly known as Dilaudid, with intent to distribute and (b) aiding and abetting the possession of the same substance by misrepresentation, fraud, forgery, deception or subterfuge, violations of Section 893.-13(l)(a) and 893.13(3)(a)l, Florida Statutes (1977). The evidence was sufficient to establish that Gaines on or about June 21, 1978, aided and abetted others in unlawfully acquiring Dilaudid by verifying to one Gene Farley, a pharmacist, that a prescription for Dilaudid made out to one Willie Kendricks was genuine, when in (truth and fact, as Gaines well knew, the drug had never been prescribed by Gaines for Ken-dricks, and Gaines had not signed his name on the prescription form which bore his printed name, address and phone number.

Only two points raised by Gaines require discussion. The first is his contention that he was entitled to a judgment of acquittal because the State’s proof which showed that the Kendricks prescription was actually filled on June 22, 1978, varied from the date in the information and statement of particulars; and his alternative contention that he was entitled to have the jury instructed that the State was required to prove beyond a reasonable doubt that the crime was committed on June 21,1978, not, as it was instructed, on a date reasonably near the date alleged in the information.

The information alleged that Gaines committed the substantive offenses charged “on or about June 21, 1978.” Gaines moved for a statement of particulars requesting, inter alia, the State to set forth the time and date of the alleged offenses. The State’s written response was that the offenses occurred between “see the dates set forth in the Information.” Thus, by reference, the statement of particulars was that the offenses were committed on or about June 21, 1978.

Gaines did not pursue the matter further, for example, by requesting better particulars or asking the court’s aid in compelling a more exact answer. Later, the eo-defend-ant, Fowler, requested the same particulars. During a hearing on Fowler’s motion, the prosecutor, mistakenly referring to the date appearing on the prescription form, stated that the offenses occurred on June 21, 1978. Gaines moved for acquittal asserting that the prosecutor’s response to Fowler should be considered a response to Gaines, and that therefore, there existed a variance between the date stated and the date proved. That motion denied, Gaines requested that the jury be instructed that the State be required to prove that the offenses occurred on June 21, 1978. During the argument before the trial court, Gaines acquiesced in the statement of Fowler’s counsel, “We knew from the beginning of this case they had absolutely no evidence on June 21st, 1978. They had no evidence of these overt acts being committed on June 21st, 1978.” Finally, there is nothing about the difference between June 21 and June 22 which in the circumstances of this case serves to prejudice Gaines’ case in the slightest way.

The necessary premise to Gaines’ argument in support of the variance or the requested instruction is that he was advised by a statement of particulars that the offense was committed on June 21, 1978. Since the premise is false, Gaines’ argument fails at the threshold. The only particulars furnished to Gaines referred him back to the information, which in turn advised him that the offense was committed “on or about June 21, 1978.” He did nothing further about this non-answer. He did nothing to make himself the beneficiary of the prosecutor’s offhanded response to Fowler’s motion for particulars. Fowler’s coattail, itself threadbare, certainly will not support Gaines. But even if, arguendo, we regard the statement to Fowler that the offense was committed on June 21, 1978, as a further statement of particulars to Gaines, Gaines, although past the threshold, finds no comfort from the law within. It is now abundantly clear that even where the date of the offense contained in the information is later particularized, where a lack of prejudice to the defendant affirmatively appears in the record, as it so clearly does here, a statement of particulars is not binding on the State. Hoffman v. State, 397 So.2d 288 (Fla.1981), approving this court’s decision in Hoffman v. State, 372 So.2d 533 (Fla. 4th DCA 1979). Since Gaines was not misled or embarrassed or prejudiced in his defense in any way by relying on the inconsequential date of June 21, 1978, the trial court was correct in denying his motion for judgment of acquittal and denying his requested instruction. Compare R.C.B. v. State, 374 So.2d 1168 (Fla. 2d DCA 1979) (date of offense significant where burglaries of same premises occurred within three-week period); Jackson v. State, 350 So.2d 808 (Fla. 2d DCA 1977) (date of offense significant where alibi defense directed to specific date charged in information); Mitchell v. State, 333 So.2d 89 (Fla. 1st DCA 1976) (date of offense significant where alibi defense directed to specific date charged in information); Smith v. State, 253 So.2d 465 (Fla. 1st DCA 1971) (date of offense significant where act of bribery occurred after proceeding before and vote by public official under statute requiring act to precede proceeding or vote).

Gaines’ other point on appeal is that the trial court erred in denying his motion to suppress certain testimony of a witness, Gene Farley. This testimony, according to Gaines, was procured through suggestive police procedures and irreparably led to a misidentification of Gaines.

Gene Farley was a pharmacist employed' by Wallace Pharmacy in Belle Glade, Florida, from 1974 to 1979. He testified that on June 22, 1978, he filled a prescription for four milligrams of Dilaudid, a Schedule II narcotic, for a Willie Kendricks. Since he was not familiar with Kendricks, Farley called the office of the prescribing physician, Dr. Gaines, to obtain a verification before filling the prescription. A woman answered, and Farley asked to speak to Dr. Gaines. Farley’s testimony continued:

“A When Doctor Gaines came on the phone, I identified myself as to who I was and where I was and told him that I had a prescription presented to me to be filled for Dilaudid, four milligrams, for Willie Kendricks and I asked him if it was one of his
prescriptions and it was an authorized prescription by him.
“Q All right, now, did you then proceed to fill that prescription?
“A Yes, sir, after he confirmed it.
“Q Okay. Have you had an occasion to call the office of Doctor Gaines and speak to Doctor Gaines in the past?
“A Yes, sir.
“Q And approximately how many times, over what period of time?
“A Oh, I would say six times within two years, three years.
“Q And during that period of time, in conversations that you would have with him, how long would those conversations occur and what would be the nature of the conversations?
“A It would be anywhere from a minute to three or four minutes, depending on the circumstances and the nature of the prescription and I have always identified myself and made a few comments as to the weather or what have you, a few pleasantries and state the reason I called him, as far as the nature of the prescription or why I called to get the prescription authorized to fill, or refill.
“Q Did you become familiar with his voice during that period of time?
“A Yes, sir.
“Q And was there anything about that voice that was or was not familiar to you?
“A It was — he had a very distinctive accent to me, over the phone. It was characteristic of my high school chemistry teacher in high school.”
“Q And was there any doubt in your mind on that occasion that the man you spoke to on that occasion was the same man you spoke to on other occasions at Doctor Gaines’ office?
“A No, sir.
“Q And the other calls that you would make to Doctor Gaines, do you recall the nature of the prescriptions or the drugs that you would call on, would they vary, would they all be the same?”
“THE WITNESS: There were a varied type of drugs. I remember on two different occasions I did, I remember specifically I talked to him about the medication Dilaudid, four milligrams.”

On November 21, 1978, at the request of the Sheriff’s Office, Farley called the office of Dr. Gaines on the pretense of asking for a refill authorization for two prescriptions. Farley was told to ask for Dr. Gaines. He was not told that in fact it would be Dr. Gaines who would come on the line. Farley carried out these instructions. He testified that he recognized the voice which answered the phone as being the same voice which he had heard on each prior occasion when he called Gaines’ office and spoke to the person who identified himself as Dr. Gaines. Farley specifically stated that the voice of November 21, 1978, was the voice which had verified the Kendricks prescription on June 22, 1978. Thus, the essence of Farley’s testimony was that whomever he spoke to on November 21, 1978, was one and the same as the person who verified Kendricks’ prescription. Farley’s testimony merely established this sameness. It was testimony of an undercover detective who, unknown to Farley, was in Dr. Gaines’ office when Farley called on November 21, 1978, which established that the person with whom Farley spoke on that date was, in fact, Dr. Gaines.

There is no disagreement as to the applicable law. An identification is constitutionally defective only if the confrontation is unnecessarily suggestive and gives rise to a substantial likelihood of mistaken identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Grant v. State, 390 So.2d 341 (Fla.1980). This two-pronged test, first fashioned in regard to visual identification, is equally applicable to voice identification cases. United States v. Flickinger, 573 F.2d 1349 (9th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978). See Roper v. Beto, 454 F.2d 499 (5th Cir. 1972).

The State argues with some force that the Farley phone call on November 21, 1978, was not a suggestive confrontation procedure. We agree that the procedure itself was hardly more suggestive than Farley’s prior phone calls to the office of Gaines which, of course, were not made at the instance of the police. The suggestiveness of these phone calls lay in the inherent tendency to believe that when someone answered as Gaines, it was Gaines who was speaking. It can also fairly be said that no suggestion, explicit or implicit, was given to Farley that the voice which came on the line on November 21 would match the one he had heard on June 22, 1978, or if it did, that the voice would be that of Dr. Gaines, the defendant, rather than a person answering to that name. However, it is also true that a confrontation procedure which includes only a single voice is more suggestive than a procedure which includes a number of voices from which a selection is made and is unnecessarily so when the less suggestive procedure could have been used. Compare Roper v. Beto, supra; United States ex rel. Marino v. Bundle, 328 F.Supp. 1154 (E.D.Pa. 1971) (identification of defendant’s voice from several voices), with Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966); United States v. Flickinger, supra; Thomas v. Leeke, 393 F.Supp. 282 (D.S.C. 1975) (defendant’s voice only one heard by witness). See also United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir.), cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975) (nearly every one-on-one confrontation conveys a message that the police believed the suspect to be guilty). Even so, since the identification procedure employed, considering all the circumstances, did not give rise to any substantial likelihood of misidentification, Farley’s testimony concerning the November 21, 1978, voice identification was properly admitted.

Viewing the present voice identification against the factors generally used to evaluate the substantial likelihood of misidentifi-cation, see e. g., Neil v. Biggers, supra, we have no difficulty concluding that Farley’s identification of the voice on November 21 possessed the necessary reliability to make it admissible for the jury’s consideration. Farley had ample prior opportunity to hear the voice; he heard it before on a number of occasions in like telephone conversations, the context of which demanded that Farley pay attention to the voice; after the phone call of November 21,1978, Farley unhesitatingly and immediately stated that the voice he had just heard was the same voice that he had heard on June 22; and the lapse of time between June when Farley last heard the voice and November when he again identified it was not such as to make the identification unreliable, particularly considering that Farley initially pointed out a distinctive characteristic of the voice he had previously heard. While Farley’s level of certainty in his identification does not match in drama that of the rape victim who became ill when she heard the voice of her attacker, see Roper v. Beto, supra, and while the lapse of time between identifications is concededly in excess of the several days found in Roper v. Beto, supra, and United States ex rel. Marino v. Bundle, supra, the reliability of Farley’s identification does not necessarily pale by comparison. Farley, unlike the witnesses in those cases, was not a victim of the crime, more susceptible to suggestion. Moreover, neither Farley’s awareness that his purpose was to identify a voice, nor the fact that his identification was as to the single characteristic of voice, renders his identification unreliable. Roper v. Beto, supra; Jones v. Director, Patuxent Institution, 351 F.Supp. 913 (D. Md. 1972); United States ex rel. Marino v. Rundle, supra. The factors which led the courts in Palmer v. Peyton, supra, and Thomas v. Leeke, supra, to exclude the identification testimony: that the authorities, at least implicitly, pointed an accusatory finger at the suspect in the presence of an uncertain, anxious and interested victim-witness, and led the witness to believe that to fail to identify the individual would be inconsistent with other facts pointing to guilt, are simply not present here. Where such factors do not exist, see e. g., Sanchell v. Parratt, 530 F.2d 286 (8th Cir. 1976); United States ex rel. Kirby v. Sturges, supra; Roper v. Beto, supra; Jones v. Director, Patuxent Institution, supra; United States ex rel. Marino v. Rundle, supra, neither does there necessarily exist a substantial likelihood of misidentification. We find that the procedure used in the present case did not give rise to a substantial likelihood of misidentification. Accordingly, Gaines’ convictions are

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Kendricks was not a patient of Dr. Gaines and did not personally meet Gaines during the time in question. Kendricks was paid by the co-defendant, David Fowler, to pass the prescriptions and obtain the Dilaudid. Kendricks testified without objection that he saw Fowler meet with Gaines, that Fowler assured him Gaines would verify the prescriptions which Fowler gave Kendricks, and that Fowler told him he was paying off Gaines. After the police learned of Kendricks’ involvement, they enlisted Kendricks’ aid in going to Gaines to discuss the situation. The following exchange took place:
      “KENDRICKS: Wait a minute, let me tell you something. If I go to jail, y’all gon’ still be out here ...
      “[GAINES]: Naw, I’ll be in jail too, right along with you. If you go I swear I’ll be gone, right along with you. That’s why I’m trying to straighten you out.”

      . This particular prescription was the only one charged in the two substantive counts of the information. Gaines was acquitted of the charge of conspiring with David Fowler and Willie Kendricks to commit the substantive offense of distribution of Dilaudid. Fowler was convicted of the conspiracy and his conviction was affirmed by us. See Fowler v. State, 404 So.2d 151 (Fla. 4th DCA 1981).

      . The instruction requested was: “... in this case by a separate pleading the exact date has been made an issue to be tried. The burden, therefore, rests upon the State to prove beyond a reasonable doubt that the crime was committed on [June 21, 1978].” The instruction given was: “In this case it is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.” See Fla.Std.Jury Instr. (Crim.) 2.09 (1976).

      . This court’s holdings to the same effect in Dent v. State, 391 So.2d 742 (Fla. 4th DCA 1980); Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972); and Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972), were implicitly affirmed by the Supreme Court’s holding in Hoffman v. State, supra. Hoffman qualified the Supreme Court’s holding in State v. Beamon, 298 So.2d 376 (Fla.1974). It now appears that cases following the dicta in Beamon that particulars are cast in stone without regard to prejudice, see e. g., Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980), are overruled, sub silentio, by Hoffman. Since the present case does not involve the slightest reliance by Gaines on the June 21 date or any embarrassment to his defense in the jury’s presence, a circumstance which provoked Judge Anstead’s dissent in Stang v. State, 403 So.2d 542 (Fla. 4th DCA 1981), we need not, as this court did in Stang, certify to the Supreme Court the question of whether Beamon or Hoffman controls this case. Moreover, we add that we consider that the Hoffman holding is not confined to situations where the State formally moves to amend and deem the trial court’s instruction in the present case, see n. 3, supra, the functional equivalent of amending any statement of particulars.

      . Before trial, Gaines moved to suppress Farley’s testimony concerning the November 21, 1978, telephone call. The court denied his motion. At the outset of Farley’s testimony about the November 21, 1978, call, Gaines unsuccessfully renewed his pretrial motion and objected to Farley’s testimony. While Gaines’ counsel did not object to the individual questions put to Farley, his objection at the outset of Farley’s testimony was sufficient to preserve for appellate review the issue of the propriety of the admission of the challenged evidence and satisfy the contemporaneous objection rule. Compare Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361 (Fla.1942); Robertson v. State, 94 Fla. 770, 114 So. 534 (1927); Alvarez v. State, 400 So.2d 768 (Fla. 4th DCA 1981); Witt v. State, 388 So.2d 1 (Fla. 4th DCA 1980); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980); Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980); Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978); Stanley v. State, 357 So.2d 1031 (Fla. 3d DCA), cert. denied, 364 So.2d 891 (Fla.1978); Tennant v. State, 205 So.2d 324 (Fla. 1st DCA 1968) (where pre-trial motions to suppress were not renewed at trial contemporaneously with the introduction of the challenged evidence, error, if any, in suppression ruling was waived).
      The State argues, however, that Gaines’ failure to object to the testimony of John Carroll, an agent of the Palm Beach County Sheriff’s Office, constitutes a waiver of Gaines’ motion to suppress Farley’s testimony. This argument misses the mark. Carroll’s testimony was that he had called Gaines’ office in September 1978 and spoken to a person who identified himself as Gaines; that he later spoke to him in person and on the phone on several occasions; that he listened to a tape of the Farley-Gaines call of November 21, 1978, and the voice of Gaines on the tape matched the voice he had heard on the prior occasions. But Gaines’ objection to Farley’s testimony was that Farley identified Gaines’ voice as the one which approved the prescription on June 21, 1978, a matter that Carroll’s testimony did not, and could not, touch upon.

      . In Palmer v. Peyton, supra, the rape victim was told that the police had a suspect. Despite the fact that the victim had visually identified her attacker as being a certain height, wearing an orange shirt, and having a snug-fitting clothes bag over his head, the police made no effort at any identification other than voice. Before they asked the victim to identify the suspect’s voice, she was first shown the orange shirt, and the suspect, without a bag over his head, was then asked to repeat the exact phrase the victim said the perpetrator had used during the rape. In Thomas v. Leeke, supra, the robbery defendant was said to have spoken through a stocking over his head. When the police asked the victim to identify him, they told the victim they were taking him back to the defendant’s cell so that he could identify “the voice of the man who robbed them” and then had the defendant speak without a stocking over his head.


text:
    Carolyn NASH, Appellant, v. STATE of Florida, Appellee.
    No. 80-2102.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 23, 1981.
    Alan Jay Braver man, Law Offices of Alan Jay Braverman, P. A., Fort Lauder-dale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Wells v. State, 402 So.2d 402 (Fla. 1981).

LETTS, C. J., and HERSEY and GLICK-STEIN, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    Carmelina MESSINA, Appellant, v. Constance SCIONTI, Appellee.
    No. 80-1560.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 8, 1981.

      Joseph G. Spicola, Jr., of Spicola & Lar-kin, P. A., Tampa, for appellant.
    Albert Cazin and David M. Rieth, Tampa, for appellee.
   OTT, Acting Chief Judge.

Upon the death of Santa Mirabella, her son Sebastian and her daughter Constance Scionti, two of Santa’s seven surviving children, were appointed personal representatives of her substantial estate. On the last day of the statutory period for doing so, Constance filed a claim to title to the family home or, alternatively, $50,000, based on an alleged oral “life-care” contract.

The matter of Constance’s claim had been the subject of discussion ever since the probate proceeding was initiated. The heirs were divided on the issue of her entitlement. Sebastian, Constance’s brother and co-representative, favored the claim. Appellant and some of the other heirs did not.

The day before the claim was filed appellant’s attorney, Spicola, called Boggs, the attorney representing the co-representatives, Constance and Sebastian, in the probate proceedings. Spicola inquired whether Constance had filed her claim. Receiving a negative response, Spicola urged Boggs to let him know promptly if a claim should be filed. Boggs advised Spicola that if Constance did file a claim against the estate the probate court would be required to appoint an administrator ad litem under section 733.308, Florida Statutes, and probate rule 5.120, and the time for objecting to the claim would be tolled until the court did so.

The next day Constance visited the office of her personal attorney and signed her claim, which her attorney then filed in the clerk’s office. The claim is on a standard form prepared by or at the recommendation of The Florida State Bar, but there was one significant alteration. In the lower left corner, which contains a space for the clerk’s statement of the date on which a copy of the claim is mailed to the attorney for the personal representative of the estate, the word “attorney” was scratched out. As a consequence, Boggs never received a copy of the claim. The copy was sent to Constance’s co-representative, Sebastian, but he did not mention that fact to Boggs until after the time for objecting to the claim had expired.

Appellant learned of the filing of the claim after the time for filing objections had run. Nevertheless, she proceeded to file her formal objection. Constance, in her individual role as claimant, moved to strike the objection as untimely. Appellant then filed a motion, under section 733.705(3), Florida Statutes, for an extension of time within which to file an objection to the claim. The record does not reveal a specific ruling on that motion, other than the denial implicit in the order made by the court on June 2, striking the objection to the claim and observing, inter alia, that good cause for an extension had not been shown.

On June 11 appellant filed a motion for rehearing and on July 1 she filed a motion for the appointment of an administrator ad litem. On July 2, which was the last day for filing an appeal from the June 2 order, the court (1) continued the hearing on appellant’s motion for rehearing and (2) signed a nunc pro tunc order formally declaring the proceeding adversary in nature from the outset. Appellant’s motion for rehearing was denied July 22 and her motion for the appointment of an administrator ad litem was denied July 31. On August 20 appellant filed an appeal of the June 2 order striking her objection to the claim and two days later Constance filed a cross appeal of the nunc pro tunc order on July 2, certifying the adversary nature of the proceedings.

TIMELINESS OF APPEAL

Before addressing the merits of the appeal, we will consider appellee’s threshold contention that the appeal was not timely and should be dismissed. Resolution of that issue hinges on the propriety of the nunc pro tunc order signed July 2, declaring that the controversy over the claim had been adversary in nature at all times since the claim was initially filed.

The significance of that order is that until January 1, 1981, the Florida Rules of Probate and Guardianship Procedure contained no provision for motion for rehearing. Consequently, the time to appeal a probate order was tolled by such a motion, under rule 9.020(g), Florida Rules of Appellate Procedure, in only those proceedings determined to be “adversary” and thus governed by the Florida Rules of Civil Procedure. Fla.R.P. & G.P. 5.025. Appellee concedes the right of the court below to make such an order, but challenges the right of the court to give it retroactive effect. Specifically, appellee argues that substantial rights are affected by such an order, and thus it must be in effect at least as early as the motion for rehearing. Otherwise, asserts appellee, the illegal motion is void for all purposes and cannot be given vitality by a subsequent determination that the proceeding was, at the earlier date, adversary in nature.

We see no infirmity in the order in question. The rule permitting it contains no limitation on when it may be entered, and thus we are left with only the traditional considerations of due process and basic fairness. We do not agree with appellee that her substantive rights were impermissibly infringed by the order. Its sole effect was to extend the date by which an appeal from the order of June 2 would have to be filed. It was made within the unextended time for appeal from that earlier order. Parallels can easily be drawn to extensions of statutes of limitation, which are considered free of “ex post facto” taint if made before the expiration of the statutory period in effect when the cause of action arose. United States v. Richardson, 512 F.2d 105, 106 (3d Cir. 1975); Reino v. State, 352 So.2d 853, 861 (Fla.1977).

It would be different, of course, if some attempt were being made to revamp the procedural rules and then fault one of the parties for noncompliance with the hindsight standards. That is not the situation here, however. We think appellee was not really prejudiced by the nunc pro tunc order, because had the court refused to make it appellant would simply have filed her notice of appeal that day.

We believe the appeal was timely filed, and therefore we reject appellee’s assertion that it should be dismissed.

TIMELINESS OF OBJECTION TO THE CLAIM

Appellant contends that her objections to the claim were timely filed because the statutory period for filing such objection was tolled when Constance, one of the joint representatives, filed a personal claim against the estate which had been entrusted to her care. We agree.

When the executor or administrator of an estate files a personal claim against the estate, the probate court must appoint an administrator ad litem, and the time for filing objections to that claim is tolled until the court does so. In re Shambow’s Estate, 5 So.2d 454 (Fla.1942); Estate of Verdier, 281 So.2d 543 (Fla.2d DCA 1973); Edmonson v. Frank J. Rooney, Inc., 171 So.2d 566 (Fla.3d DCA 1965). Appellee concedes that rule, but argues that it applies only where there is but one personal representative. She relies upon a California case, but it must be noted that the California Probate Code specifically provides that when one of two or more representatives of an estate is disqualified to act in a matter concerning the estate, the remaining representative or representatives are fully empowered to act alone. In Florida, however, multiple representatives must act in concert, and have no authority to act independently, regardless of the circumstances. § 733.615, Fla.Stat. Consequently, we think the Shambow rule governs, irrespective of the number of personal representatives, and this would be particularly true in circumstances such as those at bench, where there is a close relationship between the representatives and they are of a like mind regarding the merit of the claim.

The order of June 2, 1980, striking appellant’s objection to Constance’s claim, is REVERSED and the case is REMANDED to the court below for further proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.

      . Since the court chose to make a “nunc pro tunc” order, we are not called upon to determine whether it was necessary for the court to do so. As previously noted, rule 5.025 does not specify just when the order should be made. “As early as possible” would seem to be the practical answer, but a later determination, such as the one under review, would conceivably have retroactive effect even without specifically directing it.

      . California Probate Code, § 570.


text:
    Norma BARO, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI SPRINGS and Southeast Banking Corporation, Appellees.
    No. 80-1833.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Dec. 18, 1981.

      Nachwaiter & Falk and G. M. Naehwai-ter, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Following our opinion in Baro v. Southeast First National Bank of Miami Springs, 363 So.2d 397 (Fla.3d DCA 1978), the matter recurred in the trial court, resulting in a jury verdict for the defendants and a final judgment was rendered thereon. This appeal ensued.

The points for reversal are: (1) That the trial court erred in refusing to permit the plaintiff to testify that she was found not guilty in a Federal court proceedings on the alleged crime which formed the basis for her discharge from employment. (2) That the trial court erred in refusing to permit the plaintiff to amend and submit to the jury a claim of slander. (3) That the trial court erred in refusing to submit the question of punitive damages to the jury. (4) That the trial court erred in its instructions to the jury as to malice. We affirm.

Evidence of acquittal of a criminal conviction is not appropriate in a civil proceeding, generally. Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla.1956); Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174 (1947); State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943); 23 Fla.Jur.2d, Evidence and Witnesses, § 321. This is particularly true in the instant case, wherein the defendants did everything in their power to keep this evidence of criminal prosecution from the jury. The matter was brought to the attention of the jury by counsel for the plaintiff, and we find no error in the trial court’s refusing to permit additional evidence in this regard because the plaintiff never should have brought it to the civil trial in the first instance. A different result might have obtained if the defendants had initially brought the matter to the attention of the jury. See and compare: Shoup v. Mannino, 188 Pa.Super. 457, 149 A.2d 678 (1959).

The issue of slander was never pled formally and we find no abuse of discretion in the trial court refusing to permit an amendment to conform to the evidence. Martinez v. Clark Equipment Company, 382 So.2d 878 (Fla. 3d DCA 1980); Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974); Dunn v. Campbell, 166 So.2d 217 (Fla. 2d DCA 1964).

We find no error in refusing to submit the question of punitive damages to the jury, as there was no sufficient basis in the record to warrant it. Tuel v. The Hertz Corporation, 296 So.2d 597 (Fla. 3d DCA 1974); St. Peterburg Sheraton Corporation v. Stuart, 242 So.2d 185 (Fla. 2d DCA 1970); Winn & Lovett Grocery Company v. Archer, 126 Fla. 308, 171 So. 214 (1936). Further, the effect of the jury verdict on liability rendered this point moot. Tennant v. Vazquez, 389 So.2d 1183 (Fla. 2d DCA 1980); LeJuene Road Hospital, Incorporated v. Watson, 171 So.2d 202 (Fla. 3d DCA 1965); McLain v. Pensacola Coach Corporation, 152 Fla. 876, 13 So.2d 221 (1943); 17 Fla.Jur.2d, Damages, § 114.

Finally, the plaintiff tendered no written instructions in accordance with Rule 1.470(b), Rules of Civil Procedure. The trial judge gave the standard jury instruction as to what constitutes “malice” in a libel action. Therefore, we find no error in tliis regard. Jackson v. Harsco Corporation, 364 So.2d 808 (Fla. 3d DCA 1978); Ellis v. Golconda Corporation, 352 So.2d 1221 (Fla. 1st DCA 1977).

Therefore, for the reasons above stated, the final judgment on the jury verdict be and the same is hereby affirmed.

Affirmed.

      . The defendants proposed a verdict form which would have contained aspecial interrogatories. Plaintiffs counsel objected and requested the general verdict form, which was used.

      . See and compare: Judge Hubbart’s concurring opinion in Owner’s Adjustment Bureau, Inc. v. Ott, 402 So.2d 466, at 470, (Fla. 3d DCA 1981).


author: SHARP, Judge.

text:
    EXCEL INSURANCE COMPANY, a foreign corporation, Appellant, v. Charles BROWN, Appellee.
    No. 80-1123.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.
    Rehearing Denied Dec. 11, 1981.

      Richard W. Driscoll, Fort Lauderdale, for appellant.
    William H. Roundtree, Cocoa, for appel-lee.
   SHARP, Judge.

Excel, the defendant below, appeals from the lower court’s denial of its motion to transfer venue from Brevard to Broward County. It argues that its insured, Brown, failed to plead and prove facts to support venue in Brevard, and that a venue ruling in a prior lawsuit filed by Brown against it in Brevard, where the court transferred venue to Broward, is res judicata or the “law of the case.” On the basis of the record in this case, we affirm the lower court.

On August 24, 1978, Brown sued Excel in Brevard County to recover the balance of PIP benefits he claimed were due him under his insurance policy with Excel. On January 26, 1979, the trial court granted Excel’s motion to transfer venue to Bro-ward. Brown voluntarily dismissed that case on May 7, 1980, and refiled this suit in Brevard the next day. No part of the first suit was made a part of this suit other than a copy of the order transferring venue, which was attached to Excel’s motion to transfer venue in this case.

The lower court denied Excel’s motion to transfer venue for the following reasons:

3.Defendant is a foreign corporation with no principal place of business in Florida. It does presently sell non-auto insurance in Florida through various independent insurance agents. In this regard, Broward County enjoys no venue advantage over Brevard under Sec. 47.-051, Fla.Stat., since there is no showing or allegation that such an agent exists in Brevard or Broward County.
4. The cause of action sued upon is a transitory cause of action. Firemen’s Ins. Co. of Newark, New Jersey v. Olson, 176 So.2d 594 (Fla.3d DCA 1965). As a suit or a contract, it can be maintained where the breach occurred. The cause of action, if any, accrued when the defendant violated its contract by failing to pay the claim. Firemen’s Ins. Co. of Newark, New Jersey v. Olson, supra. The place of payment is where plaintiff resides. This is Brevard County.
5. That the request of transfer from Brevard County as inconvenient forum should be denied.
6. That the law and facts now before the court support venue in Brevard County. Plaintiff is not estopped by the previous ruling of the court since an appeal of venue decision may be had after final judgment, even though no interlocutory appeal was taken under Fla.R.App.P. 9.130 (compare 85 A.L.R.2d 993).

A cause of action on a contract accrues and venue is proper in the county where performance is required. Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA), cert. denied, 392 So.2d 1378 (Fla.1980); James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla.2d DCA 1970). Where the default involves failure to pay money and no place of payment is expressly agreed upon, it is generally implied that payment is to be made in the county where the payee resides. Duggan v. Tomlinson, 174 So.2d 393 (Fla.1965); U.S.H. Properties Corp. v. Intercoastal Investments, Inc., 331 So.2d 385 (Fla.2d DCA 1976). The lower court determined that Brown resided in Brevard County at the time the second suit was filed and appellant did not establish error in this determination.

Excel argues this court should follow the California cases which have held that principles of estoppel and res judicata apply to venue determinations except where the plaintiff pleads and proves changed conditions since the entry of the prior order. See Gaskffl v. Richmaid Ice Cream Co., 111 Cal. App.2d 745, 245 P.2d 53 (1952); People v. Spring Valley Co., 109 Cal.App.2d 656, 241 P.2d 1069 (1952); Plum v. Forgay Lumber Co., 118 Cal.App. 76, 4 P.2d 804 (1931). This appears to us to be a cogent rule of law consistent with the only case in Florida which has touched on this question. In E. O. Painter Fertilizer Co. v. DuPont, 54 Fla. 288, 45 So. 507 (1907), the court stated by way of dicta that where a suit was terminated by a directed verdict on the ground that venue was improper, the final judgment could become res judicata as to the venue issue only. This dicta would not preclude a different ruling on venue should the relevant conditions regarding venue change.

In this case, however, Excel did not ask the trial court to take judicial notice of the records in the prior suit, nor did it produce enough of these records to establish the identity of the two suits. A party seeking to assert res judicata has the burden of affirmatively proving this defense. Excel merely pled res judicata in this case. It failed to establish it by affidavit, verified motion, or other manner.

The rule is well established in Florida that a plaintiff need not allege or prove facts in support of his venue selection, absent a sufficient challenge by the defendant. Thus, even if we followed the California rule, Brown would not at this juncture be required to file affidavits or produce evidence that there was a change of circumstances affecting venue after the first ruling on venue, because Excel failed to establish that the two suits were identical and that res judicata should be applicable.

AFFIRMED.

      . See Fla.R.App.P. 9.130(a)(3)(A).

      . §§ 90.202(6), 90.203, Fla.Stat. (1979).

      . See Kostecos v. Johnson, 85 So.2d 594 (Fla. 1956); Bergeron Land Development, Inc. v. Knight, 307 So.2d 240 (Fla. 4th DCA 1975).

      . Gulf Tampa Drydock Co. v. Germanischer Lloyd, 634 F.2d 874 (5th Cir. 1981); deCancino v. Eastern Airlines, Inc., 283 So.2d 97 (Fla.1973); Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445 (1946).

      . Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955); Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA), review denied, 392 So.2d 1378 (Fla.1980).

      . Gann v. Levitt & Sons, Inc., 193 So.2d 200 (Fla. 4th DCA 1966); City of Coral Gables v. Brasher, 132 So.2d 442 (Fla.3d DCA 1961).


author: BERANEK, Judge.

text:
    BAGS BY ANDE, INC., a New York Corporation, Appellant, v. H. William SCHILLING, d/b/a Boca Bags and Feminine Touch, Appellee.
    No. 79-2367.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.

      Peter N. Hanna, Fort Lauderdale, for appellant.
    Robert L. Beals of DiGiulian, Spellacy & Meyer, Fort Lauderdale, for appellee.
   BERANEK, Judge.

Pursuant to Florida Rule of Appellate Procedure 9.130(a)(5), plaintiff appeals from an order setting aside a final judgment. We reverse.

Plaintiff filed suit against H. William Schilling, d/b/a Boca Bags and Feminine Touch. The suit alleged plaintiff’s delivery of certain merchandise to defendant’s business for which payment had not been made. Personal service was effected on H. William Schilling, but no responsive pleadings were filed and a default and subsequent final judgment were entered. The judgment, which was based upon sworn proof as to the unpaid for merchandise, was entered on August 3, 1979. On September 14, 1979, defendant filed a motion to vacate the judgment pursuant to Florida Rule of Civil Procedure 1.540(b). This motion recited that defendant Schilling was not connected with the entities Boca Bags and Feminine Touch as an individual, but was instead doing business under these names as fictitious names for the Cove Patio Corporation, of which defendant was president. The motion further stated that Schilling had advised plaintiff’s counsel that the proper defendant to the suit was the Cove Patio Corporation and that settlement of the case would be made upon a showing of signed purchase orders. The motion asserted that plaintiff’s counsel had negotiated with Mr. Schilling in such a fashion as to mislead him into believing that settlement would be made and a default would not be entered.

An evidentiary hearing was held on the motion to vacate and, by order of October 30, 1979, the motion was granted. The court found that the defendant, Schilling, had not been misled by any statement or action of counsel for plaintiff so as to constitute grounds for relief under Florida Rule of Civil Procedure 1.540(b). Despite this ruling, the court concluded that there was a substantial question as to the proper party defendant, that is, whether the defendant should have been Mr. Schilling, individually, or the Cove Patio Corporation. The court concluded that the entry of a judgment “against the wrong party defendant would constitute a mistake under Florida Rule of Civil Procedure 1.540(b)” and, on this basis, vacated the judgment.

The law is clearly established that a motion to vacate a default judgment should be granted only upon a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules of procedure. Winter Park Arms, Inc. v. Akerman, 199 So.2d 107 (Fla. 4th DCA 1967). Both elements are essential. Chaney v. Headley, 90 So.2d 297 (Fla.1956).

We conclude that the trial court erred herein because defendant failed to demonstrate any legal excuse in the nature of excusable neglect, mistake, or inadvertence for the failure to file responsive pleadings. The court expressly found against the defendant on the allegation that defendant had been misled by the actions of plaintiff’s counsel. In the face of this finding, the motion to vacate was totally deficient as to the element of an excuse for failure to file a responsive pleading.

The order setting aside the final judgment below is hereby reversed and the matter remanded to the trial court with instructions to reinstate the judgment.

REVERSED AND REMANDED.

LETTS, C. J., and MOORE, J., concur.


author: LETTS, Chief Judge.

text:
    Dale Jerome THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 81-424.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Rehearing Denied Dec. 23, 1981.
    Richard L, Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

After a quarrel, the defendant fatally stabbed the victim. He was charged with and tried for second degree murder, but the jury brought back a third degree verdict. The defendant claims on appeal that his sole theory at trial was self defense and therefore there was no underlying felony to sustain a third degree murder instruction which he requested. See Mahaun v. State, 377 So.2d 1158 (Fla.1979).

We find this argument without merit, and write on it only to prevent its repetition as a point on appeal in the future.

We are only too familiar with our Supreme Court’s absolute requirement that the jury be instructed on lesser degree and lesser included offenses, Brown v. State, 206 So.2d 377 (Fla.1968) and Fla.R.Crim.P. 3.490, so that it may exercise the power of “jury pardon.” Lomax v. State, 345 So.2d 719 (Fla.1977) and State v. Abreau, 363 So.2d 1063 (Fla.1978). Obviously third degree murder is a lesser degree offense than second degree murder. Consequently the third degree instruction was mandated, requested and most certainly not objected to by the defense.

Pursuant to the instructions submitted, the jury apparently went ahead and exercised its power of jury pardon which the defendant now maintains it could not do.

Both this author and Judge Beranek have, in other cases, expressed considerable puzzlement over the doctrine of jury pardon. See Keenan v. State, 379 So.2d 147 (Fla. 4th DCA 1980) and Reddick v. State, 380 So.2d 1330 (Fla. 5th DCA 1980). Reddick is particularly interesting in that the Supreme Court totally ignored our version of Reddick’s, to us, logical criticism of the doctrine and tersely reversed us for the trial court’s failure to instruct on the next immediate lesser included offense. See Reddick v. State, 394 So.2d 417 (Fla.1981). Accordingly, jury pardon is still a viable doctrine insisted upon by our Supreme Court and we must adhere to it.

We, therefore, reject the heads-I-win-tails-you-lose argument advanced here by the defendant. He had the inalienable right to a third degree murder instruction and would be before us now successfully appealing any absence of same. He submitted the very instruction which he now claims was erroneous and the jury was so charged. Let him not be heard to complain. See Killen v. State, 92 So.2d 825 (Fla.1957).

We find no merit in the other points on appeal.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.

      . Mahaun is cited to us by the public defender but its factual setting makes it far from apropos here. In the instant case the defendant was charged with second degree and convicted of third. In Mahaun he was charged with third degree only.


text:
    Michael NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1238.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Rehearing Denied Dec. 23, 1981.
    Michael S. Nelson, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from denial of appellant’s petition for writ of habeas corpus. The basis for relief at the trial level was violation of the speedy trial rule in the proceedings which led to appellant’s conviction. Habeas corpus may not be used as a vehicle to raise issues appropriate for direct appeal. Hargrave v. Wainwright, 388 So.2d 1021 (Fla. 1980). Appellant indicates in his brief that the time for appeal from his conviction has not ripened. If that be the fact, then the rule we rely on applies with even greater force. See Ferenc v. Thursby, 212 So.2d 887 (Fla. 1st DCA 1968).

AFFIRMED.

LETTS, C. J., and HERSEY and GLICK-STEIN, JJ., concur.


author: McCORD, Judge.

text:
    Twylo BARNES, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-473.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Rehearing Denied Dec. 23, 1981.

      Conrad C. Bishop, Jr., of Weed & Bishop, Perry, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant Twylo Barnes appeals her conviction after trial by jury of second-degree murder of her husband. We reverse and remand for a new trial.

Appellant asserts that she provided a plausible explanation of the incident resulting in her husband’s death, which established that she acted in self-defense and, therefore, the trial court erred in denying her motion for judgment of acquittal. Although appellant’s explanation was plausible, some other evidence was not consistent in all respects with portions of her account. Thus, guilt was properly submitted to the jury, although there was a paucity of evidence to refute her defense.

As mentioned above, at trial appellant’s defense was self-defense. It was based on her claim that her husband had a tendency to act violently and had threatened her on previous occasions as well as on the occasion in question and on that occasion he was attempting to get a gun to kill her when she shot him.

During cross-examination of appellant’s daughter by a previous marriage, defense counsel questioned the daughter regarding an argument between the deceased and appellant during the week before the deceased’s death. The state objected, and the court sustained the objection on the ground of irrelevancy and refused to hear appellant on that point. Later, defense counsel attempted to question appellant as to her knowledge of a previous fight between the deceased and another man for which the deceased was facing aggravated assault charges at the time of his death. The court sustained the state’s objection to that testimony and no proffer was sought by appellant.

Appellant argues that the above lines of questioning were relevant to her claim of self-defense. We agree. There was no proffer of the excluded testimony, however, and we are, therefore, unable to determine whether or not the answers, if given, would have been relevant to show a violent nature of the deceased, threats toward appellant, her knowledge of his violent propensities or her fear of him, but under the peculiar circumstances of this case, which included evidence that the deceased had been sexually molesting appellant’s daughter, we consider that in the interest of justice, appellant should be granted a new trial. Compare Tribbs v. State, 397 So.2d 1120 (Fla.1981), in which the court said:

By eliminating evidentiary weight as a ground for appellate reversal, we do not mean to imply that an appellate court cannot reverse a judgment or conviction “in the interest of justice.” The latter has long been, and still remains, a viable and independent ground for appellate reversal. Rule 9.140(f) of the Florida Rules of Appellate Procedure (1977) provides the relevant standards: In the interest of justice, the court may grant any relief to which any party is entitled. In capital cases, the court shall review the evidence to determine if the interest of justice requires a new trial, whether or not insufficiency of the evidence is an issue presented for review.
This rule, or one of its predecessors, has often been used by appellate courts to correct fundamental injustices, unrelated to evidentiary shortcomings, which occurred at trial. Retrial in these circumstances is neither foreclosed, nor compelled, by double jeopardy principles. Each situation is unique.

Compare also Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977).

We have considered the remaining points raised by appellant and find them to be without merit.

Reversed and remanded for a new trial.

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


text:
    WORLD BANK, et al., Appellants, v. Gerald LEWIS, Comptroller of the State of Florida; Department of Banking and Finance, Appellees.
    No. AD-473.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Rehearing Denied Dec. 23, 1981.
    Raul A. Arencibia of Paul & Thomson, Miami (Sanford L. Bohrer, James D. Whise-nand, Miami, of counsel), for appellants.
    Elsa Lopez Whitehurst, Asst. Gen. Counsel, for appellees.
   PER CURIAM.

This is an appeal from an administrative order of the Comptroller denying World Bank’s application for a bank charter. On appeal, the appellants assert that the Comptroller’s failure to approve or deny their application within 180 days after receipt thereof results in approval of the application subject to the satisfactory completion of statutory requirements.

The organizers are foreign nationals who, on March 11, 1980, filed an application to organize a state chartered bank. The Department of Banking and Finance duly published notice of receipt of the application. The Department of Banking and Finance timely requested a hearing, and it was joined by The World Bank in Washington, D.C., which reserved its right to a hearing if the applicants refused to change the proposed bank name. During this period the Department requested additional information and the applicants responded. Ultimately, no administrative hearing was held in light of the Department’s continuing investigation and the applicants’ submission of alternative names. On January 16, 1981, the World Bank of Washington withdrew its hearing request, and on April 24 the Department withdrew its request. On April 30, DOAH advised the assistant general counsel of the Office of the Comptroller that it was closing its file on the matter in light of the withdrawal of the request for public hearing. The Comptroller on this date entered his order denying the application.

In a licensing proceeding involving foreign nationals, Section 120.60(4)(c), Florida Statutes, is controlling and provides as follows:

(c) Notwithstanding subsection (2), every application for license for a new bank, new trust company, new credit union, or new savings and loan association, and every application for acquisition of majority control of a bank, trust company, or savings and loan association involving a foreign national, shall be approved or denied within 180 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. Any application for such a license or for acquisition of such control not approved or denied within the 180-day period or within 30 days after conclusion of a public hearing on the application, whichever is the latest, shall be deemed approved subject to the satisfactory completion of conditions required by statute as a prerequisite to license and approval of insurance of accounts for a new bank, a new savings and loan association, or a new credit union by the appropriate insurer.

The appellees conceded in oral argument that the 180-day period in which the Comptroller must act on an application began to run on July 24, 1980. This concession is consistent with a letter dated August 22, 1980 from the Comptroller’s office notifying the applicants that requested information had been received on July 24, 1980, and the application was considered complete for further processing. In addition, an interoffice memo under the letterhead of Gerald A. Lewis, Comptroller of Florida, noted:

The application was deemed to be complete on July 24, 1980, consequently the 180-day time frame would expire on January 20, 1981.

It appears therefore that even by its own computation the Department did not comply with the 180-day statutory mandate.

The appellees’ fallback position is that a hearing was pending, and if it had been held the Department would have had 30 days after the conclusion of the hearing to approve or disapprove the application. This reasoning ignores Rule 3C-9.04(5), F.A.C., which requires DOAH to conduct a hearing on de novo state bank applications referred by the Department within 150 days of the date of application. The application was received by the Department on March 11, 1980, so a public hearing was required no later than August 9, 1980. The hearing officer may extend the date for good cause, but in this instance there was no request for an extension and none was granted.

We reject the appellees’ argument that the applicants, by complying with the Department’s request for additional information and agreeing that the matter was not ripe for public hearing, waived the rule or tolled the running of the 150 days. Our attention has not been directed to any rule or statute that would accomplish this result, and the Department has not provided by rule for such waiver or tolling of the applicable time limitations. If Section 120.-60(4)(c) is to have any meaning, the application for the bank charter must be deemed approved in this instance. We, therefore, reverse the Comptroller’s order and direct that the application for a charter be deemed approved, subject to satisfactory completion of statutory requirements.

We need not reach the question of sufficiency and propriety of evidence relied upon for denying the application since that denial is hereby reversed.

SHAW and THOMPSON, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author:
PER CURIAM.
      BERANEK, Judge,

text:
    Lena LUSTIG, Individually and as Executrix in and for the Estate of Edwin Lustig, Appellant, v. COLONIAL PENN INSURANCE COMPANY, Appellee.
    No. 80-1311.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 22, 1981.
    Paul A. Gamba, Stuart, for appellant.
    Robin A. Lloyd, Sr., of Jones, Foster & Moss, Yero Beach, for appellee.
   PER CURIAM.

This is an appeal by the personal representative of the insured from a summary judgment issued against her and in favor of the insurer upon the latter’s counterclaim for declaratory judgment. We reverse.

The issue before us is the extent of uninsured motorist coverage the insured had when killed by an uninsured motorist as the insured attempted to cross the street in Vero Beach.

The case is rather bare-boned in that the appendices are limited to the pleadings together with a copy of the insured’s application and a brochure allegedly given the insured by his insurer. The appendices and briefs establish that the insured executed an application for insurance which provided for uninsured motorist coverage of $15,000. The insured selected bodily injury coverage of $50,000 per person, $100,000 per accident, but the application form limited uninsured motorist coverage to $15,000.

Section 627.727, Florida Statutes (1979), the governing statute, provides inter alia:

(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. . . .
(2) The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the company’s rating plan as may be selected by the named insured, but in any event the insurer shall make available, at the written request of the insured, limits up to $100,-000 each person, $300,000 each occurrence, irrespective of the limits of bodily injury liability purchased, in compliance with the company’s rating plan.

Appellee alleged in its counterclaim that at the time it provided the insured with the application for insurance, which he signed, it also furnished a brochure. The brochure informed the insured that Florida Insurance Law required the insurer to make available uninsured motorist coverage with limits equal to the bodily injury liability protection which, in this case, would be $50,000/$100,000. The brochure provided a form an insured could fill out and sign, requesting the additional uninsured motorist coverage.

Appellant, in her answer to the counterclaim, alleged that she was without knowledge of the brochure having been furnished. Florida Rule of Civil Procedure 1.110(c) provides that a statement in an answer that a pleader is without knowledge operates as a denial. Here, we have no affidavit by the insurer that the brochure was furnished. Consequently, summary judgment should not have been awarded to the insurer in light of the denial by the personal representative of an informing offer. “There can be no informed rejection in the absence of an informing offer." Spaulding v. American Fire and Indemnity Co. (Fla. 4th DCA Case No. 80-1328, opinion filed Nov. 4,1981).

Accordingly, we reverse and remand for proceedings consistent herewith.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I would dismiss this appeal. I conclude that the order below is not subject to interlocutory appeal nor does the case represent a proper plenary appeal under Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). I conclude that the judicial labor has not yet ended in this matter, that the controversy is certainly interrelated with other aspects of the case which remain pending before the trial court, and that no final judgment appropriate to appellate review has yet been entered. I would dismiss the appeal without prejudice to the raising of all issues after final judgment.

      . Appellant in her answer to appellee’s counterclaim denied the insured’s execution of the application. Appellee’s statement of facts made the same allegation as the counterclaim and appellant did not dispute the allegation in her reply brief.

      . The brochure indicated that the uninsured motorist coverage could not be higher than the bodily injury liability limits selected by the insured, which flies in the face of Section 627.-727, Florida Statutes (1979). The insurer should have made known that upon written request of the insured, limits of $100,000/$300,-000 uninsured motorist coverage would be available. Notwithstanding this error on the insurer’s part, we do not believe solely on this basis that the insured would be entitled to a judgment that held the insured’s coverage was $100,000/$300,000 in the absence of a written request from the insured or of evidence that the coverage would not have been provided even if requested or that the insured selected the highest uninsured motorist coverage offered by the insured, i. e., $50,000/$ 100,000 here.